Feltham v Workers Compensation Nominal Insurer

Judgment 1On 9 May 2012 the plaintiff, Ms Heather Feltham, filed a statement of claim in this Court. The first six paragraphs of that statement of claim are these: "1. At all material times the company, Theo's Liquor Pty Ltd (Karlaun Pty Ltd) was a company duly incorporated and liable to be sued in and by its said corporate name and style. 2. At all such times the defendant employer operated a Liquor Store trading under the name Theo's Liquor at The Palm Hotel Motel at Chullora in the State of New South Wales. 3. At all such times the plaintiff employee was employed by the defendant employer as a housemaid and cleaner. 4. It was a term of the contract of employment between the plaintiff employee and the defendant employer or it was a duty of the defendant employer to take all reasonable precautions for the safety of the plaintiff employee whilst she was engaged upon her work. 4A. During the course of her employment with the defendant employer, from its commencement in 1977 to 26 October 2001, the plaintiff employee was required to: (a) Lift and carry, in her arms and over her shoulders, large bundles of linen, which were heavy, consisting of towels, which were wet, and sheets, all wrapped up in one sheet. (b) Carry these bundles of linen from the rooms, on her own, along corridors and down stairs to the laundry area on a number of occasions each day. (c) Move beds and mattresses which did not have legs and were propped up with telephone books. 5. On 26 October 2001 the plaintiff employee was carrying out the duties in her employment with the defendant employer at her place of employment and whilst in the laundry folding sheets she injured her right and left arm [sic]. 6. As the result of the nature and conditions of her employment as described above and the injury on 26 October 2001 the plaintiff employee suffered serious body [sic] injury and as a result of the above injury the plaintiff employee was unable to function in her normal manner as a person and in 2006 she suffered psychological injury." The following paragraph numbered 7 gives particulars of injury. Paragraph 8 contains a formal averment that the plaintiff's injuries were caused by the negligence of the defendant employer and par 9 provides particulars of negligence numbered from (a) to (ff). 2On 24 July 2012, Messrs DLA Piper filed a defence to the statement of claim in the name of Karlaun Pty Limited. The plea numbered 5 in that defence is this: "Further and in the alternative, the Defendant relies upon s 151D of the Workers Compensation Act 1987 in answer to the whole of the Statement of claim." 3On 3 September 2012, the plaintiff filed a notice of motion seeking leave to continue the proceedings against the defendant pursuant to s 151D of the Workers Compensation Act 1987 (incorrectly pleaded as 1997) and pursuant to the Court's "inherent powers", the exact nature of which is completely beyond me and beyond any submission by the plaintiff. It is that notice of motion which is currently before me. The notice of motion was listed for hearing with an estimate of two days. It came before me on Thursday 15 August 2013. It continued on the following day as well as on 21 and 22 August and the submissions finished this afternoon at 12.30pm. 4The first thing to note is that Karlaun Pty Limited and Theo's Liquor Pty Limited were completely separate companies. The plaintiff acknowledged that when she obtained leave from me to strike out of the first paragraph of the statement of claim the matter "Theo's Liquor Pty Limited" and the brackets around Karlaun Pty Limited. It then transpired that Karlaun Pty Limited had been de-registered on 25 July 2012, the day after Messrs DLA Piper filed a defence on its behalf. After skirmishing between the parties, it was agreed that the name of the defendant be changed to "Workers Compensation Nominal Insurer on behalf of Karlaun Pty Limited (de-registered)". 5It then transpired that Karlaun Pty Limited had not employed the plaintiff from some time in 1997 until 26 October 2001 but from 9 May 2000 until 26 October 2001. The Palms Hotel Motel at Chullora was owned prior to 9 May 2000 by Premium Wine Company Pty Ltd, which conveyed the real property for the premises known as 185 Hume Highway, Chullora and 167 Hume Highway, Chullora to Karlaun Pty Ltd together with the business conducted at The Palms Hotel Motel. It would appear that on 9 May 2000 a pre-existing contract of employment between the plaintiff and Premium Wine Company Pty Ltd was novated to Karlaun Pty Ltd. That led to the plaintiff's seeking leave to amend par 4a of the statement of claim to allege a period of employment between 9 May 2000 and 26 October 2001. Despite the defendant's vigorous objection, I allowed that amendment as it was common ground that the plaintiff was in fact only employed by Karlaun Pty Ltd from 9 May 2000, and the plaintiff could not validly assert an injury in the course of her employment with Karlaun Pty Ltd when she was not so employed. 6The defendant, by its counsel, complained bitterly of the amendment because it was thought to interfere with such rights as the defendant might have because, initially, the plaintiff was alleging the "nature and conditions of her employment" between some time in 1997 and 26 October 2001. However, the fact remains that it could not stay in par 4A of the statement of claim when the reality was that the plaintiff only commenced working for Karlaun Pty Ltd on 9 May 2000. 7The first submission made by the plaintiff was an extremely brave one. The first submission made by the plaintiff, through her counsel, was that the leave which she was seeking was otiose because the three year limitation period prescribed by s 151D of the Workers Compensation Act 1987 ('the 1987 Act') had not yet expired. The plaintiff's submission was that a complying agreement pursuant to s 66A of the 1987 Act was only made in November 2010 and therefore that the plaintiff's cause of action only accrued in November 2010 and that three years since that date had not yet expired. 8Counsel for the plaintiff relied upon a decision of Adamson J in Opoku v P & M Quality Smallgoods Pty Limited & Ors [2012] NSWSC 478. At the commencement of [18], her Honour described the plaintiff's cause of action thus: "The plaintiff was about to finish his nightshift on 30 April/1 May 2004. He was standing near the conveyor belt when he noticed a piece of meat on the conveyor. He endeavoured to dislodge the piece of meat with water from the hose. However, as he did so, he slipped on the floor and the fourth finger of his left, non-dominant, hand was injured when it became caught at the junction between the conveyor belt and one of the rods supporting the conveyor apparatus." At [61] her Honour said this: "All defendants pleaded that the plaintiff's claims against them was statute-barred since they were brought well outside the three year limitation period. There was apparent force in this defence; the accident occurred on 1 May 2004 and the plaintiff did not bring proceedings against P & M and HUT until 17 April 2008 when he filed a statement of claim in the District Court or against Kaybron 6 until 16 February 2009." Kaybron 6 was in fact Kaybron No.6 Pty Limited and was the employer of the plaintiff in that action. At [62], her Honour said this: "By reason of s 151H of the [1987 Act], the plaintiff could not bring a claim for damages in negligence against his employer unless and until he had met the threshold requirement that he suffer a permanent impairment of at least 15 percent, which was a matter that needed to be assessed. This assessment was not resolved until October 2008 (by a Complying Agreement under s 66A of the [1987 Act] which, curiously, identifies the plaintiff's employer as "Primo Smallgoods"). Accordingly, the cause of action against the plaintiff's employer did not accrue until that date. The plaintiff's claim against Kaybron 6 was brought within time because it was brought within three years of the assessment of his permanent impairment, being the date on which his cause of action against Kaybron 6 accrued." 9When I was referred to this precedent by learned counsel for the plaintiff, I expressed a view that her Honour's views were unorthodox. S 151D(2) of the 1987 Act is in the following terms: "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." Section 151D(2) does not speak of the date of the accrual of the cause of action. It speaks of the date of the injury received by the worker in respect of which the worker is claiming damages as well as having claimed compensation. Here, that is, in the current case, there is no dispute that the plaintiff reported an injury occurring to her on 26 October 2001 and there is no dispute that the defendant paid workers compensation to the plaintiff from that date at least until 24 June 2009, and lump sum compensation has, in addition, been paid after that date. 10There was no appeal from the decision of Adamson J. Considering that the plaintiff was largely unsuccessful in his claim, one can understand why that was the case. Her Honour did not accept the plaintiff in that case as a witness of truth. Her Honour accepted that the plaintiff sustained an injury to a finger on 1 May 2004, but her Honour was satisfied that he had regained his earning capacity by 23 August 2004, a matter of some four months incapacity. Her Honour also found that the plaintiff in that case had been overpaid workers compensation and did not accept that the plaintiff, as a result of the injury to his finger, sustained pain in his arm, shoulder and neck or that there was any regional pain syndrome. It is likely, although it is not clear from the report, that a verdict would have been entered for the defendant. 11Counsel for the plaintiff then referred me to the decision of my colleague Taylor J in Afarin v Excelior Pty Limited [2013] NSWDC 65. In that case the plaintiff had suffered a back injury lifting a carton from a pallet on 20 September 2005. The parties in that case had agreed on 22 percent WPI in July 2011 and proceedings were commenced in December 2011. His Honour did not refer to the decision in Opoku but pointed out that the requirements of the 1987 Act that there be at least 15 percent WPI agreed or conceded provided an explanation for the delay in between 20 September 2005 and July 2011. There was nothing unorthodox about his Honour's decision. 12The next decision to which I have been referred is that of my colleague Gibson J in Parry v Masterpet Australia Pty Ltd [2013] NSWDC 71. In that case, the plaintiff had injured her low back at her place of employment on 29 March 2004. On 24 November 2006, the plaintiff and her employer agreed that she had 17 percent WPI. In that case, the parties urged upon her Honour that 24 November 2006 was the date from which the limitation period should run. Her Honour described that as a "controversial submission", but one which I have, in these proceedings, referred to as "brave". After referring to the decision in Opoku, her Honour said, at [27]: "This approach conflicts with many years of settled law in the NSW Court of Appeal. Adamson J does not refer to the many decisions which have held that the three year period dates from injury, not a finding of permanent impairment sufficient to bring a claim. Since the doctrine of precedent and principle of stare decisis operate to ensure certainty in the common law system ... this effectively means that I cannot follow Adamson J's reasoning in Opoku, supra, compelling this approach may be." Commencing at [36], her Honour sets out earlier decisions made in this Court. At [38] her Honour pointed out that Sorby J refused to follow Opoku in Braserio v Zodhope Pty Ltd, a decision of 28 March 2013. Immediately after [27], her Honour set out the decisions in the Court of Appeal that are binding upon judges of this Court, which led her to refuse to follow the reasoning of Adamson J in Opoku. 