Forbes v Nepean Transport Pty Ltd

Plaintiff's Submissions

1. The plaintiff defines the issues on this application to be whether: 1. There is a sufficient and acceptable explanation for each period of delay. 2. The plaintiff has a reasonably arguable claim in negligence. 3. The conduct of the trial would not cause the defendant significant prejudice so as to render the trial unfair.
2. Those propositions are grounded in the observations of Basten JA in Gower v State of New South Wales [2018] NSWCA 132 ('Gower') at [4]. In my view, they reflect an appropriate framework upon which this application ought be determined, and I do not understand the defendant to suggest otherwise.
3. The explanation relied upon by the plaintiff for the delay in bringing the proceedings is said to be a simple one; namely, that he was not aware he had a potential entitlement to bring a claim for damages until he first consulted solicitors in March 2018 but was precluded from bringing such a claim because he received an assessment of whole person impairment which did not overcome the prescribed statutory threshold.
4. This, it is said, is where the matter legitimately rested for the plaintiff with his solicitors closing their file. It was only upon the workers compensation insurer of the defendant serving the report of Dr Browne dated 9 June 2022 that the plaintiff had evidence which would enable him to overcome the threshold to pursue a claim for work injury damages.
5. It is submitted that thereafter the plaintiff's solicitors diligently pursued his rights in the prosecution of that claim for damages.
6. Thus, it is said the explanation is full and it is reasonable.
7. The plaintiff argues that he has established reasonable prospects of success. This, he says, he must only do to a prima facie standard, by satisfying the Court that the claim is reasonably arguable. The plaintiff, in this regard, relies on the evidence of Ms Armour on the question of breach of duty and the medical evidence which has been served, to establish causation.
8. Finally, the plaintiff argues that there is no, or alternatively no significant, prejudice to the defendant if leave were granted. The plaintiff contends that the matters said by the defendant to cause it prejudice, namely, the inability to access documents in relation to the prevailing system of work which would otherwise have been available are somewhat illusory as there is no evidence that such documents existed in the first place and, in any event, the defendant has provided evidence establishing that it has a witness available who can deal with the allegations raised by the plaintiff.
9. The plaintiff says that presumed prejudice is minimal or non-existent and would not lead the court to exercise its discretion against leave being granted.

Defendant's submissions

1. The defendant points to the fact that the plaintiff was, on his evidence, aware that the condition of which he complains was related to employment but did nothing for nearly 5 years, ultimately seeking legal advice well after the expiration of the s.151D limitation period.
2. The defendant also argues that, when the plaintiff first received legal advice in March 2018 and was aware of the potential for bringing a work injury damages claim, it was open to his solicitors to then put the defendant on notice of that potential.
3. The defendant says that, having regard to the affidavit evidence of its Human Resources Manager, Zaynah Altaf, if notice had been given in 2018, it is likely that documents relevant to the defendant's system of work would have been preserved whereas they are now no longer available.
4. The defendant also points out that the evidence of Dr Chang retained on behalf of the plaintiff, whilst supporting a material aggravation of the plaintiff's underlying degenerative condition as a result of his employment with the defendant, also expresses the view that the two years of the plaintiff's employment with the defendant was only a small fraction of the aggravation caused by more than 20 years of his prior working life. The defendant says that the plaintiff's failure to notify it of the claim for damages in a timely fashion means that there is now a significant presumptive prejudice impacting on the defendant's ability to explore aggravation arising out of earlier employment.
5. On the question of presumptive prejudice, the defendant relies upon the well-known observations of the McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, recognising the fact that limitation periods reflect the desirability of people being able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.
6. The defendant did not suggest that the plaintiff's solicitors closing his file in 2019 reflected a decision not to pursue the claim such as that which bound the plaintiff to a limitation period in Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207. Nonetheless, the defendant argues that the management of the potential claim on behalf of the plaintiff meant that the defendant remained unaware of the claim until more than six years after the expiration of the limitation period. The defendant argues that it was entitled to assume in the circumstances that no claim would be brought against it.
7. In formulating its arguments, the defendant relied heavily on the decision of the Court of Appeal in Gower, and particularly the judgement of White JA. It argues it is not fair and just for the defendant to have to now bear the burden of prejudice associated with a claim so long after the relevant events.
8. In terms of actual prejudice, the defendant points to the evidence of Ms Altaf who refers to being unable to locate any "risk assessments, safe work method statements or policies in relation to the plaintiff's duties and the system of work at [the] relevant time". The defendant says the natural reading of Ms Altaf's affidavit is that there were documents of the type she described which would have existed at the time of the plaintiff's employment.

