Donoso v Blacktown City Council [2020] NSWDC 656 | Case summary

District Court of NSW|2020-10-30|Before: Mr J

The applicant's submissions

Counsel for the applicant focussed upon the developing assessment of the applicant's medical condition. He referred the Court to the sequence of events by which the applicant obtained Whole Person Impairment assessments, initially, by Dr Teychenne, but then ultimately from other specialists. This culminated in an agreed Whole Person Impairment of 47% in June 2019.
Thereafter, in late September 2019, a report relevant to liability was obtained from an ergonomist, Ms Todd, and thereafter, the report of a vocational assessor, Dr Ting, which was relevant to a claim for damages for economic loss and future loss of earning capacity, which was also obtained in late September 2019. Within a month of receiving these reports, the applicant served notice of his claim. This was all fairly routine.
Further, the applicant took the step of notifying the respondent even before the expiry of the limitation period that a work injury damages claim and lump sum claim might be made. This expedient was identified as something that a worker might do in anticipation and mitigation of an employer's later complaint of prejudice flowing from a lack of notice (Gower v State of New South Wales per White JA at [188]).

The respondent's submissions

The respondent did not contest that it had not put liability in issue in its Pre-Filing Statement. Nor did it contest that it could not establish any actual prejudice; though it maintained that some prejudice could be presumed. Its sole point was that the applicant had not sufficiently explained in paragraphs 5-6 of his affidavit the delay from 13 July 2016, when the applicant withdrew the representation of NSW Compensation Lawyers until 20 April 2017, and when that firm was re-engaged, being a period of virtually 9 months. The respondent cited authority for the proposition that it was necessary for the applicant, on applications of this kind, to provide a "sufficient" explanation for delay (Holt v Wynter (2000) 49 NSWLR 128 per Sheller JA at [118]).
The respondent submitted that although the applicant had implicitly criticised the firm which was, at that point, representing him for not having done much for him and advising him to wait for about a year to proceed, that evidence was self-serving and unreliable. The applicant had waived privilege over communications to that effect, but had not produced any written advice to confirm this improbable recollection.

The applicant's submissions in reply

The applicant submitted that it could be clearly inferred that the period of delay relied upon was explicable by the circumstance that the applicant's medical condition had not yet stabilised, or, put another way, that the applicant had reached the stage of 'maximum medical improvement'.
There was much activity to show that in the period alluded to by the respondent, the applicant's medical condition had not yet stabilised.
In effect, it was submitted that whatever was the content of the advice supplied by the applicant's lawyers during the period of delay was immaterial: he was in no position to conclude that he could bring a work injury damages claim and lump sum claim until November 2017, or even later, when he first obtained Dr Teychenne's opinion.

CONSIDERATION

The proceeding commenced just over a year after the expiry of the limitation period. The applicant's Counsel identified the period of delay as being in the order of 6 or 7 months. It is not an overly substantial period of delay.
The main considerations in the application, apparent from Gower, concern whether adequate explanation has been given for the delay (including whether the limitation period has been deliberately run down), the apparent strength of the case, and the extent of actual prejudice to the respondent (some prejudice being presumed). It is trite that the applicant carries the onus of proving the entitlement for leave.
As to the adequacy of explanation, I note that unlike the terminology deployed under ss 72 & 73 of the Motor Accidents Compensation Act 1999 (NSW) for claims brought outside the limitation period, where the relevant provision requires a 'full and satisfactory' explanation, which I interpolate imports a standard of some stringency, there is no similar express provision under s 151D of the Act. Plainly, though, the authorities in this area ordinarily require an applicant, who is requesting the Court to exercise a discretion in his or her favour, to explain why the proceeding was brought late.
In my view, it is selective to isolate only paragraphs 5-6 of the applicant's affidavit as representing the entirety of the explanation. Although there is, as the respondent's Counsel observes, a lacuna in the applicant's affidavit, and although some doubt may attend the veracity of his recollections of what had occurred up to four years ago with his former solicitors, that circumstance does not undermine his application. The submission neglects the totality of the overall circumstances, as recounted in Mr Gabriel's affidavit, including his multiple attendances upon a range of persons in the period of delay identified by the respondent in order to assess and treat him, being: a physiotherapist, Ms Lorraine (in October 2016), an orthopaedic surgeon, Dr Biggs (October and November 2016), another orthopaedic surgeon, Dr Gupta (September and October 2016, and January and February 2017), a pain rehabilitation specialist, Dr Ho (November and December 2016, and February and March 2017). There is force in the applicant's submission that it was not until the applicant saw Dr Teychenne in November 2017 then reported in 2018, when his Whole Person Impairment was first assessed, that a person in this applicant's position could practicably have formed a view that a work injury damages claim and lump sum claim was viable. There was no deliberative conduct in running down the limitation period.
Once that is accepted, then I also accept the submissions of Counsel for the applicant that there was no appreciable delay in the progression of the investigation of the applicant's potential claim by his re-engaged solicitors from 20 April 2017, and no submission was made to the contrary.
As to the strength of the claim, in relation to liability, as indicated, the respondent did not contest that issue in its Pre-Filing Statement. As to the quantum of the claim, the report of Dr Ting, that was obtained in late September 2019, relevantly provided a platform for the claim of economic loss and future loss of earning capacity.
Counsel for the respondent disclaimed any suggestion of actual prejudice. Liability does not appear to be in issue. Further, as Counsel for the applicant noted, the respondent has long been on notice of the applicant's medical history since the accident in 2016, including extensive radiological investigations back to a point proximate in time to when the work injury occurred, which suggests that if any prejudice is presumed, it is only slight and would not, at any rate, preclude the respondent from receiving a fair trial.
I am persuaded in the circumstances that leave should be granted.