13The final decision to which I have been referred is that of my colleague Truss J in Benton v QBE Workers Compensation (NSW) Ltd [2013] NSWDC 107. In that case, the plaintiff sustained injury on 27 October 2003. Proceedings were commenced on 17 August 2012, almost nine years after the date of the injury. In that case the plaintiff relied upon Opoku. The plaintiff in that case acknowledged that a decision of a single judge of the Supreme Court does not bind a judge of the District Court because no appeal lies from a judge of the District Court to a single judge of the Supreme Court. However, her Honour pointed out that whilst a judgment of a single judge of the Supreme Court is not binding on a judge of the District Court, it ought be regarded as persuasive and given proper weight and respect. Her Honour pointed out that it follows that the decision in Opoku ought be followed unless there was a compelling reason not to do so, given that its correctness had been challenged. Her Honour then went on to point out that there had been a number of cases in the District Court where Opoku had not been followed. Commencing at [17], her Honour said this: "17. The principal difficulty which the Opoku decision poses for this court is that in [63] Her Honour makes reference to the date on which the plaintiff's cause of action accrued whereas section 151D makes it clear that the three year limitation period runs from the date on which the injury was received. 18. There is no reference to s 151D in her Honour's judgment in particular at paragraphs 62 and 63. It was submitted on behalf of the plaintiff that the reality is that Her Honour must have had such provisions in mind because she referred at paragraph 63 to the three (3) year period, which is the period mentioned within section 151D. In the circumstances, it was submitted, it is inconceivable that her Honour would not have been referred to s 151D during the course of the hearing. 19. As the court reads the relevant passages in the judgment relied on they do not seem to contain any statement of principle and the process by which Her Honour came to the conclusion she did is not entirely clear. It is not possible to know to what extent concessions were made and issues arising under section 151D and 151H were ventilated during the course of the hearing and whether or not such concessions or submissions were appropriate having regard to the legislation. 20. This court is not prepared to speculate as to what sections Her Honour may or may not have been referred given that there is no specific reference in the judgment to s 151D. If Her Honour had been referred to this section Her Honour did not explain why, despite the wording of the section, a different test for determining the limitation period was applied because of section 151H. In particular Her Honour does not explain why the dates on which the injury was received in section 151D ought be read as synonymous date on which the cause of action accrued if that was what was decided." At [23] her Honour specifically refers to the decision of Gibson J in Parry Masterpet Australia Pty Ltd, in particular those parts of that judgment where Gibson J had referred to the authorities decided in the Court of Appeal. Her Honour went on to say this: "24. With the greatest of respect to Justice Adamson, on its face the relevant part of the decision in Opoku would appear to be contrary to the wording of section 151D which is, in my view, clear. 25. For these reasons the court declines to follow Opoku and concludes that the relevant date for the purposes of time running under section 151D is the date of injury, namely 27 October 2003. It follows that the limitation defence pleaded by the defendant has a proper basis and that paragraph 1 of the plaintiff's notice of motion as amended should accordingly be dismissed." 14Suffice it to say that I adhere to my initial impression that the decision of Adamson J is unorthodox and I completely concur with the reasons given by Judge Truss and Judge Gibson as to why it ought not be followed. Accordingly, the plaintiff is required to obtain leave to commence these proceedings out of time. I assume the plaintiff seeks an order nunc pro tunc that the imitation period be extended to 9 May 2012. 15The next problem which arises is the question of when the plaintiff became aware that she was required to seek leave to commence proceedings against her former employer at common law, when she crossed the threshold provided by s 151H of the 1987 Act. On 2 June 2004, the plaintiff and her former employer, Karlaun Pty Ltd, reached an agreement under s 66 and 67 of the 1987 Act. The plaintiff had been examined by Dr Richard Deveridge on 8 April 2003. Dr Deveridge diagnosed 17 percent loss of efficient use of the plaintiff's right arm at or above the elbow, a 12 percent loss of efficient use of the plaintiff's left arm at or above the elbow, and 5 percent permanent impairment of her neck. Eventually the parties agreed that the plaintiff had 12 percent loss of efficient use of her right arm at or above the elbow, 8 percent loss of efficient use of her left arm at or above the elbow, and 5 percent impairment of her neck. The formal agreement reached between the parties is evidenced by a Certificate of Determination under the seal of the WCC, which became exhibit E. In addition, the parties agreed that the plaintiff was entitled to a lump sum, under s 67, of $12,500 for pain and suffering resulting from the two losses and the impairment which had been agreed. Well after that agreement was reached, Dr Deveridge was asked to give his opinion as to the extent of the plaintiff's WPI as at the time of his assessment on 8 April 2003. The report generated bears date 1 August 2013 and is exhibit H. Dr Deveridge expressed the view that the two losses of efficient use and the permanent impairment, which he diagnosed as a result of his examination on 8 April 2013, represented a WPI of 9 percent. 16More recently there was a claim for further lump sum compensation. On 26 March 2010 the plaintiff's solicitors wrote to the insurer of the employer making, amongst other claims, a claim for 44 percent WPI pursuant to s 65A(4) of the 1987 Act, and alternatively a claim for 18 percent WPI pursuant to s 66 of the Act. As I understand, it the first claim was for WPI resulting from a psychiatric condition and the 18 percent WPI was in respect either of all physical injuries or a mere deterioration in the physical injuries. Eventually the plaintiff, on 1 October 2010, made a claim for 8 percent impairment of the neck, 8 percent loss of efficient use of the right arm at or above the elbow, and 10 percent loss of efficient use of the left arm at or above the elbow, being additional claims pursuant to s 66 of the Act, that is, claims additional to those that were the subject of the agreement of 2 June 2004. 17On 5 August 2009, the plaintiff was seen by Dr Deveridge, again, who on this occasion diagnosed a 20 percent loss of efficient use of the plaintiff's right arm at or above the elbow; an 18 percent loss of efficient use of the plaintiff's left arm at or above the elbow; and a 13 percent permanent impairment of the plaintiff's neck. One will note that the new percentages certified by Dr Deveridge exceed the earlier agreed sums by the exact amount claimed on 1 October 2010. Dr Deveridge expressed the view that the two losses of efficient use and the permanent impairment which he diagnosed, amounted to 18 percent WPI. 18The defendant's insurer qualified Dr Richard Powell. Dr Powell generated reports bearing date 22 September 2010. Dr Powell diagnosed 20 percent WPI. If one wishes to compare apples with apples, Dr Deveridge diagnosed 6 percent impairment of the neck, 6 percent impairment of the left arm and 7 percent impairment of the right arm. Dr Roberts' impairments were 7 percent for the neck, 7 percent for the left arm and 8 percent for the right arm. One can see that Dr Powell's individual impairments and WPI are greater than those of Dr Deveridge. Dr Deveridge's individual impairments under the new system of measurement are contained in a report of 18 February 2010. 19Some time in November 2010 the parties reached a complying agreement as to the extent of the plaintiff's WPI. Annexure Q to the plaintiff's affidavit of 2 October 2012 is a copy letter from Vardanega Roberts, who were then acting for the defendant, to the plaintiff's solicitors bearing date 9 November 2010 enclosing a s 23 Notice of Judgment or Settlement and a complying agreement for execution by the plaintiff and return. Those documents were returned to Messrs Vardanega Roberts by the plaintiff's solicitors on 17 November 2010. On 14 December 2010 Messrs Vardanega Roberts sent to the plaintiff's solicitors a cheque for the agreed compensation. 20What exactly was agreed is not at all clear from the voluminous documentation put before me, which voluminous documentation is noted more for what is absent than for what is duplicated, triplicated or quadruplicated. However, it is common ground that this complying agreement was reached and, although the evidence does not contain a copy of it, that it was agreed that the plaintiff's WPI exceeded 15 percent, namely 18 percent. 21Submissions have been put to me repeatedly by the defendant that the assessments made by Dr Deveridge on 8 April 2003 and represented by the agreement reached on 2 June 2004 indicate that, at that time, the plaintiff had a WPI of 15 percent. I cannot accede to such wild submissions. Firstly, the only evidence as to what the assessment of Dr Deveridge amounted to in WPI terms as at 8 April 2003 is that of Dr Deveridge himself. That report was tendered without objection. Dr Deveridge was not called to give evidence. If it is to be submitted that Dr Deveridge either deliberately or negligently or under some confusion or error got the conversion from the old system into the new system wrong, he ought to have been cross-examined about it. However, it was not done. Furthermore, there was no contrary evidence put before me. The submission rested on form rather than substance. It rested on confusion between the technical terminology of the old table of maims where one talks of loss of efficient use of an item in the table, or the permanent impairment of the back, neck or pelvis, and the terminology of the newer system where there are impairments calculated in accordance with AMA guidelines with a resultant whole person impairment or WPI. One cannot accept that, for example, a loss of efficient use of the left arm at or above the elbow is the same as the permanent impairment of the left upper limb determined in accordance with the AMA guidelines. The systems were quite different. 22I therefore accept that it is only from a date in November 2010, when the parties reached a complying agreement, that the plaintiff knew that she had crossed the threshold sufficient to allow her to seek leave to commence proceedings against her former employer to bring an action for damages. 23The next area of some controversy, and the cause of further mischief, is the use by the plaintiff in the statement of claim of those dreaded words, "As a result of the nature and conditions of her employment". This is not terminology that one would find in Bullen & Leake, Precedents of Pleading. This is not technical jargon adopted from any Act of Parliament such as the Civil Liability Act 2002 or any other statute in this State, nor in any similar legislation in any other part of the Commonwealth of Australia or in the United Kingdom, or indeed in the common law world. The origin of this phrase is in the speech of Lord Shaw of Dunfermline in Simpson or Thom v Sinclair [1917] AC127 at 192; (1917) 10 BWCC 220 at 235. That was an appeal to the House of Lords from the Second Division of the Court of Session of Scotland. The head note is of interest: "A workgirl was employed a fish-curer, at Aberdeen, to kipper herrings in a particular shed. While at work there, an adjoining brick wall in the course of erection for a neighbour fell and brought down the roof of the shed in which the girl was at work and injured her. The Sheriff-Substitute awarded the compensation, but the Second Division set the award aside holding that the accident did not arise out of the employment." Their Lordships reversed the decision of the Court of Session and restored the award of the Sheriff-Substitute. His Lordship said this: "In short, my view of the statute is that the expression 'arising out of the employment' is not confined to the mere 'nature of the employment'. The expression in my view applies to the employment as such - to its nature, its conditions, its obligations and its incidents. If by reason of any of these the workman is brought within the zone of special danger and so injured or killed, it appears to me that the broad words of the statute 'arising out of the employment' apply." As Burke CCJ was prone to comment those who plead "nature and conditions of employment" ought to have pleaded "nature, conditions, obligations and incidents of employment". 