Consideration

1. As the defendant points out, there was a considerable delay before the plaintiff did anything to explore whether he had any rights arising out of the injuries in question.
2. It seems probable to me from the plaintiff's evidence that he was, at an early stage, aware that the problems he was suffering with his wrists during his employment with the defendant and beyond, were potentially related to the work he had done for the defendant, or at least he had a belief that may be so. In his affidavit affirmed on 18 September 2024, after deposing to the treatment he had between 2013 and 2018, the plaintiff says, "On or about 1 March 2018, I first consulted Brydens Lawyers for advice about any potential entitlements/rights I had in relation to the injuries sustained to my wrists whilst employed with the defendant" (emphasis added). I infer from this that the plaintiff saw a correlation between his symptoms and his employment at a time reasonably contemporaneous with the work he had been performing for the defendant.
3. There is nothing to gainsay the plaintiff's evidence that following the consultation with his solicitors in March 2018, he learned for the first time that he may have entitlements with respect to injuries sustained during the course of his employment. There is no reason for me not to accept that evidence.
4. The evidence is silent as to why the plaintiff waited so long to see lawyers, though there is evidence of a worsening of the plaintiff's condition 2 or 3 years after ceasing work with the defendant, with treatment escalating as time went on.
5. In any event, whilst probably more relevant to discretionary factors rather than the explanation as such, I observe that even if the plaintiff had explored his potential rights earlier, it seems unlikely it would have avoided the delay which ultimately transpired in him pursuing common law rights. As events have shown, when the plaintiff's rights were explored by his solicitors in 2018 and 2019, the evidence did not establish an entitlement to pursue a claim for work injury damages given the impediment imposed by the prevailing legislative threshold of 15% permanent impairment. On the evidence before me, pursuit of a claim for damages was not possible until around 2022 when Dr Browne, for the first time, provided an opinion that the plaintiff had breached the prevailing threshold.
6. The plaintiff's explanation for doing nothing between March 2018, when he first consulted his solicitors, and 2022, when the claim for work injury damages was initiated, is entirely a product of the circumstances which saw him unable to overcome the mandatory requirements of the statutory threshold. During that period, the plaintiff understandably, and appropriately in my view, was acting on the advice he had received.
7. The plaintiff's solicitors appear to have acted with due dispatch in prosecuting the plaintiff's damages claim once there was evidence supporting a level of whole person impairment which would overcome the statutory threshold.
8. Overall, as the evidence sits, I consider the plaintiff has provided an adequate and acceptable explanation for the delay.
9. Another matter which falls to be considered in this context is the significance of the plaintiff's solicitors' failure to put the defendant on notice of a potential claim for work injury damages after the recognition of potential common law rights in March 2018. This engages a consideration of the observations of White JA in Gower where, at [188], his Honour said "It is still relevant to the exercise of the discretion under s 151D(2) whether the plaintiff has or has not given notice of his or her intention to make a claim for work injury damages when such a claim could properly be made, so as to alert the employer and its insurer to the prospect of the employer's facing a claim that the injury was suffered as a result of its alleged negligence".
10. Accordingly, whether notice was given of a potential, though not yet crystallised, claim is a matter to be considered in an application for leave under s.151D.
11. Relevantly, in the present case, the failure to notify the defendant of a potential claim did not arise out of a conscious decision to withhold that information or the pursuit of some sort of tactical forensic advantage. All indications are that, following receipt of Dr Mendelsohn's report, it was considered that no common law claim was viable in light of the threshold. The file was then closed, rather than earmarked for further review.
12. It seems to me, there was probably limited specific information that could have been given about a common law claim at that point beyond the mechanism of injury, which is described to some extent in the workers compensation claim form and the report of Dr Browne dated 19 July 2018, both of which were available to the defendant's workers compensation insurer.
13. In 2018, the plaintiff had no liability expert evidence, such as that which was later obtained from Ms Armour, to inform specific allegations of negligence.
14. Whilst the defendant, and more particularly its workers compensation insurer, was not advised of a potential common law claim, it was on notice of the injury and its general circumstances and had accepted liability to pay workers compensation benefits.
15. Some considerable doubt has been expressed as to the weight to be attached to a failure to provide notice of a potential, though not yet crystallised, claim for damages (see observations of Gibson DCJ in Paikan v Western Sydney Local Health District [2020] NSWDC 252).
16. In the circumstances of the present case, I consider the failure to provide notice of a potential claim to be a relevant, though not decisive, factor in the exercise of my discretion.
17. The nature of the discretionary aspects at play were discussed by White JA in Gower at [186], where his Honour said: Section 151H [Workers Compensation Act 1987 (NSW)] is antipathetic to the rationales for a limitation period identified in Brisbane South Regional Health Authority v Taylor if, perhaps because of psychological injury, no proceeding can be brought for years after the event because the degree of permanent impairment cannot be ascertained. None of the cases has considered what the position is if evidence is lost which would tend against the prospects of a fair trial, but the plaintiff could not have brought a claim for damages before the limitation period expired, or before the evidence was lost, because of the legislative constraints. To adapt the language of Basