Ellis v Reko Pty Limited

District Court of NSW|2009-11-04|Before: Mr P

The applicant was born 12 January 1971 and is currently aged 38. On 3 March 2003 he was employed as a storeman in the defendant's premises at Lisarow in New South Wales. He was required to drive a forklift vehicle in the course of that employment in the defendant's warehouse.

On that day there was an accident involving the forklift being driven by Mr Ellis. His left arm was wedged by the steering wheel of the forklift. As a result he suffered a severe injury.

The applicant was paid Workers Compensation payments following and in respect of the injuries. Those payments (to June 2007) totalled $138,119.18. Further payments had been made thereafter. Evidence

The applicant relies on an affidavit sworn by him on 23 June 2009. There is no evidence from the defendant.
The applicant's affidavit sets out that he contacted his present solicitors on 26 April 2006 - in other words, after the expiration of the relevant time period. Thereafter, the Motor Accident Injury Claim Form was sent to the defendant on 28 June 2006.
There was further correspondence addressed to the defendant by the defendant's solicitors after 30 April 2007. It appears that there were investigations as to whether the forklift truck was registered or not and other investigation which occurred after that time.

Counsel for the defendant submits that the evidence does not provide a full and satisfactory explanation for the delay for the period from the time of the accident until April 2006.

For the purpose of these proceedings, the defendant concedes that the plaintiff's claim was diligently prosecuted after April 2006. The annexures to the affidavit set out correspondence and evidence of communications between the solicitors contacted by Mr Ellis and the defendant's solicitors.

Paragraph 12 of the affidavit asserts (and is not denied) that the relevant Workers Compensation Insurer is also the relevant insurer of the forklift motor vehicle. Further, that the same policy is relevant to both sets of claims.

The applicant bears the onus of satisfying the court that grounds exist for the exercise of discretion in his favour. The applicant also has the onus of raising any consideration which might tell against the exercise of the discretion - Brisbane South Regional Health Authority v Taylor [1996] HCA 25 (1996); 186 CLR 541.
The delay resulting from the commencement of proceedings after a limitation period can give rise to a presumption of prejudice. Where there is no significant prejudice to a potential defendant there is no reason why the discretion to extend time should not be exercised in favour of the applicant - Holt v Wynter [2000] NSW CA 143; [2000] 49 NSWLR 128.

The issue of what is required for an explanation to be "full" was examined in Mancini v Thompson [2002] NSWCA 38 per Rolfe AJA. The judgment refers to "…the necessity to set out fully the conduct including the actions, knowledge and belief of the claimant." Various authorities support the proposition that the explanations must be detailed so that the court can then determine whether the explanation is satisfactory - Laidlaw & Anor v Touma 2002 NSWCA190.
The focus of the procedure in determining the concept of a satisfactory explanation is upon justifying it rather than excusing it - per Russo v Aiello [2003] HCA 53 per Gleeson CJ at [7]; (2003) 215 CLR 643; Smith v Grant [2006] NSW CA 244 at [55]. The matter is then determined by looking at whether the conduct is justified by reference to the way in which a reasonable person in the position of the applicant could have been expected to behave.

Claim where related workers compensation proceedings 21. The requirement for a full and satisfactory explanation by an applicant for leave who had also commenced workers compensation proceedings was discussed in Figliuzzi v Yonan [2005] NSWCA 290. There the applicant had a belief that her case was governed by the Workers Compensation legislation and not a claim for damages under the Motor Accidents Act. That applicant worked as a clerical employee within a Legal Aid office. She had frequent contact with lawyers and other professionals. Her belief as to her entitlement to workers compensation (only) was reinforced when, after her accident on the way to work, the relevant supervising officer required her to complete only a workers compensation claim form. The supervisor did not inform the applicant that she could or should bring a claim for damages under the Motor Accidents Act. By majority the Court of Appeal held that the application for leave to commence a claim under the Motor Accidents Act should be refused.