24Eighteen years ago in Mirkovic v Davids Holdings Pty Ltd (1995) 11 NSWCCR 656, I said at 667: "The phrase 'nature and conditions of employment' is not a term of art, although many who practise in this jurisdiction seem to think so. One Judge of Appeal recently referred to it as 'quaint'. My colleague Bourke J has repeatedly referred to it as a 'meaningless concept'. It is used in this place as a shorthand way of alleging that, although no frank incident is relied upon, there was some aspect of the work carried out by a worker over a period of time, e.g. repeated lifting or bending, which caused some pathological condition or acted upon some underlying pathological condition to cause incapacity. Some classify such a period of work as a series of traumata or microtraumata, others classify it as causing a disease of gradual process within section 15 of the Act (where the pathology was caused by such work) or as the aggravation, acceleration, exacerbation or a deterioration of a disease within section 16. The 'microtraumata' contention was that advanced by the worker on review. What I am being called upon to do here is to interpret the original decision and award of the Commissioner. I am not called upon to solve the general problem of classification, if there be a general solution." I went on in that case to point out that the Commissioner, Wright C, had found that the second injury involved was in fact a disease rather than the "microtraumata" submission that had been put by the worker on the review. 25The general problem of characterisation of a medical condition caused by a protracted period of work was the subject of some learned commentary by Burke CCJ in Perry v Tanine Pty Ltd (1998) 16 NSWCCR 253. More recently the problem has entertained the Court of Appeal: Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244. The background of that decision is this taken from the head note: "On 6 April 2005 the Arbitrator determined that between 1990 and 23 May 2002 the worker had received an injury to his right shoulder arising out of or in the course of his employment as a slaughterman with the employer and that that employment was a substantial contributing factor to his injury. The Arbitrator found that the worker was suffering from an aggravation of a disease, being a degenerative condition to his right shoulder as a result of overuse and repetitive trauma while working for the employer. The employer was ordered to pay compensation to the worker. The employer appealed to Arbitrator's decision which review was determined by a Presidential member on the papers and the outcome was generally favourable to the worker." Amongst the appeal points taken was that it was not open to the Arbitrator to make the decision that he did as there was no evidence that the worker was suffering from a disease or the aggravation of a disease. The decision of the Court was given by Mason P, with whom Santow and Tobias JJA concurred. Mason P commenced discussing the issue now concerned at [49]. After reviewing the evidence, his Honour said this: "58. On review, the Acting Deputy President held that the Arbitrator's Determination was open to him on the whole of the evidence before him, in particular, the more than the 70 pages of oral evidence by the worker. I agree. 59. The employer submitted in this Court that the Deputy President's decision was wrong in law because: I. There was no evidence of a 'disease being the failure of the right shoulder to cope with the repeated stresses imposed upon it' from any medical source. II. The medical evidence summarised by the Arbitrator identified conditions such as 'tendonitis', 'bursitis', 'rotator cuff tendonitis', 'calcific tendonitis', 'rotator cuff lesion', 'right shoulder rotated cuff strain' and 'capsulitis'. There were references on a couple of occasions to the degenerative nature of the problem. III. Nowhere is there a description of these conditions or processes as being a 'disease'. 60. In my view, the Arbitrator's decision was open to him on the evidence that is referred to in his Reasons. See in particular Dr Rizkallah's opinion that there was 'evidence of rotator cuff and bicipital tendonitis as a result of overuse and repetitive trauma at work'. This is found in his report dated 8 January 2001 that was indubitably relied on before the Arbitrator, not in the report of 20 December 2004 as to which there is some controversy (see below). 61. The failure of an area of the body to cope with repeated stress imposed upon it, leading to pain and loss of function is capable of being found to be a disease process (see generally Armao v Ladue Holdings Pty Ltd (1992) 8 NSWCCR 440; Perry v Tanine Pty Ltd t/as Ermington Hotel (1998) 16 NSWCCR 253). There was in the present case a substantial body of medical evidence as to the nature and origin of the worker's condition which allowed the Commission to conclude that the injury process as disclosed by the evidence was a disease. The evidence was also capable of showing that the disease had been aggravated by the nature and conditions of the work." 26The Workers Compensation Act 1987 speaks of injuries and diseases. It does not speak of "nature and conditions of employment". Much woolly thinking and much unnecessary litigation has been caused by people who use that phrase and fail to differentiate between injury and disease. Now this woolly thinking has found its way into common law litigation. 27The complaint by the defendant about the amendment of the statement of claim to limit the plaintiff's period of employment was said to cause prejudice to the "defendant" because it narrowed the period of "nature and conditions" that could be relied upon. What I infer was meant to be submitted was that the employment that the worker had at The Palms Hotel Motel at Chullora extended from 1997 to 2001 and that that whole period of work should be seen as causative of the plaintiff's physical injury and therefore the defendant ought be able to bring a cross-claim against the earlier employer of the plaintiff at The Palms Hotel Motel at Chullora, namely Premium Wine Company Pty Ltd. 28Under the workers compensation legislation, where there is a finding of either disease or the aggravation, acceleration, exacerbation or deterioration of a disease, the employer is entitled to claim, by the statute, contribution from anyone who employed the worker in the one year preceding the death, injury, incapacity or claim made. There is no such provision at common law. For the defendant to have a cross-claim against an earlier employer, not against a concurrent employer, but a consecutive employer, the defendant would have to have available evidence that the type of work which the plaintiff did for the earlier employer caused or materially contributed to the plaintiff's injury. There is no such evidence other than ipse dixits of lawyers and medical practitioners. 29I turn then to consider the various histories. The plaintiff executed a Claim for Workers Compensation. The second page of that document has been photocopied in such a fashion that it is almost all black. The date of execution by the plaintiff is unclear although it appears that it was received by the employer on 20 November 2001. The question, "How did the accident occur, and what were you doing at the time?" has been answered, "Normal duties". The plaintiff was then asked to specify the name and address of any witness. She gave the name and address of Maureen Cassin. When asked to give the time of injury the plaintiff said it happened at 12 midday on 26 October 2001. The plaintiff was also asked to give the date on which she gave notice of her injury. She said that she gave notice on the following day, 27 October 2001. In answer to the question as to when she stopped work the plaintiff said that she stopped work, at 12pm on 28 October 2001. When asked to specify what was wrong with her, the plaintiff said that she was suffering from tendonitis of the right arm. 30The Employer's Report of Injury form bears date 21 November 2001. That says that the plaintiff's injury occurred on 26 October 2001 at 12 noon and that the plaintiff gave notice on 27 October 2001 to Joanne Quinn. A description given in the Employer's Report of Injury form is this: "Happened during the course of the day - felt pain in right arm - by the end of the day could not fold any sheets." 31On 26 October 2001 the plaintiff went to the practice that includes Dr Ng, the Ingleburn Medical Centre at 2 Nardoo Street, Ingleburn. The entry in the doctor's notes for that consultation is this: "Aching around forearm 1/12 especially around elbow. Good [range of movements]. Tender lateral epicondyle humerus. Tendonitis. Cleaner. Prescribe Voltaren." 1/12 indicates a history of the plaintiff's having pain for about one month. Dr Ng gave the plaintiff an ordinary certificate on 26 October 2001 certifying her as being unfit for work until 4 November 2001. The next certificate issued by Dr Ng bears date 7 November 2001 and is in the form prescribed by WorkCover. These prescribed certificates are generally called "WorkCover Certificates". That of 7 November 2001 indicates that it is the "Initial Certificate". That document gives the date of injury as being 26 October 2001, diagnoses a soft tissue injury to the right forearm/tennis elbow, and says the cause of injury was cleaning and stripping and making beds. 32The next certificate bears date 16 November 2001 and was issued by another practitioner from the Ingleburn Medical Centre and again diagnoses right tennis elbow and right forearm pain. Those appear to remain the diagnoses by Dr Ng and doctors at his practice until 16 February 2002 when an additional diagnosis of "sore right shoulder/trapezius muscle" was added with the words "now also" meaning it was of recent origin. Since then, the plaintiff's conditions have continued to deteriorate. However, the inference to be gleaned from the notes made by Dr Ng and others at his practice is that the symptoms dated no further back than one month prior to 26 October 2001. The reports of this practice are exhibit 22 tendered in the defendant's case being documents on subpoena from the medical practice. The defendant relies upon an entry on 1 April 1998. That entry as I interpret it is this: "Sore spot left shoulder, itchy. O/E [on examination] inflammatory spot." There was then the prescription of something which could be oral medication or might be a topical cream, I do not know. However, there is no further entry about any "orthopaedic" problem until the entry of 26 October 2001. The inference I draw is that the entry 1 April 1998 is of some local dermatological condition such as an ingrown hair, pustule or boil or the like affecting the plaintiff's left shoulder on 1 April 1998 and has absolutely nothing to do with the matters that are now before me. 33There are before me a number of medical reports. Most medical practitioners take histories. Sometimes those histories can be of utility. The first history is that recorded by Dr Deveridge when he saw the plaintiff on 8 April 2003. It is this: "Your client informs me that she worked as a housemaid at The Palms Hotel/Motel for nearly 4 years. She worked 5 hours daily on five and sometimes six days a week depending on the demand. It was her job to clean the rooms, make beds and carry laundry (there were no trolleys provided). She was required to wash, dry and fold the laundry and then place it in lockers. During October 2001 she developed some aching in the proximal part of the right forearm near the outside of her elbow. Over the next few weeks the pain increased and by 26 October 2001 she could hardly lift the sheets from the bin in order to fold them. She saw her local general practitioner, Dr R Ng, who prescribed medication ... which she still requires on a daily basis." Again, that puts the onset of symptoms in October 2001. 