De Roover v Northern Sydney Local Health District

Category: Procedural rulings

Parties: Barbara De Roover (Plaintiff)
Northern Sydney Local Health District (Defendant)

Representation: Counsel:
L Morgan (Plaintiff)
J Krieg (Defendant)
Solicitors:
Withstand Lawyers (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

File Number(s): 2025/00038128

JUDGMENT – ex tempore

1. Before the Court for determination is an Amended Notice of Motion filed on 21 May 2025 by the plaintiff, seeking leave under s 151D of the Workers Compensation Act 1987 (NSW) ("the Act") to commence proceedings more than three years after the date on which an alleged injury was received.

2. Under s 151D(2) of the Act, the Court may grant leave to a plaintiff to commence proceedings in respect of an injury more than three years after the date on which the injury was received.

3. In support of the application, the plaintiff read the affidavits of:

(a) Nayven Taouk dated 7 May 2025; and (b) The plaintiff dated 8 May 2025.

4. No affidavits were relied upon and read by the defendant. The defendant tendered a letter dated 21 November 2018 from the plaintiff’s then solicitors to the defendant health authority on the application, which indicated that the plaintiff sought a particular secondment in her work and stated that if it was not granted, it was likely that the plaintiff’s health condition would deteriorate, and in those circumstances, she would make a worker’s compensation claim.

5. In addition, the plaintiff gave oral evidence and was cross‑examined with leave by counsel for the defendant. In that evidence, relevantly, the plaintiff:

(a) Believed that she had been given advice about worker’s compensation claims by her psychologist earlier than the date of the letter; (b) Said she was given advice to make a worker’s compensation claim by a doctor soon after; (c) Accepted that her then solicitors in the light of the letter, gave general advice about worker’s compensation and the processes involved; (d) Was given advice around receiving a report from a Dr Malik; and (e) Gave evidence about making a decision to delay accepting an offer from the employer in relation to a 19% whole of person impairment assessment for a period in order to investigate potentially higher worker’s compensation benefits.

6. The Court has had the benefit of written and oral submissions from both of the parties.

7. There are numerous appellate authorities relating to the principles applicable in an application of this nature. In general terms, the Court notes the decision of McColl JA in Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 where her Honour noted the broad discretion in s 151D(2) of the Act and the fact that no specific criteria in relation to determining an application were set out. Meagher JA and Barrett JA agreed with McColl JA.

8. The appellate authorities over the years have stated a number of relevant principles. Importantly, in Gower v State of New South Wales [2018] NSWCA 132, Basten JA, whilst disagreeing with the result but not in relation to the general principles applicable, stated in paragraph 4 that the applicant needed to establish three propositions:

(a) That there was a sufficient and acceptable explanation for each period of delay; (b) The plaintiff had a reasonably arguable claim of negligence; and (c) The conduct of the trial ‑ in that case more than 12 years after the injury was suffered – “would not cause [the defendant] significant prejudice, so as to render the trial unfair”.

9. In Stein v Ryden [2022] NSWCA 212, the Court of Appeal held that the trial judge in that case had erred by putting too much emphasis on the lack of direct evidence from the solicitors who had carriage of the applicant's matter. Their Honours noted that it was the applicant's explanation for the delay that was the central focus of the inquiry: at [30]. The applicant in that case gave unchallenged evidence that she had no knowledge or awareness at any relevant time of any limitation period requirements and that she relied upon her solicitors to progress her claim: at [40].

10. Their Honours held in Stein that the plaintiff there had provided a full and satisfactory explanation for the delay and the explanation was sufficiently full to enable an evaluation to be made of whether it was satisfactory in the sense that a reasonable person in the position of the applicant, being one who had no knowledge of the limitation periods, would have been justified in experiencing the same delay: at [40], [48]-[49].

