Mr P, Ipp JA, Spigelman CJ, Sheller JA, Gleeson CJ
Source
Original judgment source is linked above.
Judgment (2 paragraphs)
[1]
Judgment
HIS HONOUR: This is an application under s 151D of the Workers Compensation Act 1987. By a statement of claim filed on 4 December 2015, the plaintiff claims damages for personal injury which he sustained in the course of his employment on or about 1 April 2005. Under s 151D(2), a person to whom compensation is payable under the Workers Compensation Act 1987 is not entitled to commence court proceedings for damages in respect of the injury concerned against his employer, who is liable pay to the 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. There is no dispute that the plaintiff was injured on 1 April 2005, arising out of and in the course of his employment with Illawarra Stevedores Pty Ltd. The three-year limitation period expired on 1 April 2008. The plaintiff accordingly seeks leave nunc pro tunc to extend the time within which to commence his action up until 4 December 2015, when it was actually commenced.
The Workers Compensation legislation provides that, during certain periods, time does not run for the calculation of the three-year limitation period. MFI 2 is a schedule headed "Synopsis" prepared by learned counsel for the plaintiff, indicating when time was not running. According to that synopsis, time did not run between 12 November 2012 and 12 January 2013 because there was a medical dispute in the Workers Compensation Commission about whether the plaintiff had permanent impairment in excess of the threshold. The relevant provision is s 151DA(1)(a) of the Workers Compensation Act 1987. It is also clear that time did not run between 20 February 2013 and 20 March 2014 because there was a delay in determining the work injury damages claim following the time that the plaintiff provided all relevant particulars. The appropriate legislative provision is 151DA(1)(a1). It is also common ground that time stopped running on 12 February 2015, during the period that the pre-filing statement remained current. That remained the case until the statement of claim was actually filed. The relevant legislative provision is s 151DA(2).
Counsel have calculated that, between the date of the plaintiff's injury and the date of the filing of the statement of claim, 552 weeks expired. The time during which the "clock" was not running was in total a period of 86 weeks and the balance is 446 weeks. The three-year limitation period is a period of 156 weeks and, therefore, the plaintiff was out of time by a 310 weeks, well over a period of almost six years.
Counsel only referred me to one authority, a decision of my own, in which I sought to summarise the relevant law. The decision is Service v MacDougall [2011] NSWDC 66. In that case, I said this:
"The principles to be applied on consideration of the plaintiff's motion are contained in the decision of the Court of Appeal in Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104, particularly in the judgment of Ipp JA. Spigelman CJ concurred with Ipp JA and, in essence, also did Sheller JA. Commencing at [87] his Honour said this:
"In my opinion, in limitation legislation such as 151D(2) of the Workers Compensation Act, where a broad discretion is conferred to grant leave to sue after expiry of the limitation period, the general question that has to be asked is what is fair and just (per Gleeson CJ in Salido). Or what does the justice of the case require (per McHugh J in Brisbane South Regional Health Authority). In answering such a question, the justice of the case must be evaluated by reference to the rationales of the limitation period that has barred the action, including the four rationales to which McHugh J referred."
Those rationales are recited by his Honour in [78] of his reasons. They are these:
"(a) As time goes by, relevant evidence is likely to be lost;
(b) It is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed;
(c) It is desirable 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. Many in the community have a significant interest in knowing that they have no liabilities beyond a definite period;
(d) The public interest requires that disputes be settled as quickly as possible."
I return now to the summary of the position provided by Ipp JA. It is this:
"[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 a 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. It is hardly necessary to provide authority for this proposition, but, in addition to the authorities to which I have already referred, I would cite the following [there follows a large number of decided cases].
[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."
In the present case, the three-year limitation period expired on 5 March 2004. I am asked to grant an extension to permit the plaintiff to bring the proceedings almost ten years after the event. That is almost seven years after the expiry of the limitation period. There is authority that the weight of the onus that a plaintiff must discharge in order to be granted leave to commence proceedings out of time varies with the length of time which has elapsed since the proceedings became statute-barred and the application for leave being made. The shorter the period of time, the lighter the onus is. That authority is Tang v PM Industries Pty Ltd, a decision of Master Greenwood on 31 October 1996. Given the period now in question, the plaintiff bears a great onus."