ORDERS

I order that: 1. Pursuant to s 151D(2) of the Workers Compensation Act 1987 (NSW), the plaintiff be granted leave to commence the proceeding, nunc pro tunc, as from 27 April 2020. 2. Costs of the Notice of Notion filed on 18 June 2020 are to be costs in the cause.
I also direct the parties to attend a case management conference before the Judicial Registrar on 6 November 2020.

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: 30 October 2020

APPLICABLE PRINCIPLES TO APPLICATIONS OF THIS KIND

In Gower v State of New South Wales [2018] NSWCA 132, White JA (who delivered the leading judgment) said (at [186]) that the limits of the discretion to extend limitations periods were marked by the subject matter, scope and purpose of the relevant legislation. To that extent, recourse to earlier authorities concerning applications to extend limitations periods under different legislative regimes have to be treated with caution.
More significantly, His Honour placed an important qualification upon the guidance that may be offered in the exercise the discretion from the general principles in one of those earlier authorities, Itex Graphix Pty Ltd v Elliott [2002] NSWCA 104. In Itex Graphix, the Court of Appeal had (at [87]) approved the formulation that the relevant test was what the "justice of the case" required. In Gower, White JA noted (at [186]), in terms that have salience to the applicant, that the operation of the legislative regime, and particularly the operation of section 151H of the Act, is antipathetic to the general rationales for limitation period identified in the High Court's decision in Brisbane South Regional Health Authority v Taylor 1996) 186 CLR 541. This is so because the nature of an injury may be such that no proceeding can be brought for years after the event because the degree of permanent impairment cannot be ascertained. White JA (at [186]-[187]) said that where a statute imposes barriers against the bringing of claims that result in delay, leading to a loss of evidence, but permits leave to be given for the commencement of proceeding, the proper exercise of discretion is likely to be highly influenced by whether the claim is apparently meritorious and the degree of prejudice to the defendant. It is not imperative to refuse an application to extend the limitation period if the delay has resulted, or is presumed to have resulted, in the loss of evidence that affects the chance of a fair trial. That may, His Honour said, be the consequence in a particular case, but it is not an inevitable rule.
Simpson AJA generally agreed with White JA's analysis in this regard (Basten JA was in the minority on this point). Her Honour emphasised (at [228]-[230]), that on the facts in that case, it was inapposite to say that the applicant had deliberately allowed the limitation period to expire when, due to the absence of evidence as to the relevant degree of Whole Permanent Impairment, the applicant could not realistically commence proceedings within the limitation period.
The observations of the Court of Appeal in Gower represent, with respect, the most recent exposition of the principles by the Court of Appeal that should guide the exercise of my discretion; and are particularly salient when it comes to my consideration of the adequacy of the explanation for delay. It remains the position that the other important remaining considerations concern whether there is any actual prejudice, beyond presumptive prejudice, to the defendant and the merits, such as they appear, of the applicant's case.

Donoso v Blacktown City Council

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