11. Those principles were expanded in the Court of Appeal in Dahdah v Witte [2023] NSWCA 304. There, White JA gave the primary judgment (Mitchelmore JA and Griffiths AJA agreed). Although that decision was in the context of the motor accidents legislation, essentially the same principles apply. Their Honours held that a full explanation is one if it provides a complete account of the actions, knowledge and belief or beliefs of the claimant from the date of the accident until the date of providing the explanation, but it would be full even though it does not recount in perfect detail every moment that has elapsed within the period: at [47]-[49].

12. Here, the plaintiff has given detailed evidence in her affidavit of her lack of knowledge of the relevant whole person impairment principles under the Workers Compensation Act (see affidavit paragraph 58) which led to her seeking advice in January 2024. In paragraph 69, she notes that she acted on the advice of her solicitors in attending a medical examination and in giving instructions to commence a work injury damages claim on her behalf.

13. Their Honours in Dahdah noted that an explanation for a delay will be a satisfactory explanation if at least one hypothetical person within a spectrum of reasonable persons would have experienced the same delay. Their Honours focused on reasonable persons in the position of the plaintiff. It must be recalled that the medical evidence before me establishes that the plaintiff had a psychiatric condition at relevant times after November 2018: at [58]-[68].

14. Mr Krieg, who appears for the defendant, focused on the oral evidence of the plaintiff that she probably may have received legal advice at some earlier time than November 2018 in relation to worker’s compensation rights. It is unclear what that advice was and there is no evidence before me as to it. The defendant also focused on Exhibit 1 and the likelihood, which the plaintiff accepted, of her having received some advice about the worker’s compensation processes in November 2018.

15. I accept that that is likely from the evidence in the light of Exhibit 1, but there is nothing to suggest, particularly in the light of paragraph 58 of the plaintiff's affidavit, that that advice went beyond general advice in the context of a secondment and the potential, I think it more likely than not, of weekly compensation payments not a damages claim.

16. Emphasis was also placed on a conscious decision of the plaintiff to delay accepting the defendant's 19% whole person impairment offer in January 2024 until she obtained her own medical report.

17. In particular, some weight was placed on the decision of the Court of Appeal in Walters v Cross Country Fuels Pty Ltd [2009] NSWCA 10 at [40], relying on Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 at 225. That case focused on a deliberate decision of a plaintiff not to bring common law proceedings within the limitation period and to pursue statutory rights, thus allowing the limitation period to expire. In the present case, the limitation period had already expired by the time the plaintiff received her initial legal advice in January 2024. Mr Krieg states that the same principle should apply.

18. In my view, the explanation given by the plaintiff which effectively was to wait to see if the plaintiff reached a higher percentage which would give her substantially better benefits is a reasonable one in the circumstances and was a satisfactory explanation in the circumstances for the delay which many people would have taken and was subject to the advice of her solicitors.

19. It seems to be ill in the mouth of the defendant to complain that the plaintiff waited to get advice on the very matter which may have avoided the current proceedings and to then raise the delay which ultimately gave rise subsequently to a complying agreement. In my view, that matter is not determinative of this application.

20. It is accepted by the parties that the date of injury is 30 November 2018, and thus the limitation period for a personal injury claim expired on 30 November 2021. The present proceedings were commenced on 31 January 2025. There is an issue about the proper interpretation of s 151DA of the Act. The defendant claims that the period following the service of the pre‑filing statement should be excluded because it is only relevant if that occurs within the limitation period. That is not clear to me to be the case on the face of the legislation, and it would be in my opinion adding a gloss to the legislation.

21. In my view, the issue is not significant in substance. The difference between the parties as to the additional delay, is of either three years or two and a half years. However, the Court takes into account the whole period from the day of the injury.

