Bright v State of New South Wales

The injury

1. The plaintiff was injured on 23 September 2009. At this time the plaintiff had been stationed at Nyngan for more than three years. At the rear of the Nyngan Police Station has been erected, in what might be described as a yard or parking area, a demountable building. Photographs of this demountable building can be found in exhibit 7-7, a series of photographs taken at the Nyngan Police Station. The building has been described by Sergeant Jason Barker as being constructed of gyprock with a fibro cladding. It has two entrances. As one faces the demountable building the entrance on the left-hand side was the entrance to the office used by the Rural Crime Investigator and to the room in which electronically recorded interviews with suspected persons are conducted. I can shortly describe that room as the ERISP room. The entrance on the right-hand side of the building admits one to the office occupied by the duty officer and the office used by the Highway Patrol. Along the front of the building is a wooden verandah which has over it part of the roof of the demountable building. At, I infer, each end of the verandah there are steps leading from the verandah onto the yard area. The steps to the right-hand side of the verandah, as one looks at the building from its front, comprise two steps with a short riser from the second step onto the verandah itself. The right-hand side of the verandah is the closest side to the main police station building which, amongst other things, contains the cells and docks.
2. If a suspect is to provide an electronically recorded interview, it is necessary for the relevant police officers to escort the suspect out of the main police building, from its rear, across the yard and up the set of stairs on the right-hand side of the demountable and then to continue walking along the verandah until one reaches the entrance to the demountable building on its left side and then to go into the ERISP room.
3. At the material time the Rural Crime Investigator was Sergeant Jason Barker from whom the defendant has obtained a statement. The duty officer at the time was Inspector Scott Murray. At the time that the defendant sought to interview Mr Murray, he had "left" the NSW Police Force but the inference to be drawn, from what is contained in the investigator's report, which is annexure V to the affidavit of Daniel Tuxford sworn on 25 July 2017 (exhibit 3-3) was that he was still involved with the Police Force probably because of his pension entitlements which may well have been governed by the Police Regulation (Superannuation) Act 1906. The investigators retained on behalf of the defendant were unable to interview Mr Murray. However, a statement from him has been obtained by the plaintiff and has been served on the defendant by the plaintiff. It was not put before me. The relevant officer in the Highway Patrol at the time is identified in the statement of Sergeant Barker as being Steve Wynn but no statement has been obtained from him nor at this time has any attempt been made to obtain a statement from him.
4. In her affidavit of 21 August 2017 (exhibit B-B) the plaintiff said this about her accident: "4. On 23 September 2009 at approximately 10.25pm whilst in the course of my duties as a Police Officer I left the back door of the Nyngan Police Station and entered a demountable building situated at the rear of the Police Station. 5. When I finished the duties in the demountable building, I commenced walking down the stairs of the demountable building back to the Police Station, when I fell and suffered injuries. 6. I went…to the Nyngan Hospital the next day, 24 September 2009, where a fracture of my left wrist was diagnosed and I was put in a Plaster of Paris." The plaintiff's description of her injury was unusually brief.
5. In her statement of 15 March 2016 the plaintiff described her injury in greater detail. Her statement contains this matter: "27. At the time, there were around 6 to 8 Police officers stationed at Nyngan. 28. Attached is a sketch plan of the set out of the Nyngan Police Station as it was at the time of my injury. [Not attached to the actual exhibit.] 29. The Nyngan police station is a permanent structure built at the front of the property. At the rear of the property is a demountable building which housed in one room the Detectives and Rural Crime Office and interview room; and in the other the duty officer's office and the Highway Patrol office. The demountable building is separated from the main police station building by a distance of approximately 20 metres which is concreted. 30. Immediately at the back of the main building is a car park which had an awning over it. There were lights at the back of the main permanent building to light up the cars. However, such light did not travel a long distance because the light was obscured by the carport. [This can be seen in the photograph 8 of exhibit 7-7.] 31. When you reached the demountable building, there were some stairs to the left of the building and there was a sensor light just above the stairs. There was a verandah that went… the length of the demountable on the left side. 32. In the three years I was in Nyngan, we had many occasions to visit the police station as a family. We had quite a lot of social gatherings right at the back of the property at a bar area. The gatherings were held in the day, afternoon, and at night. The kids used to ride their bikes near the verandah of the demountable and they would often play on the verandah. The police community in Nyngan was a very close and tight knit one. 33. Before my injury of 23 September 2009, the sensor light on the demountable building had been playing up for some time. My best estimate that the light was playing up would be around six months, but certainly more than a month. Sometimes it would work, and other times it did not. Then after a while it just flickered on and off. Eventually it did not work at all. At the time I had my fall on 23 September 2009, it was not working at all. 34. My memory is that the faulty light had been an issue discussed with my superiors, including Inspector Scott Murray. The impression I had at the time was that jobs had been logged to have the light fixed before my injury. [In oral evidence, the plaintiff admitted that the only person to whom she had made any complaint prior to her injury was Inspector Murray.] 35. The main purpose of the sensor light was that if you are walking from the main building into the demountable building, or walking out of the demountable building back to the main building, you would have enough light to get down the stairs and get across to the car park before you got under the awning where the police cars were parked. As mentioned above, there were lights at the back of the main building that lit up the car park but the light did not extend past the cars because of the awning. The lights installed there would give you light to get in and out of the cars and the backdoor of the main building. 36. In addition, the back of the main building was accessible to the general public, and the area was meant to be lighted so that we could see if anyone was lurking about. You certainly did not want to be milling about in the pitch black given that anyone could walk around the back of the main building. 37. Because the sensor light was not working, it was pretty much pitch black at the stairs of the demountable building on the night of my injury. I think that there may have been enough light walking towards the demountable to make out the start of the stairs, but coming back the other way you could not see anything. 38. At least one officer per shift needed to access the demountable building at least once every shift. There were 3 shifts of 8 hours each. This is because there were certain protocols that had to be run every day. We have what is known as the CMF - which is an auditing system and we need to perform a bunch of checks each shift. We essentially had to perform an audit every shift on the equipment. On the night of my accident, I went to the building to check on the electronic equipment in the ERISP room, which was one of the requirements of the audit that was performed each shift. 39. On the day of my injury, I was conscious that I had to perform the checks before midnight, as the electronic book would click over to the next day without me [sic] having done the entries, and this was the case even though my shift did not finish until about 1am. 40. So, I was conscious that I had to get the checks done but I was not in a rush. There was no panic, as it was a fairly quiet night, and it was just a routine shift, and it was about 11pm when I went to go to the demountable building to perform the required checks so that I could log the information on the computer. [The time of 10.25pm contained in the plaintiff's affidavit is more accurate and accords with the time recorded in a contemporaneous document, an incident notification form (P902) made on 23 September 2009.] 41. When I left the main building to go to the demountable building that night, there were no lights on in the ERISP building. The fact that the sensor light was not working was not on my radar. I had been working day shifts and due to the nature of my duties, it may have been around three weeks or even longer since I had been called upon to access the demountable building at night. 42. My phone was in the main building on the desk. We do not carry torches. If I was [sic] to take a torch with me, it would need to come out of the equipment room and I would need to put an entry in the log that it was taken and it would need to be logged back in because all of the equipment is audited every shift. 43. We certainly were not told or directed to take a torch with us to the steps. There was none provided for the specific purpose of going to the demountable building and there was no temporary light situated to assist any illumination of the area. 44. So I started the journey to the demountable and I remember thinking when I was on my way up the stairs and noticed how dark it was: 'they still have not fixed that bloody light'. I was already at least halfway up the stairs when I realised the sensor had not activated so it made no sense to turn around. [In her oral evidence, the plaintiff said that she was at the top of the stairs when she realised that the sensor light had not switched on.] 45. I was being very careful in my movements as I did not want to trip. I was in no particular rush. 46. I went and performed the checks in the interview room (known as the ERISP room) and turned off the light in the room and locked the door. We are required to turn off the lights when we leave the rooms. 47. I then started the journey down the verandah to return to the main building. I was reaching out to the side of the verandah to count the poles so that I would be able to tell when I reached the stairs. I was very carefully and tentatively feeling for the last pole so that I knew that the stairs would be there. I would describe myself as moving with trepidation as I remember thinking, 'shit, I don't want to fall'. 48. I really had no options but to keep moving. I did not have a phone with me, I did not have a portable radio, and the other officer stationed that night would not have heard me if I yelled out. 49. Even though I was very mindful that it was dark and as a result I was walking slowly and carefully, in the complete dark I misjudged the top step and I thought I was still on the deck/verandah of the demountable building but in fact I put my foot over the top of the top stair. 50. When I became aware that I had gone too far, I twisted to the left to try and break my fall, but I put my wrist down quite violently and certainly much harder than I meant to, upon the very edge of the top step, and I felt immediate and quite significant pain in my left wrist. 51. I was able to get up easily enough, as I was on a set of stairs, and my bottom was on the second step, and I got myself into the main police building. 52. I reported the injury to the other officer on duty, Senior Constable Peta Hawke, and told her that I would finish my shift at midnight and get treatment the next day."
6. As ought be clear from what I have already interpolated in that statement, the plaintiff did report the incident to Senior Constable Hawke who generated the incident notification form to which I have referred. The description of the injury contained in the document is this: "I was walking from the Detectives Office and fell down three steps as there was no lighting." Immediately one must observe this: it is common ground that there was a sensor light on the demountable building; there is no dispute about that; there can be no dispute that the plaintiff advised the defendant in the contemporaneous report of injury that that light was not working at the time that she fell and injured her left wrist. LUNCHEON ADJOURNMENT

Post-injury history

1. I shall return to the issue of liability later. It is important to follow the subsequent history of the plaintiff to understand why the plaintiff seeks the leave that she does. At 3.45pm on the following afternoon the plaintiff telephoned the Nyngan Hospital and reported her fall on the preceding day and complained of increasing problems in her left wrist. She was enquiring as to when she would be able to see a doctor, as she was unable to see a general practitioner. The nurse who took the call explained to the plaintiff that there was no radiographer present at the hospital and that the doctor was not expected until late in the evening. Arrangements were made for a phone call to be placed to the plaintiff when she could see the doctor. She saw the doctor, Dr Chan, at 8.10pm that evening. The doctor's notes are very difficult to read. As best I can work out, they indicate that at 10pm on the previous evening she was walking from a building outside the police station to the police station when a sensor light did not work, leading to her slipping and falling down three steps. The provisional diagnosis was a fracture of the radial styloid of the left wrist. A back slab was applied by Dr Chan and a workers compensation certificate completed and the plaintiff was given a referral to the Dubbo Base Hospital. The certificate, on WorkCover stationery, says this as to how the injury occurred: "Slipped outside the police station whilst walking in." The referral letter to the Dubbo Base Hospital clearly states that the plaintiff injured her left hand or arm, when she fell onto an outstretched left hand. The doctor's notes indicate that the plaintiff had some affectation of the median nerve distribution of her palm and swelling on the ventral aspect of her wrist.
2. On the following day, 25 September 2009, she attended at the Dubbo Base Hospital, which helpfully recorded that the plaintiff was right-handed. According to the notes generated at the Dubbo Base Hospital, X-rays revealed an undisplaced fracture of the left radial styloid bone in good alignment. The plan was for the plaintiff to re-attend the Dubbo Base Hospital in a week and have a further cast applied, as well as a further X-ray.
3. Back in Nyngan the plaintiff saw Dr James Brown, who referred her to Dr James Scougall, an orthopaedic surgeon in Sydney. She managed to see Dr Scougall on 3 December 2009 and Dr Scougall arranged a CT scan. That was conducted in rooms adjacent to Dr Scougall's room in Macquarie Street on that day. According to the plaintiff's statement of 15 March 2016, that revealed no relevant abnormality.
4. However, the plaintiff's symptoms did not go away. She eventually obtained an appointment to see Dr Gareth Thomas at the Western Plains Medical Centre in Dubbo. That led to her undergoing an MRI scan of her left wrist. The plaintiff's statement then tells me that she was diagnosed with de Quervain's tenosynovitis, as well as a Triangular Fibrocartilage Complex injury. She was then referred by Dr Gareth Thomas to Dr Richard Lawson, a hand specialist practising in Sydney. She saw Dr Lawson on 16 January 2010. He provided her with a wrist brace and asked to return to see him in a month's time.
5. On 21 January, five days after she saw Dr Lawson in Sydney, she was given to a return to work plan, working for four hours per day for two days per week, which was valid until 24 March 2010. This was the first of many return to work plans which the plaintiff has been given.
6. Eventually Dr Lawson performed arthroscopic surgery on the plaintiff's left wrist in April 2010. According to the plaintiff's statement, that was to repair damage to her Triangular Fibrocartilage Complex. She also states that the doctor also separated tendons in the first dorsal compartment, I assume, of her left wrist.
7. I should indicate that no one has put before me any medical evidence other than the notes of the Nyngan Hospital and of the Dubbo Base Hospital, to which I have referred. That is fortunate because such medical records would probably fill at least one more lever arch binder of documents for me to "digest", if not two. I am dependent for medical diagnoses on material contained in the plaintiff's statement of 15 March 2016.
8. After the surgery Dr Lawson explained to the plaintiff that he found at operation problems with tendons that had not previously been detected by the MRI or CT scans. Nevertheless the plaintiff's symptoms persisted. She underwent a second operation on 1 June 2010. This was carried out at the Royal North Shore Hospital by Dr Lawson. There was some shortening of her left ulna bone and a tendon graft.
9. The plaintiff's statement, to which I have referred, indicated that she commenced to feel pain in her neck and left shoulder some time between the first and second operations. However, the plaintiff's affidavit indicates that the onset of symptoms in her neck and shoulder was between the third and fourth operations. The plaintiff was not cross-examined about that.
10. On 7 July 2010 the plaintiff contacted the Police Association. The records produced on subpoena by the Police Association are exhibit 9-9. The first file note, dated 7 October 2010 says this: "Amy is a post-88 officer [a member of the NSW Police who joined on or after 1 April 1988 and is not entitled to benefits under the Police Regulation (Superannuation) Act 1906], who had called in relation to issues concerning her [workers compensation] injury. Amy fractured her wrist back in September 2009 and hasn't been back on full duties since. Amy has been advised that the maximum improvement of her movement will be 85%. Amy has several surgeries and is due to have another one soon. Amy has had a lot of issues with Allianz and was required to get her husband to assist her. Amy would like to discuss her matter with you." Another officer of the Police Association spoke with the plaintiff later that day. The note made is this: "…advised Amy that her situation is very unique and not a usual set of circumstances. Advised that I would need to speak with MS [? Mick Spring] to ascertain her entitlements and her options to take on NSW Police for leave for her husband to care for her in the circumstances she has found herself in regarding her arm injury and caring for young children." That conversation is timed at 11.42. The notes go on to record a further conversation commencing at 11.43 with her husband.
11. The same exhibit contains an undated note, the substance of which is this: "Amy phoned about workers compensation post-88. [Spoke with] her and emailed legal assistance information to [plaintiff's email address]." The inference to be drawn from a careful perusal of the records produced on subpoena by the Police Association indicates to me that that email containing "legal assistance information" was sent to the plaintiff on or about 7 July 2010.
12. There is no dispute that at some stage the plaintiff contacted a solicitor whose name was provided to her by the Police Association. In her oral evidence the plaintiff said this at p 56 of the transcript: "I contacted the Police Association because the death and disability changes were happening at the end of 2011. So I contacted the Police Association to see if there was anything I could do to retain my job. I was concerned about my job security. They just gave me a list of solicitors that I could contact and I contacted one of those at Pennant Hills. I don't know his name." The notes of the Police Association do indicate that on 15 August 2012 there was interaction between the Association and the plaintiff about an income protection policy and cessation of 100% salary top up cover which cessation was to take effect on 15 October 2012. However, that was not in 2011. Furthermore, in 2011 there was interaction between the plaintiff and the Police Association about her transfer from Nyngan to Lismore. It became clear that the plaintiff used the list of solicitors provided to her by the Police Association to contact Mr Tom Edmunds of Messrs Baker and Edmunds who were then practising at 16/380 Pennant Hills Road, Pennant Hills. From my work in the Special Statutory Compensation List, I am aware of those solicitors who act for the Police Association and its members in respect to matters relating to workers compensation and/or superannuation. It became clear that the plaintiff had spoken to Mr Edmunds.
13. In her affidavit the plaintiff said this of her interaction with the man eventually identified as being Mr Tom Edmunds: "131. I gave him the run-down of the situation and he told me that my 'compensation' for my injury was that my medical expenses were being paid for and that I still had a job. 132. I was informed that unless my injuries were over 15% WPI that I wasn't eligible, and that to get 15% you needed to be completely blind or had lost two of your limbs. 133. I had no idea at that stage that I could bring a Work Injury Damages claim, and realistically at the time that I spoke to the solicitor, I most likely would not have reached the 15% WPI threshold anyway. 134. I had no way of knowing that within less than two years of that phone call I would need major neck surgery which would (eventually) take me well over the 15% WPI threshold." The only relevance to the 15% WPI threshold is to satisfy the requirements of the WorkCover legislation that permit a worker to commence an action for work injury damages against her employer. It is clear to me that the advice given to the plaintiff by Mr Edmunds was that unless the plaintiff was able to establish 15% WPI that she would not be entitled to recover damages at common law. I accept that that advice was given to her in or around July 2010 rather than towards the end of 2011. However, it is possible that at the same time Mr Edmunds may have mentioned to the plaintiff the three-year limitation period but before one could even contemplate bringing a claim for work injury damages one must first prove or establish or have it agreed that one has 15% WPI. There is no suggestion that the plaintiff could have done so in July 2010.
14. The plaintiff underwent her third surgery on 3 August 2010. That was performed at the Dubbo Base Hospital and was the removal of Kuntscher wire that had been inserted into her wrist by Dr Lawson and had worked itself loose and was protruding through her skin. The plaintiff had attended upon the Dubbo Base Hospital because of that problem and the operation was performed as a matter of urgency.
15. As I have earlier mentioned, the plaintiff said in her affidavit that she had the onset of neck pain and shoulder pain some time after this operation but before the fourth operation which was in September 2010. That was the removal of a second K wire that had been inserted into the plaintiff's body at the time of the second operation. When the plaintiff returned to work on this occasion she said that she noticed the onset of symptoms which were referrable to a left-sided carpal tunnel syndrome.
16. In March 2011 the plaintiff underwent a fifth operation by Dr Lawson at the Dubbo Private Hospital. There was a release of the left carpal tunnel and a trimming from the ulna of a bone spur which appears to have grown since the initial surgery on the bone on 1 June 2010.
17. After that surgery, probably seven weeks later, the plaintiff noticed the onset of symptoms in her right wrist, and a carpal tunnel syndrome and de Quervain's tenosynovitis were then diagnosed on the right side. On 20 July 2011, the plaintiff underwent her sixth operation, to her right wrist, under Dr Lawson at the Royal North Shore Hospital. There were releases of both the right carpal tunnel and of the de Quervain's tenosynovitis. One of the plaintiff's many returns to work was on this occasion on 14 September 2011.
18. In the second half of 2011, the plaintiff and her husband were seeking transfer from Nyngan to Lismore. This transfer appears to have occurred in late 2011 and led to the plaintiff's commencing work at Lismore on 24 January 2012. Initially, the plaintiff was working eight hours per week but that was increased with time to 20 hours per week. However, the plaintiff's symptoms did not go away. In fact, they recurred and increased.
19. On 20 July 2012, she underwent her seventh operation. This was carried out by Dr Lawson at the Royal North Shore Hospital. Again, the doctor released de Quervain's tenosynovitis in the plaintiff's right wrist. After that surgery, she returned to work in August, working 12 hours per week but was to increase that to 20 hours per week by the end of 2012.
20. Perhaps unfortunately, the plaintiff commenced to see a chiropractor, Dr Mark Skinner at Lismore, on 26 October 2012. That man believed the plaintiff's symptoms were coming from her neck. His advice to her is set out in [221] of her statement of 15 March 2016. That led to an MRI scan of her neck being performed in January 2013. According to [223] of the same statement, that showed a bulging of the disc at C5/6 with bone spurs at the same location, the largest spur being on the right-hand side. I assume that by "bone spurs" it is meant "osteophytes". According to the plaintiff's statement, it was suggested that the osteophyte on the right side was compressing her C6 nerve root. The plaintiff was then referred to Dr David Walker, a neurosurgeon based in Brisbane. She saw him on 10 February 2013. Dr Walker was not reluctant to use his scalpel. On 12 March 2013, the plaintiff underwent her eighth operation. There was a laminectomy and fusion at C5/6 performed at the Wesley Private Hospital in Brisbane.
21. This was followed by a complication. In [228] of her statement, the plaintiff said this: "Only just over two weeks post-surgery, on Friday 29 March 2013, I rolled over in bed and felt intense pain in my neck and right arm." On 8 April 2013, the plaintiff underwent her ninth operation. That was carried out at St Andrew's War Memorial Private Hospital in Brisbane. According to the plaintiff's statement, Dr Walker had decided that he was going to reperform the operative procedure previously carried out on 12 March 2013 and do a complete fusion of the vertebrae between C5 and C6, securing that fusion with plates and screws. However, that surgery did not relieve the plaintiff's arm pain. The plaintiff's statement records that Dr Walker agreed to waive all his fees for each of the operative treatments carried out on 12 March and 8 April 2013.
22. The plaintiff eventually returned to work on 25 May 2013 working 20 hours per week over three days. Shortly thereafter, the new claims manager for the defendant, EML, declined liability for the plaintiff's cervical condition. In other words, it disputed any causal relationship between the plaintiff's workers compensation injury of 23 September 2009 and the symptoms in her neck, the diagnosis made by the chiropractor, and the surgery performed by Dr Walker.
23. After the plaintiff's return to work on 25 May 2013, her pain continued to worsen. She then attended a general practitioner, Dr Nina Robertson at the Keen Street Clinic in Lismore. She requested a referral to another surgeon for a second opinion. Dr Robertson referred the plaintiff to Dr Laurence McEntee, a spinal surgeon on the Gold Coast of Queensland. The plaintiff saw Dr McEntee on 11 July 2013. He ordered a fresh MRI scan and nerve conduction studies. The nerve conduction studies were performed on 13 August 2013. The plaintiff then underwent discogram on 14 November 2013 at the Pindara Private Hospital on the Gold Coast. On the following day, she saw Dr McEntee. She said this about his advice in [247] of her statement: "He stated that he needed to remove the Anterior Cervical Discectomy and Fusion…at C5/6 and re-do it. He told me that the spine had not fused and was unstable. The plate had caused C6/7 to rupture and it needed an Anterior Cervical Discectomy and Fusion as well. Dr McEntee was not sure how much else he needed to fix until he was in there". This surgery, the plaintiff's tenth surgery, was performed on 16 December 2013. There was a revision of the discectomy and fusion at C5/6 and a total disc replacement at C6/7. This surgery was beneficial. The plaintiff said this at [250] of her statement: "In terms of my neck pain, there was a definite improvement from the nerve type pain I had been experiencing, but I still had pain running down my right arm and in my right shoulder blade area. To my mind, I thought it was still referred pain from the C6 area of my neck".
24. On 13 February 2014 the plaintiff saw Dr Casikar for EML. On 27 February 2014, EML reiterated its declining of liability for the plaintiff's cervical condition. The plaintiff then appears to have decompensated psychiatrically. On 10 March 2014, she was admitted to the Palm Beach Currumbin Psychiatric Clinic under the care of Dr Mark Scurrah, a psychiatrist. She was an inpatient for three weeks until 28 March 2014. She then commenced to see Ms Kirsten Black, a psychologist, whom she was to continue to see until the end of 2014. On 5 May 2014, she saw, for EML, Dr Trevor Lotz, whose specialty is not known to me, but the evidence before me suggests he might be a psychiatrist. There was another admission to the Palm Beach Currumbin Psychiatric Clinic on 23 May 2014 for a two week period ending on 7 June 2014. At [301] of her statement, the plaintiff indicates that she was re-admitted to that clinic because her depression was getting "worse and worse".
25. On 27 August 2014, the plaintiff saw Dr Michael Gliksman, who was qualified by her solicitor, Mr Brendan Bourke. The plaintiff had commenced to see Mr Bourke, a solicitor practising at Ballina, on 25 July 2013. I shall return to her interaction with Mr Bourke later in these reasons.
