Case v Colchester GR P/L

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

10296/2001 - MARYANNE CASE v COLCHESTER GR PTY LTD

JUDGMENT (Extension of limitation period - s 151D WCA)

1 MASTER: By summons filed 2 February 2001 the plaintiff seeks an order extending time within which to commence proceedings pursuant to s 151D of the Workers Compensation Act 1987 (the Act). The plaintiff relied on her affidavit sworn 10 January 2001 and the affidavit of her solicitor Elyse White sworn 11 January 2001. The defendant relied on the affidavit of Michele Franco sworn 30 March 2001. 2 At the outset it is appropriate that I record that I observed the plaintiff very carefully when she gave evidence and was cross examined. I found it very difficult to understand her evidence as it was like shifting sand. I shall refer to it in more detail later in this judgment. The defendant submitted that the plaintiff gave untruthful evidence and lacked credibility. The conundrum is whether the plaintiff was not being frank with the court or alternatively whether her recall was unclear due to the level of drugs she has been taking and still is taking to alleviate her pain. Currently she administers morphine through a pump in her stomach. Additionally she takes other painkillers. A recent medical report (Dr Gerald Glancey dated 15 May 2001) expressed the view that since the end of last year the plaintiff's level of functioning has been dramatically effected because she has been preoccupied with the breakdown of her marriage and has a sense of loss together with a related depressive disturbance. In particular the plaintiff's concentration and memory have been impaired. 3 The plaintiff's version of events is as follows.

(1) The plaintiff was born 2 September 1953 and is presently 47 years of age.

(2) On 27 January 1997 the plaintiff commenced employment with the defendant at St Helens Park Service Station at St Helens Park.

(3) On 15 November 1997, during the course of her employment, the plaintiff was out the back of the service station in the storeroom. There were two stacks of cartons. Each carton contained six coke bottles. She placed two cartons in the back freezer. As she bent over to pick up the third and last box in one stack the other stack collapsed on her. As a result of this the plaintiff sustained disc bulges at C4/5 and C5/6 and a disc protrusion at C6/7 with early compression and displacement of the cervical spinal cord. The plaintiff suffers, as a result of these injuries, a major mental illness with depression and chronic pain syndrome. There is medical evidence to support this claim.

(4) On 2 December 1997 the plaintiff completed a report of injury form together with an application for workers compensation. On 12 December 1997 these documents were received by the defendant's insurer Zurich Australian Workers Compensation Limited. Since this time the plaintiff has been in receipt of compensation payments. For a while the plaintiff attempted to work from home monitoring security videos but she could not continue with this work.

(5) In December 1997 the plaintiff instructed Firths Solicitors in relation to the claim for compensation. She obtained the name "Firths" from advice given by customers and a taxi driver prior to the accident. She never met Ms Hinge the solicitor handling her matter at Firths. The plaintiff in cross examination stated that it was December 1998 when she telephoned Firths and not December 1997 as deposed by her in her affidavit. It was the plaintiff's clear recollection that the total dealings she had with Firths comprised of the receipt of three letters, one attendance at the solicitor's offices where she saw Mr Firth and some telephone conversations.

(6) According to the plaintiff "just out of the blue" she telephoned Ms Hinge to ask her about common law. A friend of a friend's husband had told her at a birthday party that her employer had been negligent. According to the plaintiff, she telephoned Ms Hinge and relevantly said "This would be about negligence wouldn't it?" Ms Hinge replied "What do you want common law or workers compensation?" The plaintiff replied "I thought they were the same thing." Ms Hinge replied "No". The plaintiff relied "Oh" The plaintiff then terminated the conversation.

(7) In September 2000 as a response to the previous negligence conversation, Jan Hinge telephoned the plaintiff to inform her that she would make an appointment with Stephen Firth so that he could explain common law to her. The plaintiff and her husband attended the conference. During the course of that conference, according to the plaintiff, she became extremely upset and agitated. She could not recall Mr Firth advising her in relation to a common law claim. Nor did she understand the concept of an election to pursue a common law claim as opposed to a workers compensation claim. She said that Mr Firth was rude and slammed his fist on the table. According to the plaintiff, Mr Firth did not explain her rights in a logical and sequential manner but chopped and changed topics so she could understand. However she does recall Mr Firth telling her that a claim would take five to ten years to be heard and that if she lost she may be liable for both parties legal costs. According to the plaintiff, Mr Firth told her that she had given him three versions of the accidents. The plaintiff says she only partially gave him her version of events twice but each time she was cut off before she could finish. Of course, I do not make any findings concerning the former solicitor's conduct because he has not had the opportunity to give his version of events. His version is not required in this application. The alleged advice given of a delay of between five to ten years seems particularly odd. In evidence the plaintiff said that when she left that conference she had already made up her mind that she would not return. On her departure she told Mr Firth "I don't understand what you are talking about and I'm not coming back again". However at Paragraph (10) of her affidavit the plaintiff deposed that it was when she returned home and spoke to her husband and friends that she decided she did not want to instruct Firths to act on her behalf. I am prepared to accepted that this is a minor discrepancy between the plaintiff's oral and affidavit evidence.