22. It is important to give some background to the matter. The allegation in the pleadings is for breach of the employment contract and for negligence by the defendant in relation to not providing a safe system of work for the plaintiff in her role as a nursing manager at a hospital controlled by the defendant health authority. The background facts appear to be as follows:

(a) The plaintiff was born in December 1966 and is thus 58 years old; (b) Prior to 1988, she completed a degree in nursing; (c) She started as a registered nurse at Gladesville Hospital in 1988; (d) In 2013, she commenced at Macquarie Hospital in a senior nursing role; (e) From 2014, she made allegations of bullying and harassment by the director of nursing; (f) The plaintiff first had time off work in relation to the current matter in November 2018; (g) She made a worker’s compensation claim and had various periods of return to work. Initially, in March 2019, her worker’s compensation was provisionally approved and, soon after, some worker’s compensation payments were made, although earlier she had been given some approval for psychological assistance; (h) She had various periods back at work, but her condition deteriorated and in October 2023, she had her last day physically at work; (i) She was asked to see a Dr Malik, by the insurer for the defendant, and a report was prepared dated 11 December 2023; (j) In January 2024, she was made an offer of a finding of 19% whole person impairment; (k) Her complaint in relation to what occurred at her work was investigated and the plaintiff claims that some of her complaints were upheld.

23. I have mentioned the letter from the insurer with an offer amounting to acceptance of a 19% whole person impairment assessment in January 2024. The plaintiff went to see a solicitor for advice as she did not understand the offer, and thereafter, she asserts she left her claim to her solicitor. I have already mentioned the decision to delay accepting the offer. A complying agreement was entered with a 19% whole person impairment on 14 June 2024.

24. Advice was given to the plaintiff by her solicitors in June 2024, including to obtain an expert report on liability. On 25 September 2024, the insurer denied liability. The expert report was obtained by the plaintiff’s solicitors in October 2024, and on 30 October 2024, a pre‑filing statement was served. On 30 January 2025, the Statement of Claim was filed.

25. In all matters of this nature where an extension is sought, there is presumptive prejudice to the defendant. The onus rests on the plaintiff to provide a full and satisfactory explanation in relation to the delay. An evidential onus then goes to the defendant to show any degree of actual as opposed to presumptive prejudice by an extension. However, at the end of the day, ultimately the onus rests on the plaintiff to establish that it is proper that the extension sought be granted.

26. Various statements of principle have been made by the courts. It is clear that extraordinary or special circumstances need not be established: see Salido v Nominal Defendant (1993) 32 NSWLR 524 per Gleeson CJ at 532. The section contains a general discretion which must be exercised in a judicial manner: see Gleeson CJ in Salido also at 532. The fact that the defendant will suffer some forensic disadvantage through the extension is not of itself decisive although it is a relevant consideration.

27. The primary rule is that each case must be determined on its own facts. The authorities establish that the general question to be asked when considering whether to exercise the broad discretion in s 151D(2) in favour of an applicant, is what is fair and just in the circumstances, or alternatively, what the justice of the case requires: see Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 per Ipp AJA at 224 (with whom Spigelman CJ and Sheller JA agreed).

28. I have dealt with the question of the plaintiff’s explanation. In my view, the explanation is adequate. In Itek, Ipp AJA said it would be a powerful factor against the grant of leave, and ordinarily, it would be difficult to provide an explanation where there is a deliberate and fully informed decision to allow a statutory limitation period to expire. I have already referred to that above. However, in my view, that is a little different to the position here where the period had already expired by 2024 although I accept Mr Krieg's submission that it is relevant.

29. However, there is a cogent explanation for the delay here as I have indicated. In Howley, McColl JA said it was important to take into account Ipp AJA's statement in Itek Graphix that a failure to give a satisfactory explanation will often not be decisive and that ordinarily the issue of prejudice will be paramount: at [49]-[52].

30. There is no evidence of actual prejudice to the defendant if an extension is granted in the present case. The High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 550 indicated that normally approval should be refused if the effect of granting the extension would be to result in significant prejudice to the defendant, and that meant prejudice such as would make the chances of a fair trial unlikely: see The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 at [96].