34The next report that is before me, chronologically, is that of David Bornstein, an orthopaedic surgeon who saw the plaintiff on 8 July 2003. Dr Bornstein has this history: "I am told that she sustained a gradual onset of discomfort with a nominal date of injury of 26 October 2001. Basically began in her right forearm in a vague fashion as indicated to me and in the upper arm which seemed to extend to the right shoulder and neck area. Since that time she has now been complaining of similar pains on the left-hand side which has [sic] developed since she ceased employment! She believes that her pains had begun about four weeks before 26 October 2001 which is essentially the date she reported her problem." Again, four weeks before 26 October is either very late September or early October 2001. 35The next report I have follows upon Dr John Harrison's examination of the plaintiff on 17 November 2003. Dr Harrison is an orthopaedic surgeon who was appointed by the WCC as an Approved Medical Specialist. Dr Harrison has this history: "In the course of her usual work and a month before 26 October 2001, she started to notice increasing patterns of discomfort in her right forearm. This was around the extensor aspect of the forearm extending up to the elbow and it was provoked by active use of her right upper limb. She carried on at work. On 26 October 2001 in the laundry, she was assisting another staff member to fold sheets and she became increasingly aware of difficulty in managing the rotation, tugging and folding action involved. The same morning she had difficulty operating the squeegee mechanism on a mop when she was cleaning bathrooms as that added to the pain she was getting at and around her elbow and forearm on the right and she had an element of discomfort extending up her right arm. It extended up to the shoulder (but not the base of her neck at that time). At the end of her shift, around 12 midday, the manageress was not there for her to report the pain and she left." Again, the history obtained by Dr Harrison is much the same as the history recorded by Dr Bornstein, Dr Deveridge and by Dr Ng. 36The next medical practitioner to examine the plaintiff was Dr Leonard Lee, a psychiatrist. Dr Lee examined the plaintiff on 31 January 2005. The history obtained is: "Ms Feltham gave an extremely vague history as to how she began to suffer pain initially. She said that her arm was getting sore, "suddenly over a period of time". As this was illogical, I clarified it and she told me that she used to get pain which built up over some time although she was extremely vague. Apparently she had pain first in her right forearm. She had two weeks rest but she said that returning to work made it sore again and she had another two weeks off. Then her employers made her scrub a wrought iron banister and hose the carpark so she ceased work. She said that the pain has subsequently spread to her neck and her left arm because she could not use the right arm." Again, there is reference in the evidence to the plaintiff making a few, and I believe it is two attempts, to return to work on restricted duties. However, it is clear that the plaintiff first had symptoms in her right proximal forearm, that is, her right forearm near the elbow. The "two weeks rest" initially referred to probably refers to the plaintiff's initial absence from work. There is nothing inconsistent in Dr Lee's history with the history recorded by the other medical practitioners, whose histories I have already quoted. 37The next history I have is that taken by Ms Anna Katarino, a consulting psychologist on 17 November 2006. It is this: "Ms Heather Feltham was employed by Theo's Liquor as a housemaid. She reported that she was carrying out daily chores when she sustained a workplace injury. Ms Feltham injured her shoulder when she was getting the sheets out of the industrial bins and found that she could not move. Ms Feltham stated that she made approximately sixty and up to ninety beds per day and was sore by the time she went home. The injury occurred on 29 October 2001. She attended her local doctor who gave her one week off work and to rest her shoulder. She returned to work on different duties, scrubbing the bathroom however her shoulder continued to be painful." The further history I need not cite, however that history is again not inconsistent with the earlier recorded histories. 38The next history is recorded by a consultant psychiatrist, Dr Selwyn Smith who saw the plaintiff on 1 September 2008. The history is not particularly helpful. It is this: "Ms Feltham reported a gradual build-up in pain in her right upper limb that gradually worsened to the extent that she consulted her family physician and went off work on 22 October 2001. She stated the right upper limb developed pain with the restrictions of movement. She stated the pain radiated into her shoulder and neck. Following the consultation with her family physician, she was advised to rest for a week and then re-engaged at work on light duties." Again, the further history need not be cited. Again, the doctor's report is not particularly helpful because he has not tried to isolate when exactly it was prior to stopping work on 26 October 2001 that the plaintiff first noticed symptoms. 39The next history is that recorded by Dr Deveridge when he re-examined the plaintiff on 5 August 2009 but in that history taking the plaintiff merely confirmed what she had earlier told Dr Deveridge. 40The plaintiff was examined on 12 August 2009 by Mr Greg Anning, a clinical psychologist. Like Dr Selwyn Smith's history, it is not helpful. It is this: "Ms Feltham reported that her injury developed slowly over a period of time. She described that her arms were getting sore and that one day she couldn't pull a sheet out of the bin. Ms Feltham informed that they didn't have trolleys at work and she and the other housemaids carried everything on their shoulders. She described the bed linen was slung over a shoulder. Ms Feltham reported that in October 2001 she went to her general practitioner with right elbow pain. She stated that she was put off work for a while to rest before returning to work on light duties. Ms Feltham claims that her employer gave her a scrubbing brush and she was told to scrub the balustrade. This resulted in her aggravating her injury and again going off work." 41Finally I have a history recorded by Dr Richard Powell, who saw the plaintiff on 6 September 2010 for the defendant's former solicitor. It is this: "Ms Feltham advised me that although the date of injury referred to in the documentation is 26 October 2001, she had been aware of the gradual accumulation of symptoms in her right forearm and a lateral elbow over a period of several weeks leading up to this. On the day in question, she was removing clothes out of a basket in preparation for folding, when in addition to her right elbow symptoms she also developed pain in her right shoulder. She was unable to continue working and drove home. She attended her local doctor, Dr Ng, who declared her unfit for work. She remained off work for one week. She was referred for physiotherapy." Again, according to the history given by the plaintiff to Dr Powell, symptoms started "several weeks" prior to 26 October 2001. That is consistent with the four weeks that have been earlier referred to. 42Then there is the plaintiff's sworn evidence. Her first affidavit was sworn on 29 August 2011. It is annexure A to her affidavit of 21 August 2012. In pars 5 to 11 the plaintiff described the type of work she did for the defendant. The affidavit then continues thus: "12. In October 2001 I began to feel aching in the right forearm near the outside of my elbow. The pain gradually increased and spread along my arm. 13. By 26 October 2001 I could hardly lift the sheets from the linen bin in order to fold them for the beds. 14. I saw my local practitioner, Dr R Ng, who prescribed me medication, including Panadeine Forte and Mersyndol." The plaintiff was required for cross-examination. She entered the witness box at 3.04pm on 15 August 2013. Her examination finished on that day. She was not challenged at all as to the date of the onset of symptoms. She was recalled on 16 August 2013 and warned and gave some further evidence, but again was not cross-examined about when her symptoms may have developed. The only conclusion any rational tribunal of fact could draw was that the plaintiff's symptoms commenced in late September or early October 2001. 43I have already referred to other entries in the records of the practice of Dr Ng, which are identified as the Ingleburn Medical Centre. One will recall that the "nature and conditions" period originally pleaded was from an undetermined time in 1997 until October of 2001. The plaintiff attended upon the Ingleburn Medical Centre on nine occasions in 1997 but there is no mention of any problem the plaintiff had at work or any problem of an orthopaedic nature. The majority of the plaintiff's attendances in 1997 concerned kidney stones. Besides the one attendance for the inflamed spot on her left shoulder in 1998, there was only one other attendance in 1998 and that was essentially about the plaintiff's general health. On that occasion she complained of left-sided chest pain. There were three attendances in 1999 but again only for chest problems. In 1999 there were some misplaced entries but they merely relate to chest X-rays. In the year 2000 there were four attendances but they appear all to have been for a gynaecological condition. There was one attendance in 2001 prior to that of 26 October 2001; unfortunately, the date of that attendance is truncated. It appears to be either February or March 2001. The entry is hard to read but there is nothing to indicate to me that it was for an orthopaedic problem. A cream was prescribed at the time. The entry could relate to varicosities on the left leg but I am completely unsure. In any event, there is no suggestion of any complaint at any stage, for example, prior to Karlaun Pty Ltd taking over control of The Palms Hotel Motel on 9 May 2000. 44The defendant has called no evidence on the issue as to whether employment with Premium Wine Company Pty Ltd caused or contributed to the plaintiff's problems since October of 2001. It is abundantly clear that on 9 May 2000 the plaintiff's contract of service was novated from the Premium Wine Company Pty Ltd to Karlaun Pty Ltd. If, instead of her contract of employment being novated, the plaintiff's contract of employment had been terminated and she did not take up employment with Karlaun Pty Ltd, one could hazard the observation that she would not have developed the symptoms which put her off work in September of 2001. There is no evidence that the work that she did, assuming it is exactly the same as the work that she did for Karlaun Pty Ltd before 9 May 2000, would cause the whole or any part of the plaintiff's medical condition. If taken out of the workforce on 9 May 2000, the plaintiff might now be symptom free and injury free. No evidence has been called by the defendant that there is some necessary prodromal period or evidence that is sometimes called when there is a case of the ingestion of a toxin, evidence of an epidemiological nature, to say that so much exposure is required before the level of toxicity of a chemical in the body could cause symptoms. There is no evidence to say that for one to develop a lateral epicondylitis one would have to do so many hours work or do so many hours work over a specified period of time doing a specific type of job. Indeed, for all one knows tennis elbow can come on from one game of tennis which would be less than one shift of six hours at a workplace. 45It is necessary to go along this route because the defendant maintains that it is prejudiced by the fact that its ability to pursue a cross-claim against Premium Wine Company Pty Ltd is stymied because all records of that company have either been lost or destroyed. However, there is just no evidence which would enable a cross-claim against the Premium Wine Company Pty Ltd to succeed. Once it is accepted that the plaintiff's symptoms came on in September or October 2001, and once it is accepted that there is no evidence to suggest some necessary prodromal period or some dose related necessity of having to do so much work, any prospective cross-claim against Premium Wine Company Pty Ltd would fail. Counsel for that company, joined as a cross-defendant, could point to the glaringly obvious, which is what I have sought to do in these reasons for judgment which I shall continue delivering tomorrow morning at 10 o'clock. 46When I adjourned yesterday evening, I had been discussing the prospects of the defendant's bringing a successful cross-claim against the plaintiff's former employer, Premium Wine Company Pty Ltd. The significance of that is the possible loss of the defendant's chance to bring such a cross-claim. 