(8) A few days later the plaintiff consulted her current firm of solicitors. It is at this point that a more significant divergence between the plaintiff's version of events deposed to in her affidavit and her evidence takes place. On 14 September 2000 the plaintiff consulted her present solicitor Ms Elyse White of Marsdens who advised her of her rights to commence common law proceedings. The plaintiff deposed in her affidavit that Ms White advised her about her common law rights, as well as her rights under workers compensation. At that conference Ms White also advised the plaintiff that she must bring a claim within three years of the date of her accident which occurred on 15 November 1997. Thus the plaintiff knew that she had to commence proceedings no later than 15 November 2000. Nevertheless the plaintiff instructed her solicitor, that although she was having difficulty in understanding the concepts of an election, she did not wish to pursue a common law claim.

(9) On 31 October 2000 there was a further conference between Ms White and the plaintiff at the plaintiff's home. The plaintiff deposed that she was still extremely nervous and upset and found it hard to understand about common law and was not in a position to make that decision at that time. She instructed her solicitor not to commence common law proceedings. She intended to continue proceedings with her workers compensation rights. Ms White corroborated that during the course of that meeting the plaintiff was extremely agitated and upset and it became obvious to her that the plaintiff was having difficulty understanding the advice that she was giving her. However when the plaintiff gave evidence in court she revealed an entirely different reason for electing not to commence common law proceedings in time. The plaintiff freely admitted that she did not have any difficulty understanding the explanation of common law rights the first time it was given to her by Ms White (the explanation given on 14 September 2000, prior to the expiration of the limitation period). The plaintiff was able to tell the court a number of differences between common law and workers compensation. The plaintiff admitted that the true reason she decided not to take common law proceedings, when she originally elected to waive her common law rights, was not because she did not understand the difference between common law and workers compensation but because "My husband told me I was not going to common law. That was a direct demand" (t 38.49). However she devoted a large part of her affidavit explaining how confused she was about the difference between common law and workers compensation.

(10) According to the plaintiff's affidavit evidence, on 23 November 2000 as a result of further discussions and consultations, she instructed her solicitor to commence common law proceedings. However, the plaintiff gave evidence that the true reason that she elected to take common law proceedings was that by November 2000 she had become aware that her husband was "playing over the net and sneaking off to see her" (t 38.53). So she decided to do something for herself.

(11) On 1 December 2000 by letter the defendant was notified of the plaintiff's intention to commence common law proceedings.

(12) On 2 February 2001 the summons seeking an extension was filed.

The law 4 I turn now to consider whether leave to commence proceedings should be granted. Section 151D(2) of the Act provides: "a person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay for compensation more than three years after the date on which the injury was received except with the leave of the court in which the proceedings are to be taken." 5 The authorities clearly establish that the onus is on an applicant for extension of time to satisfy the court that it is just and reasonable to extend the time. The starting point for examination of the way in which this discretion should be exercised is Salido v Nominal Defendant (1993) 32 NSWLR 524. Salido was recently considered by the Court of Appeal in light of the intervening High Court decision of Brisbane South Regional Health Authority v Taylor (1996) 186 CLR; 139 ALR 1 in Holt v Wynter [2000] NSWCA 143; (1999-2000) 49 NSWLR 128 and Seib v Morton [2000] NSWCA 139, 26 June 2000. In Wynter the Court of Appeal held that the effect of the High Court decision in Taylor is that an application for an extension of time under the limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. 6 In Salido, at 532 Gleeson CJ set out the principles to be considered in the exercise of the discretion. Although these principles refer to s 52(4) of the Motor Accident Act, they are equally applicable to s 151D(2) of the Workers Compensation Act. 7 They are: "1. Section 52(4) confers a discretion which is to be exercised judicially, in a manner that furthers the purposes of the statutory context in which it appears. The immediate purpose, as with any limitation period, is to protect defendants against injustice of stale claims; the statute is also aimed at promoting forensic diligence.