26. The plaintiff returned to work on this occasion in September 2014 on restricted duties. On 7 November 2014, the plaintiff commenced proceedings in the Workers Compensation Commission of New South Wales. On 11 November 2014, the plaintiff's solicitor, Mr Bourke, served upon the defendant's solicitor a copy of the statement of the plaintiff made on 27 August 2014. A copy of that statement is annexed to Mr Bourke's affidavit of 21 August 2017 as annexure D. It is not the same as the statement of 15 March 2016. The description of the plaintiff's injury is not as fulsome as that which I quoted above at [8], but that is understandably so because this statement was made for the purposes of the Workers Compensation Commission proceedings. However, [28] of that statement is this: "Despite many requests by police to the Local Area Manager of Darling River Local Area Command to do so, NSW Police had not yet fixed the lights that were situated upon the demountable building above the stairs, and when I was exiting the demountable building and going back to the main building I was doing so in absolute darkness."
27. On 10 February 2015 the plaintiff's application to the Workers Compensation Commission was listed for a conciliation conference before Mr Grahame Edwards, who is an arbitrator of the Commission, but formerly practised before me as a barrister. He may well still be a member of the Bar. It was noted that the plaintiff's claim for weekly payments of compensation was discontinued. It was agreed that the respondent would pay the plaintiff's medical and related treatment expenses incurred up until 5 February 2015 in the sum $87,000 on production of accounts and/or receipts. That agreement was to cover all consultations and operative procedures performed by Dr David Walker, Dr Laurence McEntee, Mr Skinner the chiropractor, Dr Duffy, Dr Wordsworth, Dr Noble, Dr Dauber, Dr Connor, Dr Walters, Dr Callinan, Dr Salanitri, Dr Norris, Dr Etches, Dr Alexander, Dr Johnston, Dr Patel and Dr Dean and for all hospitalisation expenses whilst the plaintiff was a patient at the Wesley Hospital, the St Andrew's War Memorial Hospital and the Allamanda Private Hospital. Mr Edwards noted that the respondent, the NSW Police Force, agreed to a finding as between the plaintiff and the Police Force that the applicant's cervical spine condition resulted from the injury to both her left and right wrists on 23 September 2009.
28. The defendant in these proceedings is the State of New South Wales. The NSW Police Force is not a body politic and corporate. The proper defendant in the Workers Compensation Commission ought to have been the State of New South Wales. The State of New South Wales is sued in these proceedings as being vicariously liable for the acts and defaults of the NSW Police Force, its Commissioner and the various sworn officers of that Force. Despite the difference in terminology, the effective defendant is the same, the State of New South Wales. The agreed finding operates as an admission by the defendant and probably is an estoppel (vide Administration of Papua New Guinea v Daera Guba (1973) 130 CLR 353, per Gibbs J at 453). Accordingly, it can be seen that the parties before me agreed on 10 February 2015 that the plaintiff's cervical condition, the condition of her neck, was causally related to what was initially an injury to her left wrist on 23 September 2009, which led to problems in the right upper limb and which ultimately led to the problems in the neck. That is an important development in the plaintiff's workers compensation claim and is important in these proceedings.
29. A fortnight later, on 23 February 2015, the plaintiff saw, at the request of her solicitors, Dr Chris Oates. The plaintiff described him in her affidavit as an Approved Medical Specialist. That he may be, but the plaintiff has not seen him in that role, but rather as a qualified medical advisor. Dr Oates diagnosed a 41% WPI (whole person impairment). The plaintiff's affidavit contains this matter: "75. I was made aware by my solicitor that I could not bring the within claim for Work Injury Damages unless the Whole Person Impairment ('WPI') arising out of the injury on 23 September 2009 was assessed as being not less than 15%. 76. I attended Approved Medical Specialist Dr Chris Oates on 23 February 2015 and he provided an assessment of 41% WPI, comprising: (a) 31% WPI in respect of my neck; (b) 5% WPI in respect of my right hand, wrist, arm and shoulder; (c) 9% WPI in respect of my left hand, wrist, arm and shoulder, which amounts to 41% when added together under the Combining Tables which form part of AMA V."
30. On the evidence before me that is the first time on which the plaintiff became aware that she had the possibility of establishing that she had WPI of 15% or more. However, the plaintiff had to have such a finding which was binding on both parties or had to have the agreement of her employer that she did have a WPI of 15% or more.
31. Just over a fortnight later the plaintiff served a claim for Work Injury Damages, a claim governed by s 281 and 282 of the Workplace Injury Management and Workers Compensation Act 1998 ("the 1998 Act").
32. Despite the opinion of Dr Oates, the plaintiff's condition could not have been said to be stable. On 11 May 2015 she underwent her eleventh operation, this time at the hands of Dr Mison. Dr McEntee told the plaintiff that he thought her problems were no longer in her neck and that the pain was coming from elsewhere in her body and that the plaintiff should obtain a referral to another orthopaedic surgeon, as Dr McEntee dealt only with spinal conditions. The plaintiff's general practitioner, Dr Robertson, then referred the plaintiff to Dr Mison. He carried out a further carpal tunnel release procedure on her right wrist.
33. A few days later, on 13 May 2015, the plaintiff and the defendant reached an agreement that she had 41% WPI and the defendant agreed to pay her the appropriate lump sum under s 66 of the 1987 Act and a lump sum of $30,000 under s 67 of the 1987 Act.
34. Section 281 of the 1998 Act provides that a person on whom a claim for work injury damages is made, must, within the time required by the section, determine the claim by accepting liability and making a reasonable offer of settlement or disputing the claim. Subsection (2) provides that: "A claim must be so determined: (a) within one month after the degree of permanent impairment first becomes fully ascertainable, as agreed by the parties or as determined by an approved medical specialist, or (b) within two months after the claimant has provided to the insurer all relevant particulars about the claim, whichever is the later." When the plaintiff's WPI was agreed on 3 May 2015, the defendant had one month in which to act in accordance with s 281. Rather than disputing liability or accepting liability and making a reasonable offer of settlement, the defendant delivered a request for further and better particulars on 9 June 2015. There was no immediate response by the plaintiff or her solicitors to that request for further and better particulars.
35. On 13 July 2015 the plaintiff returned to work after her eleventh operation.
36. On 8 September 2015 the plaintiff's solicitors delivered to the defendant's solicitors a letter requiring a decision on the plaintiff's work injury damages claim. No such decision could be "demanded" because the plaintiff's solicitor had not yet responded to the defendant's request for further and better particulars of 9 June 2015.
37. After the carpal tunnel release of 11 May 2015 the plaintiff had discussion with Dr Mison about the condition of her right shoulder. Dr Mison recommended that the plaintiff have an MRI scan and plain x-ray of her right shoulder. Those studies were performed in June 2015. Dr Mison diagnosed both tendonitis and bursitis of the right shoulder joint. He gave the plaintiff some cortisone injections. Eventually on 9 November 2015 he performed a right shoulder arthroscopy and open acromioplasty and repair of the rotator cuff of the right shoulder. That is the plaintiff's twelfth surgical procedure. I am not aware of any subsequent surgical interventions or major complications of the plaintiff's medical condition.
38. I do know that on 18 April 2017 the plaintiff was told by Inspector Bruce at Lismore that she was not to return to work until so advised. However, she then would appear to have been on early maternity leave. She gave birth to her third child, a boy, on 8 May 2017. She is currently on maternity leave. She told me in her oral evidence that she was taking six months maternity leave and that after that she was taking long service leave at half pay which would put her off work for another six months.
39. The plaintiff's initial claim for work injury damages on 24 March 2015 is addressed to both EML, to the solicitors acting for the defendant in the current proceedings and who were acting for the defendant in the Workers Compensation Commission proceedings, and also to the defendant itself. Amongst other particulars of negligence, these particulars were provided: "c. Failing to ensure that the subject demountable building and relevant walkways had appropriate and functioning lighting; d. Failing to ensure that the subject demountable building and relevant walkways had appropriate and functioning lighting after having received complaints and/or reports of there being no lighting; e. Requiring the plaintiff to work in an area where there was no or no adequate lighting;" Those particulars reiterate that, antecedent to the plaintiff's fall, complaints had been made about the inadequacy or non-functioning of the lighting in question. That of course was drawn to the defendant's attention in [28] of her statement of 27 August 2014 which was served upon the defendant's solicitor on 11 November 2014.
40. It appears that the plaintiff's solicitor wanted to have access to the Nyngan Police Station for the purpose of inspecting the scene of the plaintiff's accident, albeit that he had only been retained by the plaintiff on 25 July 2013, when the limitation period had expired on 23 September 2012. The question of pursuing a work injury damages claim could only arise after the plaintiff reached the statutory threshold of 15% WPI. As I pointed out, that was only agreed on 13 May 2015. However, anticipating that such would be agreed, the plaintiff served her first claim for work injury damages on 24 March 2015. I have already mentioned the defendants delivering a request for further and better particulars on 9 June 2015. The plaintiff's affidavit contains this material: "80. On 23 June 2015, my solicitor rang the solicitor for the defendant requesting permission for a representative to attend at Nyngan Police Station for the purpose of viewing the site of my accident, taking photographs and measurements and carrying out investigations which would allow an expert report to be commissioned as to the cause of the accident. My solicitor invited the solicitor for the defendant to jointly commission the Investigator, so we could both get a copy of the report. 81. My solicitor and the solicitor for the defendant went backwards and forwards on countless occasions regarding my solicitor's request for access to the Nyngan Police Station and/or permission to send an Investigator to the Police Station. 82. My solicitors did not receive photographs and the Investigator's report following on from an investigation at the Nyngan Police Station until 17 November 2016, 17 months after first requesting permission from the defendant to inspect the premises." I have considered the plaintiff's request for further and better particulars of 9 June 2015 and it appears to me that it probably prompted Mr Bourke to make the request for a view or for permission for an investigator to carry out a view on behalf of either the plaintiff or of both parties. For example, the request for further and better particulars contains these questions: "5.3 What elements of the lighting of the demountable building and relevant walkways does the plaintiff allege should have been altered or modified so as to make them more appropriate or functioning? 5.4 What alternative lighting does the plaintiff believe the defendant should have used? 6.1 Does the plaintiff allege there was no lighting in the subject demountable building and walkways? 7.1 Please identify what constitutes the 'area' as referred to in paragraph [10(e)]." However, as very properly pointed out by Mr Stanton, who appeared before me for the defendant, things may well have changed between 2009 and 2015. Equally, if such change could be identified by the plaintiff, it might indicate what was initially wrong with the lighting system in question.
41. On 18 January 2016 the plaintiff made a further application to the Workers Compensation Commission. On 18 January 2016, an officer acting on behalf of the Registrar of the Commission made a Direction requiring the defendant to produce a large amount of documents to the plaintiff by 26 February 2016. It also required the defendant to provide or allow the claimant, being the plaintiff, access to the Nyngan Police Station for inspection and the taking of measurements and photographs between 26 February 2016 and 3 March 2016. The direction of the WCC appears to have been completely ignored or overlooked by the defendant.
42. The defendant clearly had difficulties providing documentation to the plaintiff. One of the categories of documents, which the Direction of the WCC required the defendant to produce to the plaintiff, was this: "Copies of all correspondence (including electronic), file notes, notebook entries, reports, made to the Defendant in relation to the lighting in the demountable building at the rear of Nyngan Police Station for the period 1 January 2008 to 1 January 2010." The Direction also required the defendant to produce "a full copy of the maintenance logs of the Nyngan Police Station for the years 2007 to 2010 inclusive". Another category of documents was: "Copies of any investigation, risk assessment, hazard identification or risk analysis carried out by the defendant in relation to the demountable building at the rear of the Nyngan Police Station for the years 2007 to 2010, inclusive." Hardly any of this information has ever been provided by the defendant to the plaintiff.
43. On 1 February 2016 the plaintiff served upon the defendant a second or further or amended claim for work injury damages. Unlike the initial claim, this claim included an allegation that the plaintiff's right shoulder problems were causally related to the initial injury. That probably results from the further surgery, the twelfth operative procedure, performed by Dr Mison on 9 November 2015.
44. On 15 February 2016, a fortnight later, the defendant served another request for further and better particulars. This request for further and better particulars differs from the first request, but as the second claim for work injury damages, that of 1 December 2016, superseded the initial claim, the request for further and better particulars of 15 February 2016 should be seen as superseding an earlier request of 9 June 2015. In any event it has not been argued before me that the plaintiff has been in default for failing to supply such particulars as were requested on 9 June 2015.
45. The plaintiff answered that request for further and better particulars on 23 August 2016. The delay in supplying those particulars cannot be laid at the door of the defendants failing to serve the photographs and the investigator's report that had been requested back in 2015 because such were not served by the defendant upon the plaintiff until 17 November 2016, after the particulars were answered. Despite what is contained in [82] of the plaintiff's affidavit (exhibit B-B), I made a note when reading the voluminous evidence that the photographs in question were received by the plaintiff's solicitors on 17 September 2016, which is earlier than what is attested to by the plaintiff. I cannot readily find that reference at the moment. However, that date also post-dates the date of the delivery by the plaintiff of the plaintiff's answers to further and better particulars on 23 August 2016.
46. The defendant had a month after the delivery of those particulars to make a decision about the plaintiff's claim for work injury damages. That is the effect of s 281 of the 1998 Act. The defendant's solicitor on 21 October 2016 delivered to the plaintiff's solicitor what he refers to as a "Section 74 Notice" which is in fact a copy letter addressed by EML to the plaintiff care of her solicitors bearing date 26 September 2016 which purports to be a notice under s 74 of a 1998 Act. In that document the defendant's claims manager, communicated two decisions: "Based on the information on your file, we have decided [to] decline liability for your claim for work injury damages in accordance with s 281 of the [1998 Act]. In addition, because your claim has been commenced more than three years post the actual date of injury, under s 151D of [the 1987 Act], we maintain you are precluded from proceeding with your claim without the leave of Court."
47. On 14 December 2016 the plaintiff served a pre-filing statement comprising four volumes. On 11 January 2017 the defendant served a pre-filing defence comprising four volumes. On the following day the defendant made an application to the Workers Compensation Commission for a mediation. That mediation was appointed for 30 March 2017. However, at that mediation, the mediator ordered that a second mediation be conducted on 4 May 2017. That was the actual day on which the plaintiff gave birth to her third child. Accordingly, she could hardly be present at a mediation in Sydney. However those representing her must have done so. The mediation was unsuccessful and a certificate of mediation was issued on 10 May 2017. On the following day the plaintiff commenced these proceedings at Lismore. A pre-trial conference was held at Lismore on 28 June 2017 but that did not lead to a resolution of this litigation, hence the notice of motion that was filed on that day, 28 June 2017. ADJOURNED TO FRIDAY 15 SEPTEMBER 2017