47Creevey v Barrois [2005] NSWCA 264 concerned the granting of an application to extend the limitation period under the Motor Accidents Act 1988. The primary question for the determination of the Court of Appeal was whether, despite the delay and the circumstances in which the delay occurred, a fair trial of the issues between the parties could possibly be anticipated. To determine that question it was necessary for the Court of Appeal to consider whether the appellant suffered prejudice primarily in relation to a lost opportunity to cross-claim against a third party, the time to file such a cross-claim having expired and there being no power to extend or waive the relevant limitation period. That was one argument. An argument that the case did not resolve was whether the limitation period under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 ran from the time fixed by the statute as the limitation period or from the time to which the court extended the limitation period. At [56], Basten JA said this: "As noted in the passage from Tekno Ceramics set out above at [50], an assumed loss of a right to cross-claim against a joint tortfeasor will give rise to significant prejudice sufficient to render it unjust to allow a claimant to proceed out of time, but only where the possible claim for contribution has been shown to be viable and realistic, rather than a fanciful or theoretical possibility." The same point was made in GIO General Limited v Love [2009] NSWCA 269, where Handley AJA, with whom Basten and Young JJA concurred, said at [40]: "As this court held in Creevey v Barrois ... when considering the loss of rights against a third party the question is whether the claim has been shown to be viable and realistic, and not merely fanciful or theoretical." 48The point I was seeking to make yesterday evening was that it has not been demonstrated on this application that the defendant, being the respondent to the motion, has shown that it has a viable and realistic cross-claim against the plaintiff's former employer, that being merely a fanciful or theoretical possibility at best and, in my view, merely unarguable. 49The question which I must consider is whether I ought to extend the limitation period pursuant to s 151D(2) of the 1987 Act. The relevant legal tests are clear. In Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207, Sheller JA said: "2. I have had the privilege of reading the judgment in draft prepared by Ipp AJA. His Honour has exhaustively reviewed cases dealing with the circumstances in which the Court is called upon to exercise its discretion to extend statutory periods of limitation. As his Honour has demonstrated in some statutes the legislature has specified circumstances that must be taken into account and given due weight. In others such as s 151D(2) of the Workers Compensation Act 1987, with which we are here concerned, the legislature does no more than enable the Court to grant leave to a person to commence Court proceedings after the expiry of the limitation period. In broad terms it can be said that a discretion expressed so widely should be exercised in a way which will best serve the justice of the case. 3. The cases have shown that particular circumstances may compel a refusal by the Court to extend time. An example is actual significant prejudice to the defendant brought about by the plaintiff's delay. But it is not correct to conclude that the absence of such prejudice compels an exercise of discretion in favour of the plaintiff. Ordinarily the potential plaintiff is required to demonstrate that circumstances warrant the Court's exercising its discretion to extend the time for commencing proceedings. The applicant bears that positive burden. In Salido v Nominal Defendant (1993) 32 NSWLR 524 at 530 Gleeson CJ said that the proper question for a judge to ask in dealing with an application for leave to proceed is whether it would be fair and just to grant leave. In Parsons v Doukas (2001) 52 NSWLR 162 I said that where a long and unexplained delay had not resulted in significant prejudice to the potential defendant it might be that the discretion would properly be exercised in favour of the potential plaintiff but that the court was in no sense bound so to exercise its discretion. The question was whether the delay had made the chances of a fair trial unlikely." In the same case, Ipp AJA, with whom Spigelman CJ as well as Sheller JA agreed, said at [87]: "In my opinion, in limitation legislation such as s 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." Earlier, at [78], his Honour stated the four rationales identified by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. Ipp AJA said: "McHugh J (at 552) identified four broad rationales for the enactment of limitation periods, generally. These were: (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." 50One further matter to be borne in mind is what fell from McColl JA in The Salvation Army (South Australian Property Trust) v Rundle [2008] NSWCA 347 at [96]: "Brisbane South is authority for the proposition that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant...'Significant prejudice' means such prejudice as would make the chances of a fair trial unlikely ... For a trial to be fair, it need not be perfect or ideal..." That was cited with approval by Basten JA, with whom Gyles AJA and Hoeben J concurred in Strasburger Enterprises Pty Ltd trading as Quix Food Stores v Serna [2008] NSWCA 354 at [52]. 51The evidence before me identifies nine potential witnesses as to the system of work at The Palms Hotel Motel when it was under the control of the present defendant and/or as to any complaints that may have been made by the plaintiff. In no particular order, the witnesses are, firstly, Amanda Tucker. Ms Tucker made a statement on 24 July 2012 at The Palms Hotel at Chullora and that statement has been admitted into evidence, by consent, as exhibit L. Ms Tucker was, at the time she made the statement, the manager and licensee of The Palms Hotel Motel. She commenced working there on 27 August 1998. She believed that the plaintiff was not then employed at the hotel motel but she appeared to have been relying upon documents indicating the commencement of the plaintiff's employment with the current defendant rather than the commencement of any earlier employment with Premium Wine Company Pty Ltd. Ms Tucker became the manager/licensee of the hotel motel some time in 2008. It is common ground that the current defendant sold the hotel motel and its business to Coles some time in 2003. According to exhibit 4, a land and property information historical search of the New South Wales property register, transfer of the realty was effected on 13 November 2003. However, many other pieces of evidence before me suggest that the actual change of ownership of the business was in May 2003. 52During the period when the plaintiff worked at the hotel motel, and at the current time, according to Ms Tucker's statement, there were thirty-three motel rooms. There are some motel rooms within the hotel itself and a separate building of two storeys which contains a number of the motel rooms. When Karlaun Pty Ltd was the owner and operator of the hotel motel, the housemaids/cleaning staff cleaned not only the motel rooms but also the hotel premises prior to starting work on the motel rooms. When Coles took over the hotel motel, contract cleaners were engaged to clean the hotel but the housemaids/cleaning staff continued to clean the thirty-three motel rooms. Paragraphs 12 and 13 of Ms Tucker's statement are these: "Now we have 3 cleaners permanent part time and 1 casual cleaner to do the motel rooms only. There are 33 motel rooms here and that has always been the case. The structure of the motel and the hotel is the same now as it was then. There have been some cosmetic changes to update old furniture and fittings at times, but essentially the rooms and the stairs for access are the same now as when I started. When I started the cleaners were carrying their cleaning equipment in a carry bucket or basket and cleaning the rooms. Now we have trolleys, which are stored on each floor and they are wheeled between rooms and house the cleaning equipment used to do the rooms." Ms Tucker then goes on to point to the existence of other employees who may have been at the hotel motel when the plaintiff worked there. Ms Tucker has no personal knowledge of the plaintiff's injury or of its being reported to the hotel management, although the report was clearly made. In par 26 Ms Tucker refers to food catering trolleys which had been used in the past, but which have now been replaced with purpose-built cleaners' trolleys. In par 30 Ms Tucker refers to the fact that backpack vacuum cleaners are now used by cleaning staff, although in the past they had used barrel-type vacuum cleaners. 53The next relevant witness is Ms Maureen Cassin. One will recall from the reasons I gave yesterday that Ms Cassin was nominated by the plaintiff in her claim for compensation as a witness to her injury. Unfortunately, Ms Cassin is dead. She has died of ovarian cancer. According to the affidavit of Steven Hall sworn on 5 April 2013, which is exhibit 1, Ms Cassin died in 2005, well before the plaintiff reached a complying agreement with the defendant that indicated that she passed the statutory threshold to bring an action for damages at common law against her employer. One will recall that such an agreement was not reached until November 2010; therefore, even if proceedings had been commenced in November of 2010, Ms Cassin still would not have been available to provide a statement or give evidence. 54The next relevant witness is Joanne Dodd. Ms Dodd made a statement on 26 July 2012 and swore an affidavit on 3 May 2013. The affidavit and the statement are exhibit D. At the time of making her statement Ms Dodd was fifty-three years old. She is the sister-in-law of the plaintiff, being married to the plaintiff's brother. Like Ms Tucker, Ms Dodd tells me that the layout of the hotel and the rooms at the hotel motel is the same now as it was when the plaintiff worked there, but for some cosmetic changes. Commencing at par 10 of her statement, Ms Dodd said this: "I would say that on average a quiet day would be ten rooms booked and at the most, all thirty-three rooms booked. In the early days, before Coles took over, our duties were a little bit different to now. In those days we also cleaned the bar rooms, toilets and gaming room in the hotel, before we did the housekeeping. There were more staff then than what we have today. Then we had five persons on the roster working for housekeeping and now there are four. In the previous days, we had three of the staff working on any day and now we have two. Now we do not have to clean the hotel. We all were involved in cleaning the hotel before the housekeeping duties. The cleaning of the hotel would take about ninety minutes and the rest of the four hours would be doing the rooms. If we know in advance that there are more rooms booked, then we would roster more staff to cater for that and keep the hours the same, but it does not always happen that way. In the hotel, we would mop, vacuum, sweep and do the toilets. Heather was involved in this as well. After the hotel work, we would then go and do the motel rooms. I would say that the cleaning of the hotel stopped before Coles took over, as Laundy got contractors in and they have done it ever since. The motel has always been reasonably busy and I would say on average there is a fifty percent occupancy, meaning we clean on average fifteen to twenty rooms each day. In those days, we did not have the cleaning trolleys that we now have, which carry all our cleaning gear and we can wheel between rooms and there is one on each floor. The trolley also carries the linen required. We made use of a food trolley, which was stainless steel and it had a single shelf on top and a single shelf beneath and was on castors. We used this to carry the linen along the corridors. We carried our cleaning gear in a separate bucket. We had one food trolley upstairs in the hotel and one each on the other side. The motel is on three different levels. In the hotel, there is a level upstairs, where there are thirteen rooms and then in a separate building behind the hotel, there is a two-storey block with each floor having ten rooms. About half way along the corridor or balcony there is a set of steps and there are three steps. With these steps we cannot move the trolley we now use along past these stairs and there is no additional trolley at the other end. As a result we have to manually carry the linen and cleaning equipment for the rooms at the other half of the separate block on both the lower and upper floor. The duties for a room are as follows. We would strip the bed and take out the rubbish and soiled towels. The vacuuming would then be done for the room, using a barrel-type cleaner. Now we have backpack vacuum cleaners, which have some advantages, but really make it no easier or harder to vacuum. One person is doing the bathroom, cleaning the shower and basin, toilet and floor. Whilst this is happening the other two people are making the bed and cleaning. If there are only two on, then we adjust the routine, but it is the same task. If the person is staying on, it would take about twenty minutes per room and if they are leaving, it would be about thirty minutes. It really depends on the clientele, how clean the room is and other factors. We have cleaned all thirty-three rooms in four hours with three people." 