No submission has been put that there has been a failure by the plaintiff to properly or fully or adequately explain the delay in the commencement of proceedings. Indeed, that there was no relevant delay was accepted by learned counsel for the defendant, Mr Perry. The delay is explicable by the provisions of the workers compensation legislation itself.
On 1 April 2005, the plaintiff sustained an injury to his left hand near the base of his thumb. He reported that injury and made a claim for workers compensation, and that claim for compensation was accepted. On either that day or 2 April 2005, the plaintiff consulted his general practitioner, Dr Talib. He was prescribed Brufen and was told to apply ice to the injured area of his left hand. According to the plaintiff's affidavit, he continued working, but his left thumb and hand remained sore. Some of the lay evidence suggests that the plaintiff may have had a few days off work.
The plaintiff, however, continued to consult Dr Talib. In the plaintiff's affidavit, he said that he also developed a tennis elbow pain in both arms sometime in 2006. By "tennis elbow", a layman generally is referring to medial epicondylitis. For the problems with the plaintiff's elbows, Dr Talib injected cortisone. At the same time, a cortisone injection was also made into the base of his thumb.
The plaintiff had commenced working for Illawarra Stevedores Pty Ltd on 2 April 2000. He was retrenched on 1 April 2007. He then commenced working as a self-employed carpenter and handyman at various places in and around the south coast of this State. On 4 June 2007, the plaintiff obtained some legal advice from his current solicitor, Mr David Trainor, of WG McNally Jones Staff. Mr Trainor provided him with general advice concerning his rights to claim workers compensation if he was incapacitated for work and of the availability of a possible claim for lump sum compensation if he suffered from any permanent impairment. He was also told that he could not pursue any claim for permanent impairment until his condition had stabilised.
I know from exhibit E-E that the plaintiff saw Dr McKessar for the insurer of his former employer on 26 June 2007. I assume that the doctor in question is the well-known hand surgeon. At about this time, the plaintiff was referred by Dr Talib to Dr YK Ho, an orthopaedic specialist, at Wollongong. On 6 December 2007, Dr Ho provided a report to the plaintiff's solicitor, advising that the plaintiff required a fusion of the first carpometacarpal joint of his left hand. The defendant, the insurer of the plaintiff's former employer, disputed liability for the operative treatment proposed by Dr Ho.
The plaintiff made an application to the Workers Compensation Commission and, on 23 April 2008, Arbitrator McManamey made an order that the defendant pay the plaintiff's expenses under s 60 of the Workers Compensation Act 1987. That, I am told, was to cover the plaintiff's entitlement to have the operative treatment proposed by Dr Ho carried out at the defendant's expense. Surgery was practised on 3 July 2008. However, the plaintiff's problems continued. He was reviewed by Dr Ho on 15 August 2008 and was advised by Dr Ho that the titanium plate that he had inserted into the plaintiff's hand had snapped. He was then referred to a specialist hand surgeon, Dr Mark Nabarro, who carried out a second fusion operation on 29 August 2008. The plaintiff continued to have problems with his left hand. He saw Dr Nabarro again and underwent, on 27 March 2009, further surgery to a tendon in his left hand. That is the description provided by the plaintiff himself. According to the plaintiff's solicitor's affidavit, the operation was to free a tendon in his left thumb. Some time was allowed for the plaintiff to recover from his surgery. Mr Trainor then made arrangements for him to be examined by Dr Matthew Giblin on 15 June 2009. The reason for that examination was to ascertain whether the plaintiff had suffered from any whole person impairment as a result of the injury to his left hand.
Dr Giblin did examine the plaintiff on 15 June 2009. He sent a report to the plaintiff's solicitor, which was received on 2 July 2009. Dr Giblin assessed the plaintiff as have a 12% whole person impairment (WPI) as a result of the injury to his left hand. To bring an action for damages against his employer, the plaintiff had to establish at least 15% WPI. The plaintiff made a claim upon the defendant for a lump sum under s 66. That claim was served on the defendant on 8 July 2009. A dispute then also arose as to the plaintiff's entitlement to a lump sum under s 67 for pain and suffering, anxiety, and distress resulting from that impairment. That dispute was settled eventually by negotiations sometime on 4 November 2009.