31. As I indicated, in the present case there is no evidence of actual prejudice but there is presumptive prejudice. However, the facts show on the affidavit of the plaintiff that she had made complaints in relation to the conduct of the director of nursing in question over many years. Accordingly, the issues relating to that person's conduct had been fairly and squarely brought to the attention of the defendant authority for some time.

32. Also, due to the claim made in 2018, the defendant would have been aware of the plaintiff's condition and there is evidence that these matters were investigated in the subsequent years. Accordingly, it seems that at all times the defendant was on notice of the plaintiff's complaints about the director and the effect on her in her work capacity. It is not the case, like in some cases, where the allegation of negligence is first raised in relation to conduct or an event many years after when records may have been destroyed.

33. In Gower, which I have mentioned, the weakness of the claim was a factor although it is not enough by itself to deny leave. That case involved a weak claim by the plaintiff.

34. Turning back to the three matters referred to by Basten JA in Gower at [4]:

(a) In my view, there is a sufficient and acceptable explanation for the delay by the plaintiff in the present case; (b) On the basis of the plaintiff's affidavit, there is an arguable claim in negligence against the authority. Whether it will ultimately be accepted remains to be seen, but on the basis of the facts asserted, it is reasonably arguable; and (c) Would the trial cause significant prejudice to the State so as to render the trial unfair? In my view, having regard to the fact that issues relating to the employment of the plaintiff have been within the attention of the defendant authority throughout an extensive period, and where there is no actual prejudice relied on, the matter continuing would not cause the defendant significant prejudice so as to render a trial unfair.

35. That then brings me to the ultimate discretion which the Court has to exercise as to the leave sought. Having regard to the matters I have referred to, there is nothing that has been put before me which in my view would render the general discretion referred to by McColl JA in the Howley case as being appropriate to decide against the plaintiff applicant. In this case, the period of delay whilst not small is not extensive. It is nothing like Gower, and it is nothing like many cases where extensive periods of delay are involved.

36. Further, complaints in relation to the alleged conduct of the director of nursing, as I indicated, occurred over a lengthy period and it is likely that detailed records would be kept of the different allegations that have been made.

37. In my view, exercising the discretion which I have, the plaintiff has satisfied the onus which rests upon her to support the leave which is sought to be exercised by the Court in her favour.

[His Honour then heard submissions on the issue of costs.]

38. An issue has arisen in relation to the appropriate order for costs which should be made in relation to the Amended Notice of Motion before the Court. The Court has a general discretion as to costs under s 98 of the Civil Procedure Act 2005 (NSW) but High Court authority has made it clear that that discretion is a discretion which should be exercised judicially.

39. The plaintiff asserts that in the context of the fact that the defendant has had the application for an extensive period of time and has taken an active decision to oppose the leave applied for and has cross‑examined the plaintiff, that the plaintiff should have her costs of the application.

40. The defendant asserts that the limitation period has expired and that it was necessary for the plaintiff to seek leave. Although the defendant has been unsuccessful on the application, it is an indulgence which is being sought by the plaintiff. The defendant should therefore have its costs of the application even though it was the unsuccessful party.

41. In my view, there is some force in both arguments. However, here, in a period of not excessive delay, the defendant did decide to take a position of active opposition. Nevertheless, the plaintiff did need to seek leave, and it is not a matter that can be dealt with by consent. It is a matter that the Court has to consider. The plaintiff has been successful, and it was necessary for the plaintiff to give oral evidence and for helpful submissions to be provided to the Court.

42. Taking into account all the factors which I have indicated, in my view, the plaintiff should not be at risk in the light of the defendant's failure in opposing leave of paying the costs of the application. The appropriate orders to make are as follows.

In relation to the Amended Notice of Motion filed on 21 May 2025:

1. Order in accordance with paragraph 1.
2. The costs of the Notice of Motion are to be the plaintiff’s costs in the cause.
3. The proceedings are listed before the Judicial Registrar for directions on 20 August 2025 at 9:30am.

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