The limitation period expired before the plaintiff could bring her claim

1. HIS HONOUR: The first matter to be noted is that the plaintiff could not have commenced a claim for work injury damages, or even commenced mechanisms to make such a claim, until she had established that she satisfied the statutory threshold for making such a claim. Section 151H(1) of the 1987 Act provides this: "No damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%." A note contained in the 1987 Act after that subsection refers to s 322 of the 1998 Act. Section 322 of the 1998 Act is in these terms: "Note: Section 322 of the 1998 Act provides that the assessment of the degree of permanent impairment is to be made in accordance with Workers Compensation Guidelines. That section also provides that impairments that result from the same injury are to be assessed together." One must observe that, under s 322(2), all the impairments that result from the same injury are required to be assessed together to assess the degree of permanent impairment of the injured worker. The plaintiff had impairments in each of her upper limbs and in her neck. It is clear from the assessment of Dr Oates that the impairment of the plaintiff's left upper limb only resulted in a 9% WPI; the impairment of her right upper limb resulted in a 5% WPI. Adding those two impairments together, without applying the Combining Tables, one reaches 14% WPI, which would not allow the plaintiff to reach the threshold provided by s 151H of the 1987 Act. It was therefore necessary for the plaintiff to establish or have it agreed that the impairment resulting from her cervical condition, was caused by the injury of 23 September 2009. As I pointed out yesterday, the parties only reached agreement that the plaintiff had established the threshold mandated by s 151H on 13 May 2015. Up until then the plaintiff could not commence her action for damages. At that time more than five and a half years had elapsed since the cause of action arose, exceeding the three years mandated by s 151D of the 1987 Act.
2. In written submissions prepared on behalf of the plaintiff by Mr Somerville, junior counsel for the plaintiff, who appeared at Lismore on 23 August 2017, a submission was made that by applying the provisions of s 151DA of the 1987 Act, one needed to add 68 weeks to the three year limitation period mandated by s 151D and that, therefore, the limitation period expired not on the 23 September 2012, but on 12 January 2014. That argument is contained between [20] and [26] of the submissions which have been marked 3 for identification. Mr Doherty SC, who on Wednesday and Thursday of this week, appeared before me in Sydney with Mr Hammond as his junior, agreed that the written submission was erroneous. Section 151DA specifies certain periods when time does not run when ascertaining the three year period. The periods of time described in s 151DA only arose after the three year limitation period had expired.
3. Eventually Mr Stanton, for the defendant, produced a written submission which I marked 4 for identification on this aspect of the case. His submission I accept to be a correct exposition of the law. Section 151DA cannot have any operation once the limitation period has expired. Section 151DA is designed to suspend the period provided by s 151D whilst one of the actions referred to in s 151DA is occurring. Mr Stanton then made this submission: "That is not to say that compliance with the statutory provisions relating to the commencement of Court proceedings are not matters properly to be considered in deciding if the applicant for leave has a full and satisfactory explanation for delay." He then discussed the two periods which arise as a result of s 151DA: "The first period is whilst the 'claim concerned' is delayed as permitted by s 281 of the 1998 Act. Section 281 requires the employer to determine the claim within one month after the degree of permanent impairment first became ascertainable…or within two months after the claimant has provided to the insurer all relevant particulars about the claim, whichever is the later. The 'claim concerned' relates to the claim the subject of the time bar and the subject of the proceedings: see Paper Coaters Pty Limited v Jessop [2009] NSWCA 1 at [11]-[12]. That claim was made by service of the notice of claim on 1 February 2016. The particulars were sought on 15 February 2016 and answered on 23 August 2016. Thus the suspension is from 1 February 2016 to 23 October 2016 (i.e. two months after the particulars were supplied). The period is also suspended once a pre‑filing statement is served. This occurred on 14 December 2016." In accordance with the submissions of Mr Stanton on behalf of the defendant, I accept that I can, to an extent, ignore delay occurring during the periods of suspension, that is between 1 February 2016 and 23 October 2016 and after the service of the pre‑filing statement on 14 December 2016. The second period is short and, in my view, of no moment. The preparation of a four volume pre‑filing statement is not something that could be rapidly done.

Delay

1. Relevant delay, accordingly, appears to me to be in the period from when the parties reached agreement as to the extent of the plaintiff's WPI on 13 May 2015, up until the plaintiff made her second claim for work injury damages on 1 December 2016. However, I do not completely ignore delay after 1 February 2016 because much of the delay was taken up by the failure of the plaintiff's solicitor promptly to respond to the request for further and better particulars made on 15 February 2016: the plaintiff's solicitor took over six months to respond to that request for further and better particulars. Ordinarily, I would consider a period of about four weeks to be more than adequate to allow a solicitor to answer a request for further and better particulars, because to answer the request would often require a further conference between the solicitor and his client and perhaps even a consultation with counsel.
2. One must consider what was going on in the plaintiff's life between the agreement reached on 13 May 2015 and the provision by Mr Bourke of particulars on 23 August 2016, a period of over 15 months. A guide to that is, in my opinion, contained in the plaintiff's statement of 15 March 2016, which was tendered by the defendant in its case. Commencing at [288] of that statement, the plaintiff detailed the psychological problems, in particular the treatment that she obtained in 2014. At [303], the plaintiff stated that she had problems resulting from the medication prescribed to her for her psychiatric condition that led to some chemical reaction. Eventually, the plaintiff was prescribed Nortriptyline. As at 15 March 2016, the plaintiff was still taking Nortriptyline but its dosage had been increased since that drug was initially prescribed. The plaintiff believed that the Nortriptyline had made a "big difference", meaning a big improvement in her depressive illness. She went on to say this: "307. In addition to the problems with my psychiatric medication, I am also very sensitive to pain medication. Anything stronger than a Panadeine Forte causes bad side effects, this includes emotional disturbances. I also get rashes and hives on my skin and some gastrointestinal issues. 308. So it is very hard for me to control my pain levels adequately. The main issue is trying to keep the pain under control to a degree where I can fall asleep and stay asleep at night. Therefore, over the years, I've turned to alcohol to not only control my pain levels but also help me sleep at night. 309. Even though the alcohol is effective in dulling the pain, it obviously causes a lot of other problems including anxiety. I know that it is not good to drink alcohol to excess so I consciously stop myself from drinking too much. I realise that it is merely a short term solution that is not for me in the long run, but occasionally I succumb and drink to put myself to sleep." … "311. Although I feel better psychologically, I still struggle with the day to day reality of having chronic pain and the realisation that I can't be an active member of my family. I feel really guilty when around Daniel and the kids because I can't be the wife and mother that I want to be. My tolerance levels are very low since my accident. 312. Since everything that has happened to me since September 2009, I have always been anxious to try and have some control over my life because everything seemed so out of control. So, I have become very controlling and rigid in my behaviour, so I am sure that I have been very hard to live with. Daniel often says to me: 'you are not fun to be around anymore. You are never spontaneous anymore.' 313. Whilst it is a very uncomfortable subject to bring up, the fact is there have been times over the last few years when I've contemplated whether things would be better if I was just not around. 314. Given everything that has happened and all my operations and all the stress, it has inevitably taken its toll on my marriage. There is so much I wanted to achieve in life, including my career. Daniel was part of those plans. The accident has changed the course of our lives for the worse. The way I interact with the kids has changed. I am forever distracted by my pain and I obviously can't do anything overly physical with them anymore. 315. Daniel took the job in Sydney in the beginning of 2015. I'm sure that if it weren't for my injury, we would never have contemplated physically separated [sic] for him to have employment. I am sure that he just needed time away because not only has this all happened to me, it has negatively impacted on his life as well. I know that he feels like it is never going to end. He has said things like: 'if the next 6 years is going to be anything like the last 6 years, I am out. I can't cope with it.' 316. Daniel has had to use so much of his recreational leave to be with the kids after surgery. Obviously, if it weren't for my injury we would have both used our recreational leave to have family time together, rather than Daniel taking time off to care for me post‑surgery and look after the kids."
3. There follows between [317] and [325] of the statement a summary by the plaintiff of her ongoing physical problems, which, in her view, extend to an interference with her voice. That may result from her cervical problem. Between [326] and [347] of her statement the plaintiff discusses her work and in particular, her repeated attempts to return to work and to stay in the workforce to continue to serve as a senior constable of police and of the numerous difficulties that she has encountered over the years.
4. In that section of her statement, the plaintiff says this: "341. The fact is, what happened to me on 23 September 2009 changed my life, and life of my family, dramatically. We were a young family full of hope and positivity with plans for the future. We had planned to settle in Lismore and live a wonderful life with Daniel and I working our way up as Police Officers. Lismore was the dream, and we had big plans. 342. It has closed the doors on a lot of opportunities. It was the plan that once Sasha would be going to school in 2013, I would pursue promotion and go as far in the NSW Police Force as I possibly could. I was very ambitious. As far as I was concerned, the sky was the limit. A realistic goal for me was to be a Leading Senior involved in training and mentoring of younger Police. Eventually, I wanted to be a Sergeant and an Inspector, and perhaps even further. I was very determined, and actually, still am very determined. I am just very much limited in what I can do now. 343. The events of 23 September 2009 and those flowing since have had a very negative impact on my marriage. Daniel moving to Sydney and taking a position there is essentially because things are just so shit. I don't like to swear in my statement, but really that is the best way to describe it."
5. I accept that during the period now in question, the plaintiff was seeking to deal with the absence of her husband regularly in Sydney with his work as a sergeant of police involved with the public transport system, dealing with her two school-aged children, trying to deal with her physical and psychological problems and trying at the same time to satisfy the various requirements of her employer, the NSW Police Force, the defendant. Having to deal with those problems, the plaintiff was also required to deal with her solicitor about the current proceedings which were then contemplated. I am acutely aware that the plaintiff in her affidavit does not refer to those things as the cause of the delay but to what she was told by her solicitor, about obtaining the cooperation of the defendant in providing such documentation as existed and allowing a view, which never occurred, but in the alternative, or an inspection by a private investigator hired on behalf of both parties, which is what ultimately occurred.
6. However, as I pointed out yesterday, that does not appear to have been the cause of delay of the plaintiff's solicitor in providing the particulars. Likewise, Mr Bourke did not give any evidence that he was impeded in providing particulars by the plaintiff's pre-occupation with other matters, but his evidence tended to suggest that it was the inability of the defendant to answer his requests for particulars and/or allow the view that was the impediment in progressing the matter. Solicitors can often need prompting. Solicitors can be very busy people. In cases of this nature it is often the litigant himself or herself who needs to goad the solicitor into action. The plaintiff had a lot going on in her life in 2015 and 2016, as I have sought to show. I accept that her ability to prompt Mr Bourke into action would have been gravely reduced.
7. In my view, the plaintiff has provided an adequate and sufficient explanation for the delay between the agreement reached as to the extent of her WPI and the delivery of the relevant particulars by Mr Bourke on 13 August 2016.

Legal principles

1. The relevant legal principles which I must apply in this matter have been conveniently summarised by McColl JA, with whom Meagher and Barrett JJA agreed, in Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 commencing at [44]: "44. Section 151D(2) does not spell out specific criteria to be taken into account by the court when exercising the discretion to extend the time to commence court proceedings sought to be commenced more than 3 years after the injury was received: cf s 58(2), 60C(2) Limitation Act 1969 (NSW); s 109 Motor Accidents Compensation Act 1999 (NSW). 45. Rather, as Ipp AJA (Spigelman CJ and Sheller JA agreeing) explained in Itek Graphix (at [87]), in the passage to which the primary judge referred, s 151D confers a broad discretion to grant leave to sue after expiry of the limitation period, in which context "the general question that has to be asked is what is fair and just ... [or] what does the justice of the case require?"; see also Sheller JA (at [2]). 46. The "justice of the case must be evaluated by reference to the rationales of the limitation period that has barred the action" (Itek Graphix (at [87]), including those to which McHugh J referred in Brisbane South (at 552 - 553)), they being that as time goes by relevant evidence is likely to be lost; that it is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed; the desirability for people in the community to be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them and the fact that the public interest requires that disputes be settled as quickly as possible. 47. McHugh J's rationales are those which underpin the notion of presumptive prejudice, a "prejudice [which] may exist without the parties or anybody else realising that it exists ... where important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed [where] ... time ... diminish[es] the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose": Brisbane South (at 551). 48. The effect of Brisbane South "is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant": Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 (at [119]) per Sheller JA (Meagher and Handley JJA and Brownie AJA agreeing). "Significant prejudice means such prejudice as would make the chances of a fair trial unlikely": The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 (at [96]). 49. In Itek Graphix following the passage to which the primary judge referred, Ipp AJA continued: "88. I have pointed out that the justice of the case is to be determined by its own individual circumstances. Often, a failure satisfactorily to explain the delay will not be decisive. Ordinarily, the issue of prejudice will be of paramount importance: Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 at [34] - [36]; Malone v New South Wales National Parks and Wildlife Service [2001] NSWCA 345 at [9]. Nevertheless, the justice of the case may be such that the failure to explain the delay and to prosecute the case with the requisite diligence will result in an extension of time being refused. 89. The rule that an applicant, who applies for leave to bring proceedings after a limitation period has expired, must provide a reasonable explanation for the delay (and show that there has not been an absence of diligence on his or her part) forms part of limitation legislation throughout the country and, independently, has long been recognised by the courts ... 90. The reason for this requirement is not hard to understand. A limitation provision is an expression of intent by Parliament that persons who wish to sue must do so within the stipulated time unless circumstances exist entitling them to obtain leave. A limitation provision is the general rule and an extension is the exception. In obtaining leave, a party is in effect obtaining an indulgence. To allow parties leave, when they have been careless of their rights and careless of the need to proceed with their disputes within the limitation period, would, ordinarily, be contrary to the justice of the case and would subvert the intent of Parliament. Just as the rules of court must prima facie be obeyed (Ratnam v Cumarasamy [1965] 1 WLR 8 at 12), so must the laws of Parliament." [I note that her Honour also referred to [89], see [26] above.] 50. It should be borne in mind, as Whealy JA (Hodgson and McColl JJA agreeing) explained in Nominal Defendant v Harris [2011] NSWCA 70; (2011) 57 MVR 492 (at [45]), that Ipp JA's comments "were intended to provide useful and cautionary guidance as to the way a court exercising a broad statutory discretion to extend a limitation period will ordinarily respond [but] do not ... supplant the language of the statute [nor] ... override the broad discretionary exercise entrusted to a court to take into account all the relevant circumstances in determining what is fair and just." 51. Where an extension of time is sought to extend time to bring proceedings pursuant to s 151D(2), "it is for the person seeking to be freed from the constraint imposed by the limitation statute to show that the relevant delay is not likely to make the proceedings unfair or to cause real prejudice to the proposed defendant, that is, the person having the benefit of the time bar": Gallagher Bassett Services NSW Pty Limited v Murdock [2013] NSWCA 386; (2013) 86 NSWLR 13 (at [26]) per Barrett JA (Gleeson and Leeming JJA agreeing); see also Brisbane South (at 550) per Toohey and Gummow JJ; Sea Coatings (Australia) Pty Limited v Pascoe [2008] NSWCA 54 (at [27]) per Handley AJA (Hodgson and Tobias JJA agreeing) ("Sea Coatings"). 52. Factors contributing to the justice of this case included the respondent's concession that the appellant had a prima facie case on liability. It would be otherwise if she had had a weak case, as "the apparent weakness of the plaintiff's case is a factor which militates against an extension of time": Commonwealth of Australia v Shaw [2006] NSWCA 209; 66 NSWLR 325 (at [40], [83]) per Basten JA (Handley and Ipp JJA agreeing), referred to with approval in Sea Coatings (at [51])."
2. What I have discussed thus far deals with the requirement that an applicant who applies for leave to bring proceedings after a limitation period has expired must provide a reasonable explanation for the delay and show that there has not been an absence of diligence on his or her part in making the application. That is a requirement that is set out in [49] of the above judgment, which cites [89] of the judgment of Ipp AJA in Itek Graphix Pty Limited v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207.
3. In the present matter, the defendant conceded that the plaintiff had an arguable case on liability, which can be further refined as being a prima facie case. That is also a relevant consideration, as pointed out by McColl JA in [52] of the judgment I have cited above.
4. The real question in this matter is whether the defendant has suffered prejudice which would make the chances of a fair trial unlikely. Before I turn to that specific aspect, I should comment briefly on the three rationales of limitation periods that were identified by McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, that are set out conveniently by McColl JA in [46] of the judgment which I have cited. The first rationale is, of course, that, as time goes by, relevant evidence is likely to be lost. The authorities make it clear that evidence may be lost, even though the parties were unaware of its existence. There is presumptive prejudice because of the effluxion of a limitation period. That is essentially the matter which I have indicated is the main issue in the current case.
5. `The next rationale is that it is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed. In many cases, such is evident. It is less evident in an ongoing Workers Compensation claim, where the employer is the defendant and the employer has been intimately involved in every aspect of the management of the worker's claim since the injury in question. If a party is unaware of a putative claim and, for example, six years after the event, the claimant gives notice to the unaware defendant, the unaware defendant may need to make financial provisions to accommodate the claim and may urgently need to make inquiries about a large number of things, which would include damages. In an ongoing workers compensation claim, such problems usually do not arise.
6. The third rationale is of the desirability for those in the community to be able to manage their affairs and utilise their resources on the basis that claims can no longer be made against them. Here, as a matter of insurance practice, the defendant, the State of New South Wales, must raise an estimate based on the value of the plaintiff's workers compensation claim and, in many cases, there might be little difference between the ultimate value of the workers compensation claim and the allowance to be made for the recovery of work injury damages, because work injury damages are confined to past and future economic loss and, if a plaintiff recover work injury damages, she loses the right to claim in futuro for hospital and medical expenses and other forms of workers compensation, which becomes, in a sense, an offset to the employer because it loses the corresponding liability.
7. The second and third rationales underpinning limitation periods fall away in a case of this nature, where the claim that is made is for work injury damages against an employer who has been paying workers compensation from the very beginning. Their importance is also lessened by the very nature of the statutory scheme, which mandates that no proceedings can be commenced until the plaintiff crosses the statutory threshold and, here, that only arose on 13 May 2015, more than five and a half years after the injury, that gives rise to the cause of action, occurred.

Prejudice

1. I turn, then, to the question of prejudice. In discussing prejudice, the defendant repeatedly submitted that the real case for the plaintiff was first notified to defendant with the delivery of particulars on 23 August 2016, which was almost seven years after the plaintiff's injury. That submission is repeated in [28] of the defendant's written submissions, which I marked for identification 6, and were only put before me at the very end of Mr Stanton's address. With the utmost respect, I cannot accede to that submission. As I pointed out yesterday, the contemporaneous report made to Senior Constable Peta Hawke was that, for some reason, the light did not function at the time of the plaintiff's fall. I also pointed out that it was common ground that there was a light which was supposed to illuminate the stair onto the verandah, and the verandah of the demountable building at the back of the Nyngan Police Station, and perhaps also designed to illuminate the approach to that demountable building.
2. I also pointed out yesterday that the plaintiff made the defendant aware that there had been prior complaints made by her to others at the Nyngan Police Station who were superior to her when the plaintiff served upon the defendant, on 11 November 2014, the plaintiff's statement of 27 August 2014. The defendant had been aware of the plaintiff's allegation that the light was not working as at 23 September 2009, and became aware on 11 November 2014 that the plaintiff's case was that she had made prior complaints of the light not working adequately, properly or at all, to superiors at the police station prior to that time.
3. In her statement of 15 March 2016 at [28], which I cited yesterday, the plaintiff pointed out that there were "around six to eight police officers" stationed at Nyngan. There may have been more. The evidence before me tells me that at the station were the plaintiff herself, her husband, Inspector Murray, Sergeant Tony Wood, Sergeant Jason Barker, Senior Constable Peta Hawke and Steve Wynn of the Highway Patrol. Annexure V to the affidavit of Mr Daniel Tuxford of 8 August 2017 (exhibit 3-3) is the factual investigation report of 20 February 2017. It sought to identify relevant witnesses.
4. Apparently one of the officers who may have been stationed at Nyngan at the relevant time, had the surname Wheatley. The investigator's report tells me that a Sergeant Andrew Wheatley had not worked at Nyngan and did not know Amy Bright. However the investigator contacted Sergeant David Wheatley who in January 2017 was stationed at Brewarrina, and he agreed to provide a statement. To avoid unnecessarily travelling to Brewarrina, a list of issues that Sergeant David Wheatley was asked to consider was forwarded to him by email on 4 January 2017 and a reminder was sent on 14 January 2017, but on 23 January 2017 it seemed that Sergeant Wheatley was on leave. On 6 February 2017 Sergeant Wheatley replied by email that he would complete his statement within a week, but as at 20 February 2017 he had not done so, and no statement from Sergeant David Wheatley was available at the time that the investigator's report was made. The evidence is silent as to whether one has been received since or what attempts have been made by the defendant's solicitors to obtain his statement.
5. What the plaintiff says is clear. What her husband might say about the light on the demountable building is unknown. Presumably, since he worked at the Nyngan Police Station over the same period of time that the plaintiff worked there, he might be able to give some evidence about the light. A statement has been obtained from Sergeant Tony Wood by the defendant. A statement has been taken from Sergeant Jason Barker by the defendant. The defendant has not obtained a statement from Inspector Murray, but the plaintiff has.
6. No statement had been obtained from Senior Constable Peta Hawke. As at the time the investigator made her inquiries she was on extended leave, and was not expected to return to work until the later months of 2017. However, a statement was obtained from her on 15 August 2017 and is annexure B to Mr Tuxford's second affidavit, that sworn on 16 August 2017 (exhibit 4-4).
7. Senior Constable Hawke was stationed at Nyngan from June 2008 to approximately September 2011. She was the lock-up keeper at Nyngan and performed general duties. She agreed that she is a work colleague of the plaintiff. She was aware that the demountable building had sensor lighting on the verandah and that the path or access way to the demountable building was also illuminated by lighting in the carports at the back of the police station which faced towards the demountable building. She felt that the lighting on the steps of the demountable building was sufficient but she was unable to say whether that lighting was adequate for others. She did not believe that any additional lighting was required. She goes on to say that she never considered that there was any risk of injury to Amy Bright specifically or to anyone as a result of using the stairs to the demountable building at night. She was unaware of any complaints made by the plaintiff or any other police officer about lighting on the stairs to the demountable building. Paragraph 15 of her statement is this: "I recall that in general around 2009, I used to do a general inspection of the station every shift, and would report broken items discovered during such inspections." One can understand that the lock-up keeper, that is the officer living in the house linked to the police station, would carry out such an inspection. She was aware of the plaintiff's having injured her wrist and that the plaintiff told her that she'd fallen down the "back stairs". She did not have any specific recollection of the evening of 23 September 2009 and was also unaware as to whether there were dust storms on that day or around that time. She could not recall whether there was any investigation of the lighting systems at the Nyngan Police Station immediately following upon the plaintiff's accident. The general thrust of her evidence is favourable for the defendant.
8. I shall soon consider the statements obtained from Sergeant Barker and Sergeant Wood. However, no attempt appears to have been made to obtain a statement from Steve Wynn of the Highway Patrol. The evidence does not even tell me Mr Wynn's rank. The number of witnesses actually identified who worked at the Nyngan Police Station at the relevant time is, on my count, eight, but that eight includes two senior constables, the plaintiff and Peta Hawke and probably there was a third senior constable, the plaintiff's husband, Daniel. It also includes two sergeants and Inspector Murray and it is quite possible that David Wheatley, now a sergeant, was then a senior constable as well. This appears to be a "top heavy" establishment for a police station and it may be that there were a number of other police working at Nyngan who were merely constables or probationary constables.
9. Sergeant Barker, who at the time he made his statement on 5 December 2016 was stationed at Parkes, made complaints about the verandah and the stairs being slippery when wet but made no comment at all about the lighting being in any way adequate. His statement does not assist.
10. Sergeant Tony Wood who made a statement on 7 December 2016. He held the substantive role of sergeant of police at Nyngan since July 2008. At the time he made his statement, he was acting in the role of inspector of police at Nyngan. I assume, therefore, he was at that time the officer in charge. Part of his statement is this: "13. I cannot recall being on shift on 23 September 2009 when Constable Bright sustained an injury to her left wrist when she fell on the steps at the station. As I recall, she was on shift with Senior Constable Peta Hawke. I heard about the incident some days later. As I recall, I was told that Constable Bright went to the office to check on the maintenance of the…ERISP..equipment. There had been a massive dust storm and the station was covered in dust. Whilst it does seem unusual that she would undertake that task on a night shift and in those conditions, Constable Bright consistently applied herself assiduously to this kind of administrative procedure. 14. I believe I may have undertaken the investigation and one of the treatment solutions was a request for improved lighting. 15. I had never received any complaints about the steps or the lighting of that area prior to Constable Bright's accident. There had been no prior accident, or near-miss reported to me about the steps or the lighting. There had been sensor lights covering the area outside the far office, occupied by the Rural Crime Investigator. Following Constable Bright's injury, a second set of sensor lights was installed. 16. I believe the original lighting was adequate. I had accessed that area at night on a regular basis, as had other staff, without any incident or concern being reported. 17. I have received an email that was sent to me by the local area manager, Nancy Simpson on 18 December 2009, inquiring as to the progress of the installation of the lighting. I responded that the additional sensors had been installed. 18. That area was accessed regularly by myself and others, particularly with offenders in custody as the interview room is in that demountable building. Police would approach the building and generally wait until the sensor lights came on before proceeding. 19. In accordance with requirements, we undertake monthly work, health and safety inspections. I generally complete these myself and there were no issues raised about the walkway and lighting between the buildings prior to Constable Bright's accident. 20. Had any concern been brought to my attention, I would have personally reviewed the situation and reported it to the Local Area Manager. 21. To my know there were no knowledge there were no risk assessments undertaken with respect to those steps prior to 23 September 2009, nor was any need for a risk assessment identified."
11. The statement goes on to comment about a dust storm between 22 and 24 September 2009, which the sergeant described as "massive" and how it might be relevant. If there were a massive dust storm that could be corroborated or disproved by the records of the Australian Bureau of Meteorology and, for example, any contemporaneous press reports. The meteorological records are not destroyed and libraries of the nation maintain issues of every newspaper published in this country, at least since federation over 100 years ago. Sergeant Woods' evidence assists the defendant. It does not assist the plaintiff.
12. The defendant also obtained a statement from Ms Tegan Gardiner. The evidence does not tell me Ms Gardiner's rank, but as she was the Local Area Manager of the Canobolas command as at the time of her statement on 5 December 2016, I suspect that she was at least an inspector of police. During 2009 she was the executive officer of the Darling River Local Area Command, which was based at Bourke and encompassed Nyngan Police Station. From January 2010 until October 2013 she was acting as the Local Area Manager at Darling River Local Area Command before she won that position substantively. She had obviously transferred from being the A Manager at Darling River to the A Manager at Canobolas at the time of her statement. Her statement contains this matter: "17. The Command encouraged all officers across the LAC to report any Work, Health and Safety issues immediately they were identified. Officers notified the LAC by email or telephone and rarely was there an issue identified on a monthly inspection about which I had not already been informed. The calls or emails were logged with United Group, the service provider contracted to attend to all property maintenance issues across the LAC. 18 I do not recall being notified of any concern regarding the lighting outside the demountable at Nyngan prior to Constable Bright's injury. 19 I do not agree that Constable Bright was required to work in a manner that was inherently unsafe. As I have stated, I do not recall any issue being raised concerning the lighting near the demountable at Nyngan." ... "21 To my knowledge at the time the lighting was functioning and appropriate to the operations of that section of the property, given that the occupants of the demountable worked primarily in daylight hours and no report of inadequacy had been received."
13. The records that have been recovered are scanty, to say the least. The defendant provided to Mr Tuxford on 19 February 2016 or perhaps a short time earlier, the OHS workplace inspection reports for nearly every month between June 2008 and December 2010. Mr Tuxford copied, in the evidence provided to me in his affidavit, the OHS workplace inspection reports of 26 August 2009 and 28 September 2009, neither of which makes any reference to any problem with lighting. Those reports are obviously the one preceding the plaintiff's injury and the one succeeding the plaintiff's injury. All of them were provided to the plaintiff's solicitor and the plaintiff's solicitor has not put any of them before me. Therefore, I infer none identifies at any time any problem perceived with lighting around the demountable building.
14. The defendant's solicitor did obtain copies of two "old" emails. He forwarded those to the plaintiff's solicitors at 9.01 on 22 August 2016. The first email bears date 18 December 2009 at 12.20 pm. It was sent by Nancy Simpson, the Local Area Manager of the Darling River Local Area Command at Bourke to Sergeant Tony Wood. It was copied to Ms Tegan Gardiner. The subject was "Amy Bright". The document says this: "Please advise ASAP if the lighting has been fixed in the area where Amy fell/tripped." There is then an oblong box across the page which is divided into four parts. The first part contains a reference number, "2497379". The second box contains this matter: "Rear building (detective's office/interview room) has inadequate lighting which resulted in the trip/fall injury to a police officer. Current sensor light only works if approached from obscure angle. Please arrange for additional lighting and/or sensor to be installed." The third part of the box contains the word "Electrical" and the fourth part of the box contains the matter "Randall Group Pty Ltd". Below the low, oblong box is this matter: "UGS records indicate that it was completed on 9/10/09?" That is the substance of the email. Sergeant Wood replied to Ms Simpson at 5.03pm on the same day: "It has been fixed."
15. Annexure A to the affidavit of Mr Tuxford sworn on 16 August 2017 (exhibit 4-4) is a contract that contains 364 pages. It is a contract drawn by Messrs Clayton Utz and is between the Honourable Carl Scully, Minister for Police, for and on behalf of the Crown in right of the State of New South Wales and United Group Services Pty Ltd. That party, described in the contract as the "Contractor", is described in the evidence before me as "UGS", "USG" and sometimes as "UGL". The term of the contract was from 31 March 2006 to 30 June 2011. There was provision for the contract to be renewed, but it is irrelevant to know whether it were renewed or not. Essentially, the contract provides for the contractor to provide management services to the State of New South Wales for the "police property portfolio".
16. The inferences which I draw are that the reference number is a UGS reference number, that the problem identified in the second part of the box was summarised as being an electrical problem, and UGS deputed Randall Group Pty Ltd to deal with the identified problem.
17. I am unaware of the significance of the question mark in the final line of the email. However, if one ignore it, it seems to indicate that the problem had been remedied by 9 October 2009, according to the records of UGS. In his affidavit of 8 August 2017, exhibit 3-3, Mr Tuxford identified the Randall Group Pty Ltd as electrical contractors. An email sent from the Randall Group on 12 July 2017 shows that company's logo, which has underneath its name, the words "construction and management", and then gives a postal address at Inverell as well as other means of contacting the Randall Group Pty Ltd. The email of Sergeant Wood of 5.03pm on 18 December 2009 confirms, in my view, that the work, which the UGS records indicated was completed on 9 October 2009, had been completed by that time.