55Ms Dodd's statement continues with a description of work which the plaintiff did involving moving linen that was soiled from the rooms to the laundry and about the washing of the linen when the plaintiff was there, which required on average three loads per shift. When Coles took over the hotel motel, contractors were engaged to do the laundry offsite and staff were no longer required to do the laundering of the linen for the hotel motel. In par 22, Ms Dodd said this: "Overall now it is an easier job than it was, but I believe it could be better, with additional trolleys and not having to carry the sheets and linen up the stairs. The sheets are bundled and string tied in groups of five sheets per bundle. We each carry two or three bundles by hand up the stairs. We have no trolley or other mechanical aid to get the linen up the stairs in bulk without us [sic] having to carry it. We also have the towels in string bundles of ten. We would only carry one bundle of towels." 56In the next paragraph, Ms Dodd describes the position that has obtained since Coles took over the hotel motel when linen was externally laundered and brought back to the hotel. However, in the par 24 of her statement, Ms Dodd points out that it was still necessary to drag bags of linen down stairs and along the ground once rooms had been cleaned. In par 25, Ms Dodd said this: "I don't recall a specific incident that happened to Heather to cause her injury. I remember she came in to work one day and complained about her right elbow from memory, but it was an elbow. I said to her that she should see a doctor about it and I would report it to management. I told Jo Quinn or Debbie [Haskins], who was second to Jo [Joanne Quinn], but I can't remember her last name. Both Jo and Debbie have left. I have no contacts for Jo, but believe she lived in the Campbelltown area." 57In the next paragraph, Ms Dodd refers to the plaintiff's returning to do some light duties which, in the view of Ms Dodd, were a demeaning, "make work" exercise. In par 27, Ms Dodd says this: "When you are finished here, you are tired. It is a physical job that we have and we know that, but sometimes you get sore shoulders and sore back, but you manage with a hot back and Dencorub and Voltaren." In the following paragraph, Ms Dodd refers to staff coming and going and staff complaining about "soreness and aches and pains". Such evidence clearly goes to foreseeability. In par 34, Ms Dodd mentions a matter which would suggest a viable alternative and safer system of work. The same matter is raised in par 39. 58The next witness identified is Diane Hancock. Ms Hancock made a statement on 27 July 2012 and swore an affidavit on 10 May 2013. Those documents are exhibit J. At the time of making her statement Ms Hancock was sixty-two years old. She appears to have started working at the hotel motel in 1984, although her period of employment was not continuous. In par 7 of her statement, Ms Hancock said this: "I have been back for about three years this time and at the time Heather Feltham reported her injury I had been here for many years." In the next two paragraphs, Ms Hancock states what the normal working hours were and the roster was. In par 10 she points out that the beds that were in the hotel motel before Coles took over were much heavier than those that are now in place. In essence, she confirms much of what was said by Ms Dodd. In par 22 of her statement, Ms Hancock says this: "We were allowed half an hour to clean a room, but we worked faster as we would not be given seven hours to do the work. I can do a room myself in fifteen minutes on my own, if I had to, but that is working at a fast pace. I would say that twenty minutes per room is normal." 59In the next paragraph, Ms Hancock points out that the washing of the linen in the laundry at the hotel motel was commenced after the commencement of the cleaning of the rooms. She believed that there were three or four loads of washing on average each day which needed, after being washed, to be dried and then folded. Ms Hancock believed that, at the time the plaintiff worked at the hotel motel, there was an average of twenty hours' work each week for each housemaid or cleaner. Commencing at par 31, Ms Hancock said this: "I don't remember there being a single incident with Heather Feltham hurting herself. I remember that she had a bandage on her arm for some time. I remember that she told me about her elbow being sore. I don't remember which arm it was. I don't remember much else about it. I can remember her being back at work and on light duties and they had her cleaning the metal handrails with a toothbrush. I felt that this was very strange, sitting on the stairs cleaning them. We never had to do that and I would not have done it anyway. Heather didn't stay long after that and I don't remember who told her to do that job. It was a demeaning job in my opinion." 60In par 35, Ms Hancock remembers the plaintiff complaining about the weight of mattresses on the old beds, which needed to be turned. Ms Hancock then refers to herself developing soreness when doing the work but makes little further complaint about that. Ms Hancock then goes on to discuss other persons who may have worked at the hotel motel when the plaintiff was working there. Commencing at par 39, Ms Hancock talks about health and safety aspects which tie in with observations made by Ms Dodd and in particular refers to at least one complaint made by the plaintiff of phone books being used to prop up beds which had broken legs. 61The next potential witness identified is Ms Joanne Quinn, who clearly was, at some stage, a supervisor of the plaintiff. The evidence from Mr Laundy indicates that the publican or licensee of the hotel motel was the manager and that under the manager was a supervisor who supervised the cleaning staff. Mr Steven Hall, an investigator retained on behalf of the defendant, sought to interview Ms Joanne Quinn. Paragraph 12 of his statement of 23 March 2013, which forms part of exhibit 1, is this: "On Saturday 23 March, 2013, I attended 5 Guem Place, Macquarie Fields, where I spoke with a woman who identified herself as Jo Quinn. Ms Quinn stated that she had no recollection of the incident involving Heather Feltham. In addition, she said that she could offer no information in respect to this matter as it happened too long ago. She declined to participate in an interview." Mr Hall gave oral evidence. According to him, Ms Quinn had no recollection of her employment at The Palms Hotel Motel and had moved on to other employment. The point of the cross-examination of Mr Hall was to suggest not that Ms Quinn had no memory, but merely that she was a reluctant witness. The evidence of Mr Hall indicated to me that he was unsure as to whether Ms Quinn was merely being reluctant or had no recollection of pertinent events. 62The next witness identified is Ms Debbie Haskins. Her identity was established through the evidence of Mr Arthur Laundy. He thought that the manager was Debbie Haskins but conceded that Ms Haskins may only have been a supervisor. It is clear that Mr Laundy has an ongoing professional relationship with Ms Haskins and has had since Ms Haskins worked at The Palms Hotel Motel. Mr Laundy told me on oath that Ms Haskins is currently the manager of the Honeysuckle Hotel on the waterfront at Newcastle. Mr Laundy is effectively the owner of that hotel but it let it twelve months ago to Woolworths but maintains ownership of the real property. No attempt has been made either by the plaintiff or the defendant to interview Ms Haskins. The extent of her recollection is unknown. However, I draw an inference from the evidence of Mr Laundy, from the confidence he has placed in Ms Haskins, that she would probably recollect her working at The Palms Hotel Motel where she was at least a supervisor. Whether she has any recollection of the plaintiff's complaints or injury is another question. Mr Laundy gave evidence on Friday 16 August 2013 and it was my impression that Ms Haskins might be interviewed between then and the recommencement of this case on 21 August 2013, but no attempt was made to do so. In essence, the plaintiff said that this was something the defendant should have done and the defendant very properly points out that the onus of proof on this application is clearly on the plaintiff. 63The next relevant witness identified is Ms Joan Brine (or Brian or Bryan). According to the evidence before me, Ms Brine was an employee for thirty years at the hotel motel but retired in 2009 at the age of seventy-two. She would clearly now be seventy-six. One wonders how good her recollection might be. However, no attempt has been made to identify her whereabouts or, indeed, to identify whether she is still alive, let alone to take a statement from her. According to the evidence before me, she was a supervisor at The Palms Hotel Motel prior to Joanne Quinn becoming a supervisor. 64The next potential witness identified was Ms Pat Firnbank Ms Firnbank was mentioned only by Ms Hancock in her statement and, according to Ms Hancock's statement, Ms Firnbank is deceased. 65The final potential witness identified is Maria Tsangarides, who, in essence, was unknown to any of the cleaning staff but was thought by Ms Hancock to be a lady who worked in the office for one of the owners of Karlaun Pty Ltd at business premises at Neutral Bay. Other evidence before me clearly suggests that Ms Tsangarides, who is nominated on the employer's report of injury form as a contact person, was merely a worker in the office doing clerical duties and is unlikely to be in any way a material witness. 66The defendant submits that it is prejudiced by the effluxion of time and the fact that Ms Cassin is deceased, Ms Firnbank is deceased, and that Ms Quinn had no relevant recollection or is unwilling to give evidence and that it is unknown what Ms Haskins and Ms Brine might say. However, as I have pointed out, Ms Cassin died in 2005 and, because the plaintiff could not contemplate commencing proceedings until November 2010, her absence cannot be used adversely to the plaintiff. Ms Firnbank is mentioned only by Ms Hancock and by no other witness, and may not have been a relevant witness. The impression I formed from Mr Laundy's evidence was that Ms Haskins would be available to give evidence if somebody bothered to interview her and might be available to either the plaintiff or the defendant or both. There is a great similarity in the evidence of Ms Tucker, Ms Dodd and Ms Hancock, which all points in the one direction, consistent with the case which the plaintiff seeks to put before the Court. 67The witness whose absence is the most telling is the witness either who is reluctant or has a poor memory, Ms Joanne Quinn. It is significant in my view that when it was sought to interview her, it was done on behalf of the defendant and it may be that, if the plaintiff sought to interview her, she might be a more willing witness or perhaps have her memory prompted. Of course, having all relevant witnesses available for a hearing would be ideal. A solicitor who could provide to a barrister a proof of every possible witness would be considered to have prepared a perfect case. The absence of witnesses or a failure to have them interviewed does point in the direction of prejudice, but the question for me really is whether there is "significant prejudice"; that is, whether the chances of a fair trial are unlikely. 