2. Bearing in mind those statutory purposes, the question is whether, in the circumstances of each individual case, the applicant for leave has demonstrated that it is fair and just that leave should be granted.

3. The diligence, or lack of diligence, shown by a plaintiff or a plaintiff's legal representatives, in ascertaining and asserting his or her rights will ordinarily be a material factor, as will the extent of the relevant delay, and the reason for it.

4. The nature and extent of any forensic disadvantage to a defendant resulting from the plaintiff's delay will also be material. The effect, if any, of the delay upon the defendant's ability to defend an action is a matter to be taken into account, and may in some cases be of decisive importance.

5. Leave under s 52(4) may be refused if it would be plainly futile to grant it, and in that connection an applicant's willingness and ability to give a full and satisfactory explanation of any delays in reporting to police, notifying claims and commencing proceedings will be material." 8 The plaintiff submitted that she has discharged the onus and established that it is fair and reasonable to extend time in which the action should be brought. The defendant opposes the orders sought. 9 The first principle in Salido concerns the protection of the defendant against stale claims as well as the promotion of forensic diligence. The last day for the filing of the plaintiff's claim, as established by s 151D(2) of the Act was 15 November 2000. The plaintiff filed her summons some 11 weeks late on 2 February 2000. 10 The second principle which must be considered is whether it would be fair and just, given the circumstances of the applicant's case, to grant an extension of time. As the plaintiff is seeking an indulgence of the court, she should have been prepared to give open, frank and truthful evidence to the court both in her affidavit and when giving oral evidence. The plaintiff did not answer the questions asked of her and evidence given was contradictory of prior oral testimony and/or her sworn affidavit evidence. The discrepancies in the plaintiff's evidence were numerous. I do not regard some of discrepancies as being germane to the plaintiff's claim. However others were critical in relation to her claim. One critical issue is the nature and extent of the plaintiff's awareness at the expiration of the period as established under the Act. The plaintiff, in her affidavit at paragraph 14, stated that she did not understand, nor was she in a mental condition to understand, the consequences of making a common law claim, as opposed to pursuing an election made under the statutory scheme established by the Act. This was affirmed by her solicitor Ms White, who deposed that she was satisfied as at 23 November 2000, had no understanding of the concept of a common law claim. 11 However, during the hearing the plaintiff stated that upon meeting with Ms White on 14 September 2000 the explanation proffered by Ms White was such that she in fact had an understanding of her common law rights at that time. During cross-examination she was asked again if this was the correct version of events and she agreed (t 6.31). She was then asked by counsel "And you meant by that, that explanation, that that proper explanation was given to you by Elyse White when you first went to see her?" (t 6.27-30) she replied "That is right" (t 6.31) and that there was no doubt about that at all (t 6.37). 12 This evidence contradicted statements made by the plaintiff in her affidavit. Paragraph 12, deposed that at the time when the plaintiff signed the instrument that waived her right to make a common law claim, she did not have a proper understanding of what she was doing as she was nervous and upset. When asked for an explanation for the discrepancy, the plaintiff answered that she only arrived at an understanding of what a common law claim involved after a series of meetings with Elyse White (t 43.47). I cannot reconcile this contradictory evidence. Nor can I attribute these inaccuracies to the level of drugs she had been taking. If the plaintiff's evidence is unreliable on this important issue, it cannot be expected that at trial her evidence would be any more reliable. 13 The third issue that this court must consider when determining the manner in which the discretion is to be exercised is the diligence of the plaintiff or the plaintiff's solicitors in ascertaining and asserting the plaintiff's rights. This diligence is to be a material factor. The plaintiff first approached Firths in what she originally claimed in her affidavit as December 1997. During the hearing she claimed this was incorrect and that it was probably early 1998 (t 14.47). The plaintiff had the correspondence in the form of three letters and some telephone calls. Furthermore, another inconsistency was revealed in her affidavit during cross examination. The plaintiff stated that the first and only time she attended the offices of and met Stephen Firth was 11 September 2000. During the meeting with Mr Firth the plaintiff claimed that she became upset, angry and confused at what she perceived was his inability to explain the legal concepts and consequences involved in making a common law claim as well as his rudeness. The plaintiff claimed that the meeting did not end amicably and as a result she decided to change solicitors (t 34.20). 14 The plaintiff instructed to Marsdens shortly after that meeting and Ms Elyse White had carriage of the matter. Ms White attended the plaintiff's home on several occasions in order to discuss the claim with the plaintiff. On 31 October 2000 the plaintiff signed a document stating that she did not wish to pursue a claim under common law, albeit that the plaintiff claimed it was at her husband's direction (t 37.57). However on 23 November 2000 the plaintiff reversed this decision and instructed her solicitor that she wished to commence proceedings under common law. The plaintiff's current solicitor has been most diligent. The primary reason for the delay in the filing of the claim was the plaintiff's change of heart and mind. 15 The fourth consideration this court must take into account is the nature and effect of any forensic disadvantage. There was a relatively short period of delay, 11 weeks. The defendant has not filed any evidence to establish actual prejudice, but there is some presumptive prejudice caused by the delay. The defendant had notification of the accident shortly after it occurred and the plaintiff has been in receipt of workers compensation payments. 16 The fifth and final consideration imposed on this court by Salido is that leave may be refused if it is futile to do so. In this regard the plaintiff's ability to give a full and satisfactory explanation for the delay in commencing proceedings is material. There is the plaintiff's version of the accident which is supported by an employee's compensation claim dated 25 November 1997, ie, 10 days after the accident. She consulted a doctor at Liverpool hospital shortly after the accident occurred. There are medical reports available. Dr Fulop in her report dated 14 May 1998 noted that she was unable to explain the plaintiff's severe degree of alleged pain and incapacity and could only explain her presentation as some abnormal illness behaviour as part of a chronic pain syndrome. Dr Roberts in his report dated 24 September 1998 states that the plaintiff is a malingerer. 17 A WorkCover report dated 9 May 1998 by Dr G K Manku refers to a soft tissue injury. There is also a report of Dr Daryl M Salmon dated 28 April 1998. Dr William Sears, neurosurgeon in his report dated 19 February 1998, did not see any serious disc herniation evidence on the MRI but there was clearly some mild degenerative changes through the mid cervical spine. Dr Noel Kenny in his report dated 7 January 1998 refers to a creation of disc damage at several levels particularly C5/6 and C6/7. 18 It is my view that it is not just and reasonable to extend time due to the difficulty this court had in understanding and accepting the evidence of the plaintiff which has been referred to in detail earlier in this judgment. Further the plaintiff gave some curious answers such as that "just out of the blue" she telephoned her former solicitor to ask about common law and negligence, and also how she found her way to Firths Solicitors by the recommendation of a taxi driver and customers. 19 The difficulty the court had in understanding the plaintiff's evidence was highlighted by the changes she made to her affidavit during both examination and cross examination. The plaintiff gave evidence that she read one draft of the affidavit, corrected it and sent it back to her solicitor who then prepared the final copy for her to sign (t 7.51). Given that it was considered by the plaintiff, corrected by her and at the time she thought all the facts to be true and correct (t 7.56) it is unusual that she picked up on so many obvious errors in the witness box. The plaintiff said that she found it difficult to give accurate answers to several question due to the "clouding of her mind" by the medication she was taking due to her condition. She had no recollection of the circumstances surrounding the filling out of her compensation claim form as she "was heavily drugged at the time" (t 10.37). At the time of the accident and afterwards, all the paperwork to be completed was done by her husband as the plaintiff had an insufficient understanding of events at the time as she was on drugs (t 11.40). The plaintiff gave further evidence that she was on full-time drugs until July 2000 (t 18.7) and as such she had her husband complete all documents until that time. 20 The medical opinion will, to a large extent, depend upon the veracity of what the plaintiff tells the doctors in relation to the pain she experiences and symptoms she suffers. The lack of accuracy of her evidence makes it difficult for the defendant to prepare for trial. In these circumstances the defendant suffers actual prejudice. The plaintiff has not discharged her onus. It is not just and reasonable to grant leave to commence proceedings. The summons is dismissed. 21 Costs are discretionary. Costs normally follow the events. The plaintiff is to pay the defendant's costs. 22 The court orders:

(1) Leave for the plaintiff to commence court proceedings in respect of injuries suffered as a result of an accident which occurred on 15 November 1997 is refused.

(3) The plaintiff is to pay the defendant's costs. **********

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