Consideration

1. During the hearing before me, no emphasis was placed on the text contained in the second part of the oblong box. The text includes the words "which resulted in trip-fall injury to a police officer". There is no evidence that any police officer tripped and/or fell near the demountable building prior to the plaintiff's trip or fall. The record, which appears to be a record of UGS, appears to have been generated after the current plaintiff's fall and appears to me to have been generated because of that fall. Sergeant Wood's statement indicates that he may have made the request, after investigating the plaintiff's fall. This was not a record of some request for maintenance or repair generated prior to plaintiff's injury, but immediately after it, I infer. The fault was remedied within 16 days of the plaintiff's injury, that is, just over a fortnight later. What was done has been outlined by Sergeant Wood in his statement, which I have already quoted. A second set of sensor lights was installed.
2. During the argument before me, it was suggested that this UGS record may have been made before the plaintiff's fall and, if so, that the defendant might have a possible cross-claim against UGS and/or the Randall Group Pty Ltd for failing to attend to the request for maintenance or repair promptly. However the text in the record indicates to me that it was only generated after the plaintiff's fall and could not give rise to a possible cross-claim against UGS or Randall Group Pty Ltd. Furthermore the evidence available to the defendant from both Sergeant Wood, the OHS workplace inspection monthly checklists, and from Ms Tegan Gardiner, indicate to me that no request for maintenance or repair or the like had been logged prior to the plaintiff's fall.
3. The prospect of a cross-claim is, in my view, on the evidence before me, fanciful. The evidence points to a complaint having been made by the plaintiff to Inspector Murray, but does not point in the direction of Inspector Murray's having responded to earlier complaints made by the plaintiff. Since the plaintiff has obtained a statement from Inspector Murray, and, as I understand it, that he will be called in the plaintiff's case, the plaintiff's case appears to me to be based ultimately on the vicarious liability of the State of New South Wales for the failure of Inspector Murray to log the plaintiff's complaint and set about remediation of the problem she perceived prior to her fall.
4. Furthermore, the record of UGS set out in Ms Simpson's email to Sergeant Wood on 18 December 2009, clearly indicates that the current sensor light only worked in limited circumstances; that is only if it were approached from an obscure angle. Why that might be the case is, on the evidence before me, unknown. No‑one has sought to establish when the demountable building was erected, who installed that sensor light, how it was angled or if it had been interfered with in any way by anyone or anything at any time since the demountable building had been erected. I suppose it is possible that the sensor could have been moved or interfered with by a massive dust storm, although it appears to me as a matter of common sense that it would not be the dust in the storm, but rather the wind that was more likely to move the sensor if the sensor could be moved. However that would require a party to adduce evidence, and presumably the party who would need to adduce that evidence would be the defendant.
5. In GIO General Limited v Love [2009] NSWCA 269, Handley AJA, with whom Young JA agreed, said this: "39. The Judge appears to have assessed GIO's prejudice from loss of Firefox's cause of action in contract against ACI by deciding, on the existing evidence, that it had no such cause of action. In doing so he applied the wrong test and failed to take into account the ability, at an earlier time, to obtain further evidence about the contractual position from Mr Rose, the records of Firefox, and by discovery or subpoena from ACI. 40. As this Court held in Creevey v Barrois [2005] NSWCA 264 at [56] per Basten JA, when considering the loss of rights against a third party the question is whether the claim has been shown to be viable and realistic, and not merely fanciful or theoretical. The Judge did not ask himself the right question." In Gallagher Bassett Services NSW Pty Ltd v Murdock [2013] NSWCA 386, Barrett JA, with whom Gleeson and Leeming JJA agreed, said at [28]: "It is therefore necessary to examine what disadvantage, if any, would accrue to the Murdock Employer if Mr Murdock is allowed to bring an action for damages against the Murdock Employer. The question is whether there will be 'significant' prejudice. Two important issues arise: first, whether rights against third parties will be lost to the Murdock Employer if Mr Murdock proceeds against the Murdock Employer for damages; and second, whether any such rights are 'viable and realistic, and not merely fanciful or theoretical': Creevey v Barrois [2005] NSWCA 264 at [56] per Basten JA; GIO General Limited v Love [2009] NSWCA 269 at [40]." I am acutely aware that what Handley AJA said in the first paragraph I have quoted, might seem to indicate that I am making a judgment based on a wrong principle. However, it is clear from the evidence before me that the record indicating a report for maintenance at the demountable building of the lighting, could only have been generated after the plaintiff's fall and, therefore, the prospect of a cross-claim against UGS and/or the Randall Group Pty Ltd is not only fanciful but completely unarguable.
6. In [36] of the defendant's written submissions (MFI 6), Mr Stanton said this: "The defendant's evidence establishes the following loss of records: (a) Loss of any records relating to the logged complaints; (b) Loss of records relating to work undertaken by United Services Group; (c) Loss of records relating to work undertaken by the Randall Group Pty Ltd (mentioned in the email dated 18 December 2009); (d) Loss of records relating to changes in the lighting." There is only evidence of one logged complaint rather than logged complaints. It appears to me that the complaint logged is that set out in Ms Simpson's email to Sergeant Wood of 18 December 2009, which I have quoted above. Clearly that would have been something typed into a computer by someone, whether that was by somebody from USG or from a police officer at Nyngan or a police officer or administrative assistant at Bourke is unclear, but the document is admissible as a business record. As I have pointed out, the statement of Sergeant Wood indicates that he may have been the author. Presumably, it adequately reflects the substance of the complaint that as logged. What work may have been done by United Group Services is unclear, but the inference to be drawn is that UGS subcontracted the work to the Randall Group Pty Ltd. Mr Stanton was kind enough to provide me with a synopsis of the contract between Mr Scully and UGS and on page 49, is set out a requirement that UGS be responsible to the State for the contractors retained by it.
7. As to the records relating to the work undertaken by Randall Group Pty Ltd, they clearly are missing and I shall refer to those soon, but it is clear from the statement of Sergeant Wood that a further sensor light was installed by them. As to the final matter raised by Mr Stanton, again the change appears to be the installation of a further sensor light, as stated by Sergeant Wood.
8. The written submissions of Mr Stanton continue thus: "37. Those records are crucial to meet the claim advanced by the plaintiff. For example, was there a defective light prior to the plaintiff's accident? What was the cause of the defective lighting (if it was defective)? What changes, if any, were made after the plaintiff's accident? When did any defect in the lighting (if it existed) arise? The defendant must act reasonably and if a defect arose on the day of the plaintiff's accident, then arguably, there had been no negligence by the defendant in the circumstances. In this regard, the answer to particulars makes it clear that the risk assessment should have been undertaken immediately following becoming aware of the faulty lighting. This raises a question as to when the defendant became aware of such matters." The simple answer to the first question posed by Mr Stanton in that submission is that the plaintiff's case is that the light had not been working adequately or at all at the time of her accident and for at least a month, if not longer, prior to that time. The plaintiff is not an electrician. The plaintiff is not an expert in optics. The plaintiff can merely say whether the light was working or not working. She is not qualified to state whether it was the sensor or the light bulb or the wiring to the light bulb or some faulty master switch that was causing the problem. All she could do was report the problem. The plaintiff's case is that she did report that problem to Inspector Murray, and as I understand it, Inspector Murray is to be called in her case to corroborate that fact.
9. The answer to the second question is provided in the emails of 19 December 2009 which I have quoted. The sensor was positioned in such a fashion that the light only turned on if it was approached "from an obscure angle". The problem was in the positioning of the sensor rather than a problem with the light itself, meaning the light globe or the wiring to the globe or the electrical supply. The changes that were made after the plaintiff's accident are detailed by Sergeant Wood in his statement. A further sensor light was installed.
10. The best that one can ascertain as to when any defect arose was from the evidence to be given by the plaintiff and Inspector Murray. The plaintiff says that the lighting was defective for at least a month prior to her fall. She had not worked a night shift for three weeks prior to 23 September 2009 but that would indicate that she had noticed the problem at least three weeks prior to her fall. It would be interesting to know what evidence might be given from now retired Inspector Murray as to when complaints were made to him by the plaintiff. On the evidence available thus far, it would appear that the real problem was that Inspector Murray may not have logged the problem or caused anybody to make a record of the problem to report it and request the problem be fixed.
11. The defendant is her Majesty the Queen in right of the State of New South Wales. Her Majesty would never have physically been told about a defective light at the Nyngan Police Station. The State must act through its servants or agents. The appropriate servant or agent of the defendant that the plaintiff should report any defect to was her superior, Inspector Murray. The knowledge of Inspector Murray would be the knowledge of the defendant. The question will become whether Inspector Murray did his job properly or not.
12. Mr Stanton's written submissions and his oral submissions then went on to discuss the significance of the "massive dust storm" which is referred to by Sergeant Wood in his statement and again if that interfered with the sensor light. It is hard to understand how the plaintiff could have been aware of the problem three weeks before the massive dust storm. That appears, with great respect to the defendant, to be yet another red herring, provided of course, that the plaintiff is telling the truth, but that is a matter for the trial judge to ascertain.
13. Commencing at [42] the defendant's written submissions speak of the loss of the plaintiff's right to a s 151Z recovery but include not only that right but a right to bring a cross-claim for contribution or indemnity under the Law Reform (Miscellaneous Provisions) Act 1946. However, it is only postulated that the cross-claim be against UGS and/or Randall Group Pty Ltd, but for reasons I have already given, such considerations are irrelevant. It is true that records are no longer available from Randall Group Pty Ltd or from UGS and that such records that are available, as have been discovered by the defendant, are exiguous, but that exiguity may not be because records have been destroyed but because the records kept by the NSW Police Force are so voluminous and priority is given to keeping records of crime detection rather than records of an administrative nature, such as the replacement of blown light bulbs or blown fluorescent tubes or similar housekeeping matters on police property.
14. Before going onto other matters, I should merely point out another aspect about the cross-claims discussed by the defendant in submissions. Such cross-claims would not be statute barred. In Gallagher Bassett Services NSW Pty Limited v Murdock (supra) Barrett JA pointed this out: "72. An order made under s 151D of the [1987 Act] likewise causes the limitation period applying to the generality of actions not to apply to the particular action. But such an order, … does not cause some extended limitation period to apply to the action in question. One finite period is not substituted for another. In a s 151D(2) case, the time bar is simply abolished. It follows that, with the period of general application displaced and no substituted period applicable, there is no limitation period 'fixed by or under' any Act 'for' the particular action. 73. I am therefore of the opinion that the grant of leave to Mr Murdock under s 151D(2) of [the 1987 Act] in respect of proceedings against the Murdock Employer, not only freed Mr Murdock from the time bar that would otherwise have precluded the bringing of those proceedings by him, but also freed the Murdock Employer from the time bar that s 26(1)(b) of the Limitation Act would otherwise have placed in the way of the bringing of any cross-claim by it against any Non-Employer Tortfeasor under s 5(1)(c) of the [Law Reform (Miscellaneous Provisions) Act 1946]." Therefore, the defendant theoretically would only have any cross-claim it had become statute barred two years after the plaintiff recovered damages from the defendant. There is no limitation difficulty for the defendant if it were able to bring a cross-claim. LUNCHEON ADJOURNMENT
15. I turn now to the complaint made by the defendant about missing documents. The first thing to note is that the emails of 18 December 2009 became available to the defendant's solicitor by at least 22 June 2016, when he sent copies of them to the plaintiff's solicitor. They would have drawn his attention to UGS and to the Randall Group Pty Limited. Mr Tuxford could have made inquiries at that time as to the whereabouts of any documents held by either of those entities at that time. However, he made no attempt make contact with the Randall Group until 12 July 2017, over a year later.
16. The immediate response of the Randall Group Ltd to Mr Tuxford's communication of 12 July 2006 was an email sent on the same day, saying, "Sorry, but, due to the timeframe, we no longer have these files." A follow-up call was made to the Randall Group Pty Ltd on 1 August 2017. The defendant's solicitor was advised that the Randall Group Limited only held records "for five years". The five years could have been from the actual day that the records were generated. Since the Randall Group completed the work for UGS on 9 October 2009, any documents generated by the Randall Group Ltd referable to the sensor lights at the demountable building at Nyngan Police Station would have reached their five-year life on 9 October 2014, or shortly thereafter. It may be that, for example, an invoice or the like for the work done by the Randall Group Pty Ltd on 9 October 2014 was billed on the following day or within a week of the work being done. If records were kept electronically, they might be deleted by the computer program itself five years after they were generated. However, they could have been deleted at the end of each calendar year, in which case they have would been deleted on 31 December 2014. However, they might not have been deleted until the end of the financial year in which they were generated, in which case they would not have been deleted until 30 June 2015. It is to be borne in mind that the plaintiff first gave notice of her work injury damages claim on 24 March 2015.
17. The defendant's solicitor only attempted to gain documents from UGS by letter of 25 July 2017. On 3 August 2017, Mr Tuxford made a telephone attendance upon Messrs Cushman Wakefield in Sydney, whose clerk advised him that she believed that documentation was kept for a minimum of five years, but a maximum of seven years, before it was destroyed. She gave Mr Tuxford the contact details for the Legal General Manager of her firm in Melbourne. On the same day Mr Tuxford made a telephone attendance upon the Legal General Manager of Cushman Wakefield in Melbourne and he reiterated that the company only kept records for a maximum of seven years, and therefore that they did not have any records remaining for the work done at the Nyngan Police Station in September or October 2009. Of course if the records are only kept for five years, the same time considerations apply as apply for the records of the Randall Group Pty Ltd. If, however, the records were kept for seven years, the seventh anniversary of the records expired on or shortly after 9 October 2016; the seventh anniversary of the calendar year in which the records were generated, occurred on 31 December 2016, and the seventh anniversary of the financial year in which the records were generated, expired on 30 June 2017.
18. If Mr Tuxford had made an inquiry on 22 June 2016 and UGS had kept records for seven years, then Mr Tuxford may well have obtained relevant records from UGS. In other words, the failure to obtain the records could be visited upon the default of the defendant itself if these records were required for a putative cross‑claim which, in my view, they were not. However, what this does indicate to me is that the defendant was careless of its own rights.
19. The workers compensation legislation, by which I mean the Workers Compensation Act 1926 and the 1987 Act, has always provided for the recovery by an employer of compensation which it pays to an injured worker, whose injury was caused by the tort of another, from the tortfeasor. The current provision is s 151Z of the 1987 Act. The chapeau to s 151Z(1) is this: "If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect:" Paragraph (d) is in these terms: "if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages),". If there were a tortfeasor, the employer, the defendant, has a statutory right to recover compensation paid by the employer to the plaintiff. According to annexure GG to Mr Tuxford's affidavit of 28 August 2017 (exhibit 3‑3), the first payment of weekly compensation to the plaintiff was made on 19 October 2015 and therefore the statutory cause of action accrued on that date, and the defendant could have recovered compensation from the tortfeasor by action commenced on or before 19 October 2015. However, the scheme of s 151Z is that if, for example, the defendant made a payment in 2012, to or on behalf of the plaintiff, then the defendant could recover that payment by action commenced six years after that payment; that is by action commenced in 2018. However, only one action can be brought and the maximum that can be recovered is a maximum that might be recovered if the worker herself or himself brought the action against the tortfeasor. In other words, if the defendant had a right to be indemnified by a tortfeasor, the defendant commenced to lose its rights on 19 October 2015. However, there is no suggestion that the defendant has at any stage commenced an action to recover damages from an alleged tortfeasor. As was submitted by the plaintiff in reply, either the defendant considered a recovery under s 151Z of the 1987 Act and decided against it, or it did not consider the matter at all. In the latter case, the defendant has not had due regard to its own interests.
20. The relevant legal principle is not that there must be an ideal trial but whether there still can be a fair trial. On my analysis of the evidence before me, I am persuaded that the defendant can still obtain a fair trial. The matter is to be looked at from the defendant's point of view, not the plaintiff's point of view. At least the nature of the defect has now been explained; the time when a complaint was lodged with UGS is known, that is after the plaintiff's injury; and it was remedied by the Randall Group Pty Ltd and the remedy was the installation of a further sensor light. One can understand why the plaintiff's injury occurred, if she is to be believed. Equally the defendant can only be liable if she had previously drawn this defect to the attention of somebody in authority, and on the plaintiff's case, that is Inspector Scott Murray who is to be called, according to what I have been told from the Bar table, in the plaintiff's case.
21. There is, on my analysis of the evidence, no viable or arguable potential cross-claim and, in those circumstances, the defendant has not established any relevant prejudice, to establish that there is no prospect of a fair trial being held. Accordingly, consonant with the law expounded by McColl JA in Howley v Principal Healthcare Finance Pty Ltd (supra), the plaintiff is entitled to the relief which she seeks.

Costs

1. The remaining question concerns costs. I have again to intone the mantra that I have been reciting for 23 years, that nothing excites zeal, the ardour and the passion of the legal profession more than an argument about costs. Pages 18 to 24 of Mr Stanton's written submissions provide the argument the defendant makes about costs. The defendant seeks an order that each party should pay her or its own costs for the present application. The plaintiff seeks an order that the costs of this application be the plaintiff's costs in the cause or alternatively costs in the cause.
2. Relevant principles have been canvassed by my colleague Taylor SC DCJ in Afarin v Excelior Pty Ltd [2013] NSWDC 65 commencing at [26]. Commencing at [38], his Honour said this: "…it seems to me that the rule in Holt v Wynter [(2000) 49 NSWLR 128 at [121]] has generally been endorsed rather than rejected. It remains a governing principle. If applicable, and absent special circumstances, it should govern the result. 39. In this case, I do not find that the defendant's conduct was unreasonable. Unreasonable conduct must mean more than mere unsuccessful opposition to the application. No submission of unreasonableness was raised by the plaintiff. 40. On the other hand, Mrs Afarin did not intentionally allow the limitation period to lapse. At the time, she had no entitlement to claim. She is, as Basten JA stated in Rundle [Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347], not someone that allowed herself to get out of time. Accordingly, the ordinary rule in Holt v Wynter is not, in terms applicable, and does not require that she pay the costs. 41. Basten JA in Rundle at [151] considered that an application for an extension of time is not an event in its own right, raising the application of the general rule in UCPR 42.1. In the circumstances of this application, I agree. In Josef & Sons Contracting Pty Limited v Mabbett [2007] NSWCA 237 at [6], the Court of Appeal unanimously rejected a challenge to an order by the trial judge that, although the defendant's opposition was not unreasonable, the costs were to be the costs in the cause. I think that is the appropriate order in this case."
3. Since then there are two relevant decisions to which my attention has been drawn on the question of costs. The first is the decision of the Court of Appeal in Howley v Principal Healthcare Finance Pty Ltd (supra). In that case, the Court of Appeal ordered that the costs of the extension application in the District Court were to be appellant's costs in the proceedings in this Court. However, no argument was addressed in the judgment of the Court of Appeal as to why that order was made. It may have been one that the parties had agreed to during the course of the argument in the Court of Appeal. My attention has been also drawn to the decision from Harrison J in Barrett v ITW Australia Pty Ltd [2016] NSWSC 1325 in which his Honour commenced to discuss the question of costs at [16]. In that case, his Honour ordered that costs of the application were to be the plaintiff's costs in the cause. Commencing at [19], his Honour said this: "[19] The only real costs issue seems to me to be the extent to which, if at all, Mr Barrett has incurred costs on the present application that would not have been generated if the defence did not contain paragraph 12 or its equivalent. The statutory requirement for Mr Barrett to secure a grant of leave is not the product of ITW's response to the claim. Success in the present application is in that sense not dissimilar in importance for Mr Barrett to success on the ultimate issues of liability in the proceedings. The present application is therefore but one step in the process between the commencement of the proceedings and the recovery of damages. ITW did not seek to obstruct that process. [20] In those circumstances I consider that Mr Barrett's entitlement to the costs of the application for leave should be rise and fall with his entitlement to costs in the proceedings as a whole. ITW did not argue that it would not be liable for the costs of this application if it eventually became liable for the costs of the proceedings. It did argue that it should not be liable for those costs standing alone. Mr Barrett should not in my opinion be found to have an independent entitlement to recover the costs of this application unless he also becomes entitled to an order for the costs of the proceedings generally. [21] It was contended by Mr Barrett that costs should follow the event and that I should not, as it were, otherwise order. In my opinion the "event" in that context is not the outcome of the present motion. The event for presently relevant purposes in my view should be the result of these proceedings on a final basis. Accordingly, the costs of the present application should follow that event."
4. I accept that the plaintiff was required to seek this Court's leave to extend the limitation period. If she be successful in her case, then she is entitled to recover the costs of this application. If she be unsuccessful in her case, then this application was an otiose exercise. In the circumstances, it appears to me I should make the order that was made by Taylor SC DCJ in Afarin's case and order that the costs of this application be costs in the cause.
5. Another argument concerning costs was the involvement of Mr Doherty SC for the plaintiff, the applicant on the notice of motion. Mr Stanton pointed out that fees for senior counsel are not recoverable under the Workers Compensation Regulation 2016 unless the Court makes an order to that effect. Mr Stanton argued that it was not necessary for senior counsel to be briefed in the current proceedings. I am unable to accede to that submission either.
6. The last civil sittings at Lismore commenced before me on Monday 14 August 2017. On that occasion, the plaintiff's solicitor, Mr Bourke, appeared for the plaintiff and Mr Stanton of counsel appeared for the defendant instructed by Mr Tuxford. There were a number of heated exchanges between the bench and the Bar table, in particular between Mr Bourke and myself. Mr Bourke maintained that it was the "usual practice", in particular at Lismore, for an order to be made that the hearing of the application for leave to extend the limitation period be conducted simultaneously with the hearing of the action itself. That was not my experience over the period that I have been a judge of this Court, that is since 1 January 2004, either in Sydney, in Lismore or in any other venue.
7. It then became clear that counsel then retained for the plaintiff was not available until the following Friday, which was not convenient for me, or the following Monday, which was a date on which Mr Stanton was not available for the defendant. I then ordered that the matter be listed for hearing before me on Tuesday 22 August 2017, during the second week of the two-week sittings. It was on that occasion that Mr Doherty SC appeared with Mr Somerville for the plaintiff. Mr Somerville had somehow freed himself of whatever commitment it was that caused Mr Bourke to tell me on Monday 14 August 2017 that he was not available on Tuesday 22 August 2017.
8. In any event, there were also heated exchanges between Mr Bourke and Mr Stanton in which certain unnecessary suggestions were made of impropriety as between the solicitors. In those circumstances, I can accept that a prudent solicitor such as Mr Bourke might retain senior counsel who, because of experience, might settle the waters, so to speak.
9. In any event, the case is hardly a straight forward one, as is evident by the fact that the matter took all of 22 August 2017 at Lismore and all of last Wednesday, and last Thursday until the morning tea adjournment. It was preceded by my spending the best part of a whole working day reading the documentary evidence which is contained in three lever arch binders, the transcript occupying a further lever arch binder, the case law contained in a ring-binder and my handwritten notes occupying another ring binder, as well as there being a large number of lose documents, in particular the written submissions of the parties, being documents marked for identification 3, 4, 5 and 6.
10. In my view, this was an appropriate case in which senior counsel ought to have been retained. I therefore shall certify for senior counsel retained by the defendant.
11. I make the following orders: 1. I grant leave to the plaintiff pursuant to s 151D(2) of the Workers Compensation Act 1987 to commence these proceedings on 11 May 2017. 2. I order that the costs of the notice of motion filed on 28 June 2017, the costs of the application under s 151D(2) of the Workers Compensation Act 1987, be costs in the cause. 3. In the event that the plaintiff recovers the costs of the notice of motion of 28 June 2017, I certify for senior counsel for the plaintiff/applicant. 4. I direct that this matter be listed for mention before the Court at Lismore on Monday 6 November 2017 with a view to its being listed for hearing before the Court at Lismore in 2018. 5. Exhibits to be retained.

Amendments 20 September 2017 - Corrected counsel on cover page. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 September 2017