Submissions 22. Mr Goodridge submits that Figliuzzi v Yonan should be distinguished because of the specialist knowledge of the applicant in that case. He submits that that is not the case here because Mr Ellis was an ordinary employee. Looked at from his perspective - on a normative basis - the applicant was entitled to assume that his claim was fully brought to the notification of the employer and owner of the forklift by bringing his workers compensation claim. The issues raised - including the nature of the vehicle and of the potential claim generally - were of an esoteric nature the details of which would not be known to a person in the position of the applicant. 23. Mr Goodridge also submits that there could be no prejudice to the defendant as, in effect, that person or entity was the same for both the workers compensation proceedings and for a potential negligence claim. He submits that the defendant has not satisfied the evidentiary onus referred to in Sauer v Allianz Australia Insurance Ltd [2006] NSW CA 364.

Mr Rickard reiterates that there is no full and satisfactory account of the delay. He argues that that burden is not discharged by an applicant for workers compensation simply relying on a notification of an accident to bring all relevant matters to the attention of a defendant. He stresses that I cannot make a determination of any issues of prejudice until the full and satisfactory explanation is provided.

Mr Rickard also submits that, notwithstanding that coincidence of identity of the insurers, the defendant had no knowledge that the applicant was going to bring a claim in negligence until after the limitation period had expired. In those circumstances, Mr Rickard submits that the defendant was prejudiced in that it did not authorise any investigations of the circumstances of the accident - for example, to determine if there was or was not negligence.

In response to the submission that there is no evidence of prejudice, Mr Rickard relies on presumptive prejudice and refers to the difficulties there might be in determining issues of the ownership and state of repair of the forklift to determine whether what had happened was indicative of negligence or whether it was a 'simple' accident compensable by the workers compensation entitlements the applicant received.

In response to the submission that any reasonable person in the position of the defendant would have known that the accident should have been investigated, Mr Rickard submits that the potential cause of action in negligence is a very different matter from that of a workers compensation claim

Consideration 28. The clear policy and structure of the legislation is to require an applicant to set out fully and satisfactorily why the delay period has expired without the proceedings being commenced. Then and only then does the court hearing the application need to assess the competing prejudice and then to consider whether the threshold and related matters set out in s 109(3) (b) have been met. 29. However, for the purposes of this particular application, there is limited evidence which is effectively contained to one area only. There are no details of the applicant's 'actions, knowledge and belief' which constitute a 'full' explanation let alone what his position was in the terms referred to by Tobias JA in Figliuzzi at [93]. There are, for example, no details of what was his state of belief, how and why he came to that state of belief and what actions he took - other than his notification of the workers compensation claim to the employer.

In those circumstances the court cannot determine whether the explanation is satisfactory from the standpoint of a reasonable person in the position of the applicant. Taken at its highest, the applicant is effectively saying 'I didn't know I had a motor vehicle claim. I told the insurers that there had been an accident and it involved a vehicle. That should have been enough to inform them and put the onus on them to investigate whether I was bringing a claim for negligence under the Motor Accidents Act'. I do not consider that that fact alone constitutes a full and satisfactory explanation for the delay. The fact of the notification is but one factor in determining the issue of prejudice. It cannot be determinative. In any event for the reasons given I do not need to consider the question of prejudice as the applicant has not discharged the onus on him on all the evidence.

Accordingly I propose to dismiss the application. Orders

The Notice of Motion is dismissed.
The plaintiff is to pay the defendant's costs.

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.

CITATION: Ellis v Reko Pty Limited [2009] NSWDC 288

Brisbane South Regional Health Authority v Taylor [1996] HCA 25 (1996); 186 CLR 541 Holt v Wynter [2000] NSW CA 143; [2000] 49 NSWLR 128 Mancini v Thompson [2002] NSWCA 38 CASES CITED: Laidlaw & Anor v Touma 2002 NSWCA 190 Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 Smith v Grant [2006] NSWCA 244 Figliuzzi v Yonan [2005] NSWCA 290 Sauer v Allianz Australia Insurance Ltd [2006] NSW CA 364

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