Davis v Qantas Airways Limited

District Court of NSW|2018-08-24

Notice of motion

This is a contested notice of motion brought by the plaintiff, Mr Warren Davis, pursuant to s 151D of the Workers Compensation Act 1987, seeking leave to commence an out of time workplace injury damages claim in negligence against his employer, Qantas Airways Limited, the defendant.

Legislation

The relevant sections of the statutory scheme under which this motion must be considered are s 151D and s 151DA of the Workers Compensation Act 1987.
Section 151D of that Act provides: 151D Time limit for commencement of court proceedings against employer for damages (1) (Repealed) (2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned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 that compensation more than 3 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. (3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies. (4) This section does not apply to the commencement of court proceedings in respect of a claim within the meaning of Part 5 of the Motor Accidents Act 1988, Chapter 5 of the Motor Accidents Compensation Act 1999 or Part 4 of the Motor Accident Injuries Act 2017.

Factual background

During the hearing the parties made appropriate concessions which obviate the need for a more detailed review of the evidence beyond the summary that appears in the following paragraphs.
On 1 August 2008, the plaintiff was employed by the defendant as an airport freight co-ordinator. The plaintiff's duties required him to repetitively move and manipulate items of bulk palleted freight in and out of aircraft holds. On that date, the mechanical apparatus which ordinarily enabled palleted freight to be rolled about for such work duties was inoperable.
The plaintiff was therefore required to manually pull a heavy pallet out of an aircraft hold without mechanical or additional manual assistance. This resulted in him sustaining a brachial plexus injury to his cervical spine, which has left him with severe neurological impairments, and which has in turn precluded him from working.
Consequent upon those events he continues to suffer very significant disabilities. If his claim in negligence, as pleaded, is found to be successful in all respects, without attempting a precise quantification, it seems that the potential damages award would be of the order of several million dollars.
The plaintiff promptly completed a report of accident notification. On 12 August 2008, the defendant accepted liability for the plaintiff's right shoulder injury. Thereafter, between 2008 and 2011, a labyrinthine process of the required workers' compensation claim procedures was pursued on his behalf. That process included various acceptances, declinatures, and consent orders, along with medical assessments.
On 21 January 2011, the plaintiff's lawyers contacted WorkCover as they were unable to obtain a claims response from the defendant. On 22 February 2011, WorkCover advised the plaintiff's solicitors that it was also unable to obtain a claims response from the defendant.
From that time, several claims were filed and discontinued on the plaintiff's behalf in the Workers' Compensation Commission, in the context of consent orders being made, as is evident in the chronology of events relied upon by the plaintiff: MFI "1" and MFI "2".
The third anniversary of the plaintiff's injury was 1 August 2011. However, at various times from the nominal date, the limitation period became suspended and then recommenced by virtue of the applicable statutory mechanisms: s 151DA of the WC Act.
On 2 August 2013, the Workers' Compensation Commission issued the plaintiff with a whole person impairment of 6 per cent. The further complex whole person review process and associated medical examinations continued until 4 May 2016, which also meant there were several suspensions and recommencements of the running of time for the filing of proceedings. At that time, the Workers' Compensation Commission determined the plaintiff's whole person impairment to be 22 per cent, which triggered the plaintiff's entitlement to bring his proceedings to claim damages for the subject injury.
On 8 February 2017, pursuant to s 318 of the WC Act, the plaintiff's pre-filing statement was served on the defendant.
The present proceedings were filed on 23 June 2017. The defence, which was filed on 26 July 2017, raised a limitation defence pursuant to s 151D of the WC Act, thus giving rise to the plaintiff's motion under present consideration.
After the plaintiff's proceedings were filed, in this Court, between 15 August 2017 a series of procedural and interlocutory listings then ensued before registrars and another Judge of the Court, to 29 June 2018, at which time the hearing of the plaintiff's motion was fixed for 24 August 2018.
The total lapse of time from the date of injury to the filing of the plaintiff's notice of motion was 525 weeks, or 10.09 years, which on its face is a very significant period of time.
However, due to the operation of s 151DA of the WC Act, the running of time was suspended for several periods totalling 290 weeks. The remaining non-consecutive 235 weeks, or 4.5 years, represent delays requiring explanation. At the hearing, that delay was identified as becoming shortened by a further period of 10 months, thereby requiring an explanation of the delays in an aggregate period of less than 4 years.

Issues

To obtain the leave sought, the plaintiff must establish that there is a sufficient and acceptable explanation for each period of delay; there is a reasonably arguable claim of negligence against his employer; and that a fair trial of the case could be had without the defendant suffering significant prejudice, as distinct from the presumptive prejudice that is generally concomitant with litigation on disputed matters of fact.

Evidence

The plaintiff's affidavits affirmed on 30 May and 9 July 2018 were read. The plaintiff was cross-examined on some matters arising from those affidavits. The plaintiff also relied on an affidavit from Mr Michael Hyland, solicitor, affirmed on 28 June 2018 concerning proof of correspondence and outlining chronological events.
The defendant relied upon two affidavits affirmed by its solicitor, Mr Timothy Ainsworth, respectively affirmed on 18 June and 7 August 2018.