The plaintiff was still experiencing problems with his left hand. He remained under the care of Dr Nabarro. He returned to see Dr Nabarro in November 2011. Dr Nabarro sent the plaintiff to have a bone scan, which was performed on 10 November 2011. The plaintiff was advised after the bone scan that it showed further degenerative change in the joint proximal to the site of the previous surgery. The plaintiff had explained to him by Dr Nabarro that he could either undergo surgery to fuse that joint, which would leave him "more or less permanently stiff" or, in the alternative, have surgery to remove the bone. Dr Nabarro told the plaintiff that he would discuss the form of surgery that ought be performed with his colleagues. In the meantime, the plaintiff underwent physiotherapy and wore a splint. Further surgery was practised by Dr Nabarro on 3 April 2012. That surgery was a radial styloidectomy and proximal row carpectomy.
However, in the meantime, a further dispute had arisen between the plaintiff and the defendant as to his entitlement to weekly payments of Workers Compensation under s 40 of the Workers Compensation Act 1987. The defendant had been making voluntary payments of Workers Compensation to the plaintiff at the maximum statutory rate. On 1 November 2011, the defendant served a notice under s 54 of the Workers Compensation Act 1987, advising him that it would be reducing payments of weekly compensation to $269.33 per week with effect from 12 December 2011. On 11 January 2012, the plaintiff commenced proceedings in the Workers Compensation Commission, claiming a resumption of payment of weekly payments at the maximum statutory rate. Those proceedings were heard by Arbitrator Garth Brown on 4 April 2012, and an award was entered up in favour of the plaintiff on 23 April 2012. The arbitrator restored payment at the maximum statutory rate for a single worker with two dependent sons.
One will note that the hearing in the WCC occurred on the day after Dr Nabarro practised surgery on 3 April 2012. At the time of the hearing, the plaintiff clearly would have been totally incapacitated for any form of work. I leave that question to one side.
Allowing time for the plaintiff to recover from that surgery, Mr Trainor arranged for the plaintiff to be re-assessed by Dr Matthew Giblin on 17 September 2012. Following upon that examination, Dr Giblin prepared two reports, certifying WPI of 31%. I do not know how long it took Dr Giblin to type that report and to send it to Mr Trainor, but in the normal course one would expect a delay of a number of weeks at least. One can see, therefore, that, by the beginning, probably of, October 2012, the plaintiff's solicitor obtained Dr Giblin's report, certifying 31% WPI. On 23 October 2012, the plaintiff made a claim for a further lump sum for further permanent impairment of his person because of the increased loss of efficient use of his left upper limb.
On 6 November 2012, the plaintiff conferred with Mr Trainor, who advised him that he was entitled to pursue a work injury damages claim against his former employer, in whose shoes the current defendant now stands, because he crossed the statutory threshold according to Dr Giblin, although whether he had a WPI of 15% or greater would need to be agreed by the defendant or determined by the appropriate authority. On 21 January 2013, the defendant declined liability for the plaintiff's claim for further lump sum compensation for further impairment of his person.
On 20 February 2013, the plaintiff commenced his third set of proceedings in the WCC. Eventually, the WCC appointed Dr YK Ho as the approved medical specialist to determine the degree of permanent impairment. One would think that such a person ought to have been disinterested, but Dr Ho had previously treated the plaintiff, albeit unsuccessfully. Dr Ho examined the plaintiff on 1 February 2014 and produced a medical assessment certificate bearing date 13 February 2014. On 20 March 2014, the WCC made an order that the defendant pay to the plaintiff, as lump sum compensation under s 66, $32,000 in respect of further permanent impairment resulting from the injury of 1 May 2005. There remained, however, an outstanding question as to the plaintiff's further entitlement under s 67, but that was eventually settled and a consent order was made on 13 May 2014.
In the meantime, on 31 March 2014, the defendant issue a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998, declining liability for the plaintiff's work injury damages claim. I know that, on 10 July 2015, the plaintiff supplied a pre-filing statement of claim, which "stopped the clock running" up until the time of the filing of the statement of claim.
Clearly, the delay was caused by the slow progression and deterioration of the plaintiff's medical condition, by the need for repeated surgery, and ultimately, it was only decided authoritatively that the plaintiff had crossed the statutory threshold to be able to bring a work injury damages claim when the result of the assessment of Dr Ho made on 1 February 2014 was published on 13 February 2014. All that has happened since has happened in accordance with the legislative scheme prescribed by the Workers Compensation legislation, by which I mean the Acts of 1987 and 1998 to which I have referred.
As I said, Mr Perry did not dispute that the plaintiff had provided an adequate explanation for the delay. Mr Perry, however, submitted that there was real prejudice in the current case because of a lack of documentary evidence, in particular, because documentary evidence had been lost or destroyed. In essence, Mr Perry was relying upon the first rationale for limitation provisions as outlined by McHugh J in Brisbane South Regional Health Authority at [78], which was referred to in the quotation I made towards the beginning of these reasons.
It is necessary at this stage to advert to the pleadings. Paragraph 5 of the statement of claim is this:
"On or about 1 April 2005, the plaintiff in the course of his employment was working at the Number 2 Products Berth at Port Kembla Harbour and was using a Signode pneumatic tensioner and a two-handed crimping tool in order to bundle timber dunnage, when the metal strapping, being tensioned, broke and as a consequence his left wrist, thumb, and hand were struck by the timber dunnage and the crimper. As a consequence, he sustained serious injuries, loss, and damage."
Paragraph 6 of the statement of claim avers that the plaintiff's injuries, loss, and damage were caused by the negligence of his former employer. Relevant particulars of negligence are these:
"(e) failing to heed previous complaints concerning the propensity of the metal strapping to break;
(f) failing to heed previous injuries sustained by co-workers as a consequence of the metal strapping breaking;
(g) failing to supply proper and sufficient assistance in order to secure the timber dunnage;
(h) failing to implement a safe working method statement in relation to the use of the pneumatic tensioning and crimping tools;
(i) failing to supply metal strapping of sufficient strength;
(j) continuing to use inferior metal strapping for the purposes of bundling timber dunnage, after its use to secure cargo on board vessels had been abandoned."
Before me are statements of three co-workers of the plaintiff. The first is from Mr Thomas Bauer. The statement is dated 18 August 2015 and was served upon the defendant under cover of letter dated 25 September 2015. Mr Bauer was employed by Illawarra Stevedores Pty Ltd as a Marine Operator, the same occupation that the plaintiff had in Illawarra Stevedores Pty Ltd, from about 1998 up until 2011, when the business was sold to Patrick Stevedoring, known familiarly on the waterfront as Patrick's. At the commencement of this statement, Mr Bauer outlines the use of Signode equipment to affix steel strapping to coils of steel that were packed in the holds of ships and which were also used to secure wooden dunnage that was used both on the vessels and on the wharves during the loading of ships.
Mr Bauer's statement continues, thus:
"5. Up until sometime in about late 2004 or early 2005, I had never experienced much problem in using the Signode equipment. We used strappings supplied by Signode and it was a very good product. In my experience, it very rarely broke. This only occurred to me on about three or four occasions. My recollection is that these incidents occurred when the strapping was cut by a sharp edge on a steel coil.
6. Sometime in about late 2004 or early 2005, Bob Graham, the company's general manager, acquired strapping from a different source and which was not supplied by Signode. We were instructed to use this strapping, which he said was less expensive than the Signode product.
7. We used this new strapping for a period of time, but I observed that on many occasions that the strapping would snap as you were tensioning it up. When this occurred, the strapping would fly through the air very quickly. I got some nicks on my hands and also cut my clothing.
8. The other machine operators suffered similar injuries, and we all realised that the strapping was not good.
9. After several weeks, Bob Graham instructed us not to use the new strapping to secure the steel coils. We went back to the old Signode strapping. The cheaper strapping was taken over to the multi-purpose berth and was thereafter only used for bundling up timber dunnage.
10. We loaded steel coils at numbers 1 and 2 berth, and also at the multi-purpose berth."
A statement was obtained from Mr Shane Wicks dated 13 November 2015, a copy of which was served upon the defendant's solicitor on 19 November 2015. Paragraph 3 of that statement corroborates the statement of Mr Bauer that, at some time, a new type of strapping was supplied which was "vastly inferior". In Wicks' experience, that strapping broke three or four times each shift. When the strapping broke, it was very dangerous because the strapping would fly off without warning at a tremendous speed.
A statement was also obtained from Mr Greg Beaton. That is dated 13 July 2016. He was also employed as a Marine Operator for Illawarra Stevedores until commencing with Toll Stevedoring in mid-2005. In paragraph 3 of his statement, Mr Beaton said this:
"Illawarra Stevedores supplied marine operators who secured coils of steel cargo in ships' holds. This was done using Signode tensioner and crimping equipment to run steel stripping through the coils and latch them together so that they would not move. This system worked well and I don't recall any problems with its use until the company acquired a batch of steel strapping which was defective. This occurred sometime shortly before I last worked for the company. When the strapping was tensioned up, it frequently would snap. I recall this happening to me and to other employees. After a while, it was decided by management that it was simply not good enough to use for securing cargo. It was thereafter only used to bundle up dunnage on the wharves."
I should indicate that the plaintiff's affidavit, which explains the process of securing steel coils in ships' hulls with the Signode crimping machine and the Signode tensioning machine very fully and succinctly, indicates that he was injured whilst working at the multi-purpose berth. The statement of claim and the first affidavit of Mr Trainor both refer to the plaintiff's injury occurring at the Number 2 Products Berth. This, for a little while, caused some consternation to me, in any event. A copy of a map of the Port Kembla Steelworks made in 1993 was obtained from a street directory of Wollongong. That showed the Number 2 Products Berth, as well as a Number 1 Products Berth, but did not show any multi-purpose berth. With the assistance of the plaintiff and my Associate turning up on his computer the modern configuration of the inner harbour at Port Kembla Harbour, it was ascertained that an oblong inlet at the northern end of the western basin of the inner Port Kembla Harbour had, at sometime between 1993 and 2005, been filled in and that, on the north-eastern side of the western basin of the inner Port Kembla Harbour, had been constructed the multi-purpose berth. The three relevant berths have been circled in blue ink on a copy of the map, which is MFI 3, and the oblong-shape basin at the northern end of the western basin of the inner Port Kembla Harbour has been hatched through to indicate it has now been filled in. When one consults that map, one can see that the Number 2 Berth and the multi-purpose berth are very close to each other and are probably contiguous, whereas the Number 1 Berth is a long way away from those two. There, accordingly, does not appear to be any real discrepancy in saying that the accident occurred at the multi-purpose berth, or the Number 2 Berth, or that when the strapping alleged to be inferior or defective was stopped being used on ships that it was used only on timber dunnage at either the multi-purpose berth or the "wharves", indicating probably both the multi-purpose berth and the Number 2 Berth.
Mr Perry pointed out that possible documents had been lost. A little should be said at this stage about the history of the plaintiff's former employer. This is set out on p 2 of an investigator's report of 10 December 2014, which is annexed to the affidavit of the defendant's solicitor, which is exhibit 1-1. The relevant history is this:
"During the course of our investigation, we noted that the Insured formerly carried on a stevedoring business in Port Kembla. In 2000, it setup a separate business entity, "Illawarra Shipping Services", to provide what is known as "security services" to BHP Steel. This was a specialised stevedoring activity whereby steel strapping was used to secure coils of steel to each other in the hold of ships to prevent the load moving during transit. This task was carried out by a team of three men using a "Signode" crimping machine and tensioner. Both of these were hand-held devices and the Insured had two or three sets of the crimping equipment.
The Insured stated that the company closed down in April 2007, as it was unprofitable. At this time, the plaintiff declined an offer of continuing employment with the Insured as a stevedore and instead accepted a redundancy. The Insured sold its business to Patrick Stevedore's in 2011 and ceased operating all together in 2013. It was de-registered by ASIC on 22 January 2014."
It would appear that "Illawarra Shipping Services" was merely a name for part of the business carried out by Illawarra Stevedores Pty Ltd. The business under that name operated between 2000 and April 2007. One of the documents before me is a letter from the plaintiff's former employer to the plaintiff dated 23 March 2007, indicating that Illawarra Shipping Services would close down on 30 March 2007. However, it is clear that Illawarra Stevedores Pty Ltd continued to trade as such until 2011, when the business was sold to Patrick Stevedoring and eventually Illawarra Stevedores Pty Ltd was wound up.
One of the documents obtained by the investigators retained by the defendant's solicitors is a "Working Safely on the Waterfront" manual, which has the names of three businesses and their logos on the front cover. The three businesses and their logos are: Illawarra Stevedores, Illawarra Shipping Services, and Newcastle Stevedores. It transpires that the former managing director Illawarra Stevedores is Mr Geoff Beezley, who was the managing director of Illawarra Stevedores Pty Ltd. Clearly, Illawarra Stevedores Pty Ltd had two separate businesses, but Illawarra Stevedores Pty Ltd and Newcastle Stevedores were two cognate or related companies.
As to records, the investigator's report of 10 December 2014 says this:
"Most of the Insured's records relating to the operations of Illawarra Shipping Services appear to have been lost or destroyed. Some of its records were kept by a related entity, Newcastle Stevedores Pty Ltd, and our initial inquiries were directed to the managing director of this company, Geoff Beezley, who is based in Newcastle. Mr Beezley was also formerly the managing director of the Insured.
Our investigator travelled to Newcastle on 9 October 2014 to interview Mr Beezley and inspect the insured's records held there. The only documents which Mr Beezley was able to locate relevant to the present claim are 'Working Safely on the Waterfront' booklet, a 'Safe Use and Maintenance of Signode Air Tools' document, and a copy of a letter dated 22 March 2007 to the Worker regarding the closure of Illawarra Shipping Services' business and the offer of a redundancy. Copies of this documents are attached …"
The investigator did not take any formal statement from Mr Beezley. It is not clear to me on what basis the investigator stated that most of the records of Illawarra Stevedoring Pty Ltd and its business, Illawarra Shipping Services, "appeared" to have been lost or destroyed. It is also unclear as to why some only of those records were held in Newcastle by Newcastle Stevedores Pty Ltd. The job done by the investigator to try to find what documents there may have been is not adequately explained and is far from satisfactory.
What is adequately explained is that any record kept by Signode concerning either Illawarra Stevedores Pty Ltd or Illawarra Shipping Services was purged from its records at some time in the past, when records prior to 2008 were purged. However, as I pointed out to Mr Perry during argument, it is hardly likely that one would find in the records of Signode a record relating to the purchase by Illawarra Stevedoring Pty Ltd/Illawarra Shipping Services of steel strapping from some source other than Signode. However, such records might indicate an inability to supply at some time Illawarra Shipping Service Signode strapping when it was required.
The evidence does suggest that the defendant's records relating to its purchase of steel straps are no longer extant. However, the problem is largely solved by the inquiries made by the defendant's solicitor's investigator. Inquiries were made of the former "general manager" of what I shall refer to as the "Illawarra business", Mr John Willebrands. Mr Willebrands provided a statement on 24 September 2005 in which he denied that any strapping was used by Illawarra Shipping Services other than Signode strapping. From the investigator's report of 10 December 2014, in which it was stated Mr Willebrands was 82 years old, at the time of the plaintiff's injury Mr Willebrands would have been 72 years old and it is difficult to know whether Mr Willebrands was the managing director of Illawarra Shipping Services at the time of the plaintiff's accident. It is unknown when he retired. However, a statement was obtained from Mr Robert Graham. Contrary to what was stated by Mr Bauer, Mr Graham was not the managing director of Illawarra Shipping Services, but he was its "superintendent". He retired on 22 June 2005, shortly after the plaintiff's injury.