68The first thing to note is that the thirty-three rooms in both the hotel and the motel still exist and, but for some changes in furnishing and décor, are in the same condition now as they were when the plaintiff worked there. The system of work has been clearly identified. There is no real dispute about it on the evidence before me. That there were changes can be seen from the evidence of the witnesses I have quoted and the fact that that appears to have largely been caused by the sale of the hotel motel to Coles rather than by any initiative of Karlaun Pty Ltd. 69One of the problems that I discussed during the course of the hearing of this notice of motion was the lack of any employment records. Mr Laundy told me that he had a statutory duty to keep records for seven years; that in fact, Karlaun's records were kept for nine years but were then destroyed. There was, accordingly, no record, for example, of wages paid and hours worked by the plaintiff. However, the missing information was largely replaced on 22 August 2013. The plaintiff's husband then entered the witness box to prove some documents and it was not necessary for the plaintiff to further prove them herself, although she did give further evidence. The documents show hours worked and wages paid to the plaintiff for each week ending between 30 July 2000 and 30 December 2001. Therefore, the only missing records are for the period from 9 May 2000 to 29 July 2000, a relatively short period of time. 70The average working hours and the lengths of the plaintiff's shifts can easily be ascertained from what became exhibit M, payslips, and exhibit N, a pay advice form prepared for the plaintiff by her former employer, the defendant, and which had been submitted to the WCC at one time and had been returned to the plaintiff and her husband. Therefore, the destruction of records is, in my view, not relevant. 71Mr Laundy gave evidence that there were some written documents concerning occupational health and safety that were amended from time to time in accordance with the appropriate State legislation. Those no longer exist. However, they probably could easily be reconstructed by any diligent lawyer by looking at what the relevant provisions of occupational health and safety legislation required of employers of cleaners at hotels and motels during the relevant period of time. 72From this survey, I can announce that I am satisfied, firstly, that the plaintiff has at least an arguable cause of action and, secondly, that there is every chance of a fair trial taking place. I expressed grave concern to counsel for the plaintiff that no expert evidence has been made available to show what alternative system of work there might have been and, for example, no evidence of an ergonomic nature as to what could have been done to improve the defendant's system of work once it was ascertained. The cavalier response of counsel for the plaintiff to that concern was that that could be left to the trial judge, that perhaps evidence could be put together in the meantime, that is, between now and any eventual hearing. However, that cavalier attitude may leave the plaintiff in difficulty considering the provisions of s 318(1)(a) and (2) of the Workplace Injury Management and Workers Compensation Act 1998 ('the 1998 Act'). 73However, even without expert evidence one could postulate that the system of work used by the defendant could have been improved by the provision of purpose-built cleaning trolleys as were introduced by Coles in 2003 and, indeed, more of those purpose-built trolleys could have been provided than were provided by Coles by putting one on each side of the central staircase on each level of the separate two-storey motel building at the rear of the hotel. Furthermore, it is easy to postulate, as a tribunal of fact, that the system of work could have been improved by the simple addition of a hoist to raise and lower bundles of linen from the car park level of the area around the separate motel building, which would have enabled linen to be both lowered and raised and then placed on trolleys without the necessity of dragging bundles of linen downstairs to the laundry and without the need of carrying bundles of linen upstairs by hand. 74The remaining area of contention has been the question of delay since 2009. As I pointed out yesterday, the plaintiff reached a complying agreement with the defendant on 2 June 2004 for the payment of lump-sum compensation under ss 66 and 67 of the 1987 Act; that the quantum of that, on my findings yesterday, was insufficient to enable the plaintiff to commence common law proceedings. The plaintiff then remained in receipt of weekly payments of compensation until she received a letter from the defendant's insurer dated 24 June 2009. The letter describes itself as "notice of decision to decline liability for your Workers Compensation claim". The notice purports to have been given pursuant to s 54 of the 1987 Act. The reasons given for the decision are approximately twenty and I shall not quote them. Essentially, the insurer of the defendant decided that the plaintiff's entitlement for weekly payments of compensation pursuant to s 40 of the 1987 Act were "nil", and it would appear that the plaintiff was not ready, willing and able to engage in suitable employment with the defendant or was not ready, willing and able to engage in rehabilitation. The same letter advised that the insurer would review its decision if the plaintiff disagreed with it or had additional information, documents or medical reports, and also advised the plaintiff that she could lodge an application with the WCC for a review of the insurer's decision. 75It would appear that no application was made to the WCC. It would appear that, rather than doing so, the plaintiff and her solicitor decided to seek to commence a common law action, and hence the necessity of obtaining up-to-date medical assessments to see whether the plaintiff could reach the statutory threshold. Hence, arrangements were made for Dr Deveridge to re-examine the plaintiff on 30 July 2009 and for Mr Anning to interview the plaintiff on 12 August 2009. What happened thereafter is a very leisurely and often ill-directed course of events. On 26 March 2010, the plaintiff's solicitor wrote to the insurer and "The Palms Hotel Motel" a letter which contained the following particulars: "1. Our client suffered a psychological injury as indicated in the abovementioned report of Greg Anning, clinical psychologist, and a physical injury as indicated in the abovementioned report of Dr Richard Deveridge enclosed herewith. 2. Our client does not suffer from any previous injury or any pre-existing condition or abnormality. 3 . The possibility of a change in our client's permanent impairment is as indicated in the enclosed Report. 4. (a) Our client claims lump-sum compensation pursuant to the provisions of s 65A(4) of the Workers Compensation Act 1987 as amended for: 44 percent Whole Person Impairment of the total value of $100,650.00 (b) Our client claims lump-sum payments pursuant to the provisions of s 66 of the Workers Compensation Act 1987 as amended for: 18 percent Whole Person Impairment of the total value of $26,950.00 (c) Our client further claims under the provisions of s 67 of the Workers Compensation Act 1987 as amended for: 90 percent of the most extreme case to the value of $45,000.00." The next paragraph provides "particulars of negligence" as if this document were a statement of claim, and par 6 provides "the particulars of damages", again as if the document were a pleading. 76At the end of the letter the plaintiff's solicitor enclosed a "pre-filing statement", presumably in accordance with s 315 of the 1998 Act. That "pre-filing statement" is somewhat similar to the statement of claim which ended up being filed. Paragraphs numbered one, two, three and four were almost identical. However, paragraphs 5 and 6 of the pre-filing statement are these: "5. On 26 October 2001 the plaintiff employee was carrying out her duties in her employment with the defendant employer at her place of employment and, whilst in the laundry folding sheets, she injured her right and left arm. 6. As a result of the above injury, the plaintiff employee was unable to function in her normal manner as a person and in 2006 she suffered psychological injury. PARTICULARS OF INJURY (a) Agoraphobia (b) Anxiety (c) Major depressive disorder (d) Panic disorder." The document then goes on to make the allegation of negligence and to provide particulars of negligence and damages and other heads of claim. 77The insurer of the defendant replied on 30 April 2010 that it denied liability for any primary psychological injury for 44 percent whole person impairment pursuant to s 65A. That notice purports to have been given pursuant to s 74 of the 1998 Act. The reasons for the decision expressed in the letter of 30 April 2010 commence pithily thus: "The medical evidence on your file demonstrates that any psychological symptoms you suffered are a result of your physical injury suffered on 26 October 2001 to your neck and both arms, that is your psychological symptoms are secondary to your physical injury and do not constitute a separate, primary injury as asserted within the meaning of s 4, 9, 11A of the 1987 Act." Quite bluntly, that reason is quite correct. The plaintiff's psychological symptoms are the result of her physical injuries and are not a primary condition. With the utmost respect, the plaintiff's solicitor should have realised that. In a separate letter of 30 April 2010, the insurer advised the plaintiff's solicitor that it disputed the plaintiff's claim for work injury damages, inter alia, because of s 151E of the 1987 Act and, inter alia, because of an alleged failure by the plaintiff to mitigate her damages. 78On 17 June 2010, the plaintiff's solicitor wrote to "Palms Hotel Motel" at its address at Chullora a letter similar to that sent on 26 March 2010, again reiterating the claim under s 65A but on this occasion itemising the claims under s 66, then again enclosing the pre-filing statement. A similar letter was then sent on 1 October 2010 to both Karlaun Pty Ltd at the address of the hotel motel at Chullora and to the insurer of the defendant employer. That received a response from Messrs Vardanega Roberts on behalf of the defendant. On 12 October 2010, they requested particulars concerning both liability and damages. On 22 October 2010, Messrs Vardanega Roberts made an offer to the plaintiff concerning her entitlements under s 66 for the loss of efficient use of each of her arms at or above the elbow, for further permanent impairment of her neck, and for a further lump sum under s 67. That led to correspondence which eventually led to the execution of the complying agreement and what would be otherwise called "terms of settlement", which were sent back to Vardanega Roberts on 17 November 2010. In other words, that was the time when it was agreed that the plaintiff had reached the statutory threshold. 79On 12 January 2011, the plaintiff's solicitor responded to Vardanega Roberts' letter of 12 October 2010 supplying particulars both as to liability and damages. On 17 January 2011, the plaintiff's solicitor served upon Messrs Vardanega Roberts a "second amended pre-filing statement". There had been an amended pre-filing statement prepared and served by the plaintiff's solicitor, but when it was served is not clear to me at the present time because of the morass of paperwork that has been provided to me. However, the amended pre-filing statement merely changed the name of the proposed defendant from Theo's Liquor Pty Ltd to Karlaun Pty Ltd, while still alleging a cause of action for a psychiatric injury due to a single event on 26 October 2001. The second amended pre-filing statement served on 17 January 2011 was almost in the form of the document that was actually filed in this Court on 9 May 2012. 