Whether explanation for delay is sufficient and acceptable

The plaintiff points to the following circumstances that he contends provide sufficient explanations for the delay he has incurred in filing the present proceedings: 1. There was no delay in reporting the injury that he suffered on 1 August 2008; 2. Liability for the injury was initially accepted by the defendant two weeks later, although it was ultimately declined on 6 March 2009; 3. Within two weeks of the defendant's initial decision to decline liability, the plaintiff instructed solicitors to undertake investigations in relation to matters of diagnosis and assessment; 4. Proceedings were commenced by the plaintiff on 15 June 2009 to seek to overcome the defendant's decision to decline liability; 5. Thereafter, a tortuous procedural course was pursued, which led to the plaintiff being allocated a whole person impairment on 4 May 2016, permitting the plaintiff to bring a work injury damages claim.
Throughout that period, within two weeks of the defendant declining liability the plaintiff's solicitors were retained and they then represented him on the required procedural course, which was then marked by procedural impediments that caused delay. In that regard, the plaintiff's representatives acted properly, and as early as 21 August 2012, they placed the defendant on notice that the potential claim was in contemplation.
In reality, when account is taken of suspension and recommencement of time considerations as provided by s 151DA of the WC Act, the relevant delay was, in effect, 2 months outside the s 151D limitation period.
I am satisfied that those circumstances represent a sufficiently adequate and satisfactory explanation for the delay. The explanation for the delay incurred requires a lesser threshold in this instance, compared to where, as remarked upon in Itex Graphix Limited v Elliott [2002] NSWCA 104, (2002) 54 NSWLR 207, at [91], a deliberate and fully informed decision had been made so as to allow a statutory limitation period to expire.
In the present case, the evidence reveals that the plaintiff had not made a deliberate decision along those lines. Instead, he was guided by legal advice that was reasonable in the circumstances of a complicated legislative framework. A discretionary allowance should be made in the plaintiff's favour on that account as his conduct did not involve procedural default or dilatoriness, in the absence of significant prejudice: Smith v Grant [2006] NSWCA 244.

Whether claim of negligence is arguable

The work in which the plaintiff was engaged carried with it the foreseeable risk that, if the plaintiff was required to push and pull heavy weights, variously weighing between 4 - 5 to 20 tonnes over floor mounted tracks without mechanical assistance and without additional manual assistance, musculo-skeletal straining injuries could occur, and that described system of work is plainly capable of supporting a finding of breach of duty on the part of the employer.
If expert evidence was required to support that proposition then the plaintiff has supplied it in the form of the report of Neil Adams & Associates, dated 31 May 2018, and an earlier version of that report.
The discretion to extend time for filing of proceedings as is conferred by s 151D of the WC Act is a broad one that stands to be determined according to what is fair and just in the circumstances according to what the case requires: Itex Graphix Limited v Elliott [2002] NSWCA 104, (2002) 54 NSWLR 207, at [72].
The factual circumstances described in the preceding paragraphs entirely distinguish the present case from the circumstances of the decision in Gower v State of New South Wales [2018] NSWCA 132. In that case, at [149], leave to file proceedings out of time was refused because of what the Court considered to be the inherent weakness of that plaintiff's case, which was held to be a factor that was highly material to the exercise of the discretion to extend time. That is not the case here.

Whether a trial would cause unfairness/prejudice to defendant

In the consideration of whether the leave sought should be granted, the question of whether prejudice of a significant kind arises that would militate against a fair trial being had, is a paramount consideration: Itex Graphix Limited v Elliott [2002] NSWCA 104, (2002) 54 NSWLR 207, at [88]; Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, at 555.
In this case, the plaintiff reported the accident with sufficient promptness to put the defendant on its enquiry as to what liability investigations were required to seek to protect its rights and its ability to defend proceedings arising out of the subject incident. I draw that inference from the defendant's earlier decision to decline liability, followed by the later decision to make payments of compensation to and on behalf of the plaintiff. Absent other evidence, no significant prejudice arises.
I conclude that the defendant has not pointed to any actual or significant prejudice apart from the presumptive prejudice that ordinarily arises in contested litigation. In circumstances where the evidence adduced by the plaintiff leads to the conclusion that there is no significant prejudice, the defendant has not discharged its evidentiary onus to rebut that conclusion: Sydney City Council v Zegarac (1998) 43 NSWLR 195, at p 197; Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, at 547.

Disposition

I find that the plaintiff has satisfied the requisite elements for the exercise of the discretion sought pursuant to s 151D of the Act.

Costs

The plaintiff has succeeded in obtaining the orders sought. This gives rise to the consideration of the appropriate order for costs. The plaintiff's application was compelling, and on the authorities cited, this must have been evident to the defendant well before the application was due to be heard. The cross-examination of the plaintiff achieved nothing of benefit to the defendant in that regard. The parties recognised that the assessment of costs the plaintiff may recover in these proceedings will be governed by reference to the amount of damages the plaintiff might recover: T21.25 - T21.50. In those circumstances I consider that the question of costs should be determined by the trial judge once the final result of the proceedings becomes known.

Orders

I make the following orders: 1. Pursuant to s 151D of the Workers Compensation Act 1987, leave is granted to the plaintiff to commence proceedings against the defendant notwithstanding that more than 3 years have passed since the plaintiff's cause of action arose on 1 August 2008, such leave is extended to 23 June 2017, when the plaintiff's statement of claim was filed; 2. The costs of the motion are left to be determined by the trial judge after all other issues have been determined; 3. Liberty to apply on 3 days' notice if further or other orders are required.

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 2018

At a glance

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Judgment (12 paragraphs)

Parties

Cases Cited (7)

Cited By (1)