Mr Graham made a statement on 25 November 204, which does not deal with the matter that I am currently dealing with. However, the solicitor for the defendant, Mr Lee, swore an affidavit on 4 July 2016, paragraph 10 of which says this:
"The Investigator was told by Mr Graham that, on one occasion, the defendant [scilicet, Illawarra Shipping Services] was unable to secure from Signode and had to buy from another supplier."
It would appear that further investigations were made by the defendant solicitor's investigation in March 2016 and the investigator had a further conversation with Mr Graham. Learned senior counsel for the plaintiff, Mr Roberts SC, objected to the penultimate paragraph on p 1 of a letter from AB Investigators to Mr Lee dated 14 March 2016, which is one of the annexures to Mr Lee's affidavit. When the objection was made, Mr Perry did not press the tender of the paragraph in question. When the significance of the current problem came to light, Mr Roberts sought to withdraw his objection, but Mr Perry would not then press the tender of the paragraph.
Suffice it to say that if the records have been destroyed about this non Signode strapping and its provision to the workers employed by Illawarra Shipping Services, the answer to that question or questions concerning that strapping can be answered directly by Mr Graham, a former employee of Illawarra Shipping Services, a person who one might think would be amenable to be called by the defendant, his having already given a statement to the defendant's investigator. In other words, although one might readily infer that records relating to the acquisition of this non-Signode strapping are no longer extant, that the memory of it is still available to a person who was the superintendent of the operations of Illawarra Shipping Services at the relevant time. Therefore, the extent of the prejudice suggested by Mr Perry does not really exist. Mr Perry raised no other ground objecting to the relief being sought by the plaintiff.
Mr Perry also relied on the second rationale for the existence of limitation provisions identified by McHugh J, that is, that it is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to have passed. That is a relevant consideration, but the extent of the oppression can only be measured by the amount of prejudice suffered by the person against whom it is proposed to bring the action. Here, I am not persuaded that there is any substantial or significant prejudice.
Furthermore, one must bear in mind that, unlike many situations in which limitation periods are applicable, the modern industrial accident litigation does not permit a plaintiff to commence proceedings merely within the limitation period, but the plaintiff must overcome the other statutory hurdle of proving WPI of 15% or more prior to being able to bring the proceedings. The present legislation regarding industrial accident common law litigation contains in itself a regime which has the inherent ability to prevent a plaintiff commencing proceedings without overcoming other statutory hurdles.
When I consider in the current case the third rationale identified by McHugh J, I again point out, as one often does in applications under s 151D, that the plaintiff has an ongoing entitlement to weekly payments of compensation. The effective defendant, the insurer, which in the current proceedings is the actual defendant, has an estimate, has long known about the case, has known about it for many, many years, and the commencement of proceedings 10 years after the accident occurred did not come, so to speak, as "bolt out of the blue". It would have been obvious to the insurer of the former employer that if the plaintiff overcame the statutory threshold that an action for damages was a possible result and, in any event, had to maintain adequate monetary resources merely for the purpose of dealing with the plaintiff's workers compensation claim. The action for damages merely might have caused the estimate or reserve of money held to deal with the claim to be raised to a greater level.
The final rationale identified by McHugh J is well expressed in the usual Latin maximum interest rei publicae ut finis sit litium: it is in the interests of the State that there be an end to litigation. The nice thing about a common law action is that, once judgment has been entered, that brings the whole matter to an end, unlike a workers compensation claim, which can lead to repeated pieces of litigation in the appropriate forum, in this case, the WCC, where there have been to date at least three sets of proceedings. If these proceedings were not extant, one would think that the defendant would, as an applicant employer, seek to either reduce or terminate the award of weekly payments which the plaintiff is currently receiving from the defendant.
Ultimately, in deciding whether a limitation period ought be extended, one must determine whether a fair trial can be held. I have little doubt that, in the current case, such a trial can be held. For those reasons, I make orders (1) and (2) as sought in the notice of motion filed 22 April 2016 as I amended it today.
[2]
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Decision last updated: 28 September 2016