80On 14 March 2011, the plaintiff's solicitor sent to the WCC an application for mediation of a work injury damages claim. That was received by the WCC in March 2011 but the actual date that it was received by the Commission is obscured by another stamp placed upon the document. That application asserts that the pre-filing statement was served on the defendant on 26 March 2010 and states that the amended pre-filing statement was served on 17 November 2010. That at least solves the question of when the amended pre-filing statement was served. However, it is to be recalled that each of those pre-filing statements relied merely on a primarily psychological injury suffered in a frank incident on 26 October 2001 and were nowhere near the form of the second amended pre-filing statement that was served by the plaintiff's solicitors on 17 January 2011. This application to the WCC was misconceived. 81That led to the plaintiff's solicitor having to make a further application to the WCC. That application was filed with the WCC on 10 October 2011. It relied on the pre-filing statement of 17 January 2011. The application for mediation was served upon the defendant's current solicitors on 14 October 2011. That led to the plaintiff and her husband attending a mediation on 4 April 2012. According to the plaintiff's affidavit of 21 August 2012, which is exhibit A, the plaintiff's claims were not settled at that mediation hearing and the plaintiff was advised that the next step was to commence proceedings in this Court. 82One can see a delay, therefore, between November 2010 and the filing of the statement of claim on 9 May 2012. Why it then took the plaintiff until 3 September 2012 to file the current notice of motion is not at all clear. However, the course of action I have outlined since the plaintiff received the notice from the insurer denying liability for weekly payments of workers compensation on 24 June 2009 can be explained by lethargy and less than competent practice on the part of her lawyer. 83The plaintiff's solicitor could have acted more expeditiously after receiving the reports of Dr Deveridge of 5 August 2009 and Mr Anning of 19 August 2009. If he had correctly perceived that the plaintiff's psychiatric or psychological injury was secondary to her primary injury, then perhaps the pre-filing statement that was, in fact, served on the defendant on 17 January 2011 could have been served at the much earlier time of 26 March 2010 and even months before then if he had been acting diligently. The first application to the WCC for mediation was wholly misconceived and led to the second application to the WCC, which took from 10 October 2011 until 4 April 2012 to be dealt with. Why the statement of claim could not have been filed on 5 April 2012 I do not know. Even then it took the plaintiff's solicitor over a month to file the statement of claim in this Court. 84However, it is abundantly clear to me that the plaintiff was relying at all material times upon her solicitor to do the right thing by her. I have seen and heard the plaintiff in the witness box. I have had time to observe her over the lengthy period of time that she sat in court while this notion of motion has been dealt with. I wholly accept that she is completely unversed in the litigious process and completely unversed in the bureaucratic procedures now mandated by the workers compensation legislation. Authorities concerning applications for extension of time under the Motor Accidents Compensation Act 1999 and, indeed, under its statutory predecessor, indicate that the failure to act and errors of judgment made by a party to proposed litigation made not by the party himself, or herself but by his or her lawyer, can be excused provided that the litigant himself or herself was unaware of what was not happening or was unaware of what was actually happening that ought not to have happened. 85True it is that there has been delay since August 2009; however, I could not attribute that delay to the plaintiff personally. For example, when the plaintiff attended the first mediation with the WCC on 12 September 2011, the plaintiff was told that nothing happened because the defendant's legal representatives indicated that they wanted "further time to consider further evidence". According to the plaintiff's affidavit of 2 October 2012, which is exhibit B, it was then necessary for the plaintiff's solicitor to lodge the further application to the WCC. It is clear that the first application for mediation could not be proceeded with because the plaintiff's solicitor had only relied on the original pre-filing statement and the amended pre-filing statement which relied solely on the primary psychiatric injury resulting from a frank incident on 26 October 2001. That appears not to have been drawn to the plaintiff's attention. 86However, despite all this "sloppiness", what prejudice has been done to the defendant? Sure, more time has elapsed, but a large amount of time had elapsed between October 2001 and August 2009, nearly nine years. Further delays, between now and then, account for a further three years, but there has been a delay in the hearing of this notice of motion which was filed on 3 September 2012 and initially listed for hearing on 12 October 2012 but only sent to me to be heard on 15 August 2013. Therefore, one can see that at least one year has been caused by whatever caused the delay in this Court. 87When I look at the evidence and consider the delay between August 2009 and the present time, I ask myself, "What prejudice can the defendant point to that has occurred during this period?" It cannot be the unfortunate death of Maureen Cassin, who died back in 2005. I do not know when Pat Firnbank died but, again, as I have earlier pointed out, she does not appear to have been a major or material witness on the evidence before me. If the defendant's records were destroyed during the three-year period to which I am now referring, then that has been largely rectified by the admission of exhibits M and N, the payslips and time worked records. I am not persuaded that there has been any material prejudice suffered by the defendant because of this lapse of time, and certainly I would not visit it on the plaintiff herself, albeit the solicitor's tardiness can hardly be condoned. 88I now return to the four broad rationales for limitation periods as identified by McHugh J in Brisbane South Regional Health Authority v Taylor, as summarised Ipp AJA in Itek Graphix Pty Ltd v Elliott. True it is that as time goes by some relevant evidence has been lost. However, I have considered what evidence there is and I have formed the view, as I have already announced, that the chances of a fair trial occurring are good. It is well recognised that it is oppressive to a defendant to allow an action to be brought long after the circumstance that gave rise to it have passed, but here the physical premises are still there, the system of work can be easily identified, and changes that have been made to it over the years have been readily identified. The actual employer, Karlaun Pty Ltd, has been deregistered but the effective defendant is the insurance company, which has been named as the legal defendant as well as being the effective defendant. 89True it is that it is always desirable for those 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. However, here, again, the effective defendant is an insurance company. One cannot conceive of any properly run insurer not maintaining an estimate against a future claim by the plaintiff, for example, at the time that the plaintiff was advised that her entitlement to obtain weekly payments was to be terminated. A prudent insurer would realise that the plaintiff might well make an application to the WCC for recommencement of weekly payments of compensation and an estimate would have to be raised accordingly. Within eight months of the defendant's insurer's letter of 24 June 2009, giving notice of intention to stop making weekly payments of compensation, the plaintiff's solicitor had written to the insurer advising of the plaintiff's intention to seek further lump-sum compensation and/or common law damages. The estimate would still, in my view, have been then in place and no doubt, on advice, the estimate may then have been readjusted to account for the claims which the plaintiff was seeking to agitate. This is not the sort of case where a natural person or small corporation or even a medium-sized corporation might be visited with personal liability for some event that happened long ago. What has happened here is somewhat "par for the course" in a protracted workers compensation claim. 90Finally, the fourth rationale advanced by McHugh J for the enactment of limitation periods ties in with the common law principle of interest reipublicae ut sit finis litium. One, however, of the reasons why this case lingers is because of the bureaucratic procedures and hurdles put in place by the workers compensation legislation, in particular the various amendments that have come into force since 27 November 2001. Rather than bringing litigation to finality, these bureaucratic procedures often prolong it. The easiest way of bringing the dispute to an end is to permit the plaintiff to agitate the claim which she seeks to agitate in this Court, which may bring the whole of the plaintiff's workers compensation claim to an end, the achievement of which, in my view, the plaintiff devoutly seeks. Indeed, she said so in her evidence, although what she said was somewhat misconceived by counsel for the current defendant. 91HIS HONOUR: Are any further reasons for judgment required? Any further reasons required, Ms Dulhunty? DULHUNTY: Don't think so, your Honour. HIS HONOUR: Sorry? DULHUNTY: I don't think so, your Honour. HIS HONOUR: Thank you. ENSOR: No, your Honour. 92HIS HONOUR: Finally, before leaving this case, I would merely draw to the attention of all the lawyers involved in these proceedings thus far, the prayer of the Lord contained in Luke ch 23 verse 34. For those reasons, I grant leave to the plaintiff to commence proceedings in this Court pursuant to s 151D(2) of the Workers Compensation Act 1987 on 9 May 2012. 93Before going on to consider the question of costs, I should add a few more reasons to those I have earlier given to explain something that may not be evident to those who come to read the judgment I have delivered orally, but are germane. Karlaun Pty Ltd was incorporated on 29 October 1997. Its sole shareholders were Mr Theo Karedis and Mr Arthur Harold Laundy. One can see in the name of the company the first syllable, K-A-R, representing part of Mr Karedis's surname and the last syllable of the title, L-A-U-N, being derived from the surname of Mr Laundy. On the evidence before me, Mr Theo Karedis is involved with a large number of companies involved in the liquor industry and I trust that Mr Karedis would not take me as being disrespectful when I refer to him as an eminent liquor baron. Mr Laundy gave oral evidence, as I earlier mentioned, and described himself as an hotelier. Mr Laundy indicated that he was seventy-two years old and for many, many years had been involved with hotels. He told me that, between 2000 and 2003 he had forty hotels. He still is a well-known and well-respected hotelier. 94It is clear that Karlaun Pty Ltd was formed as the equivalent of a partnership or joint venture between Mr Karedis's liquor interests and Mr Laundy's hotel interests and, in those circumstances, one can appreciate that there would, no doubt, have been a sign at least over the bottle shop of The Palms Hotel Motel indicating that it was Theo's Liquor and hence a reference in various documents to Theo's Liquor Pty Ltd. 95Mr Laundy told me that he and Mr Karedis had a number of these joint ventures but he referred to Mr Karedis as being the "passive investor", meaning, I assume, that Mr Karedis left it to Mr Laundy to make the day-to-day decisions as to the management of the various hotels at which there were obviously Theo's Liquor outlets. Although Mr Laundy called in almost daily to The Palms Hotel Motel, which was between his residence at Strathfield and his usual place of business at Bass Hill, he left the day-to-day management of The Palms Hotel Motel to a manager who he believed, when giving evidence, was Ms Debbie Haskins; but I have pointed out that he may have been in error in that regard from other evidence before me. However, that explains what has happened here, that the Karlaun Pty Ltd joint venture of Mr Laundy and Mr Karedis took over The Palms Hotel Motel in May 2000 and sold it some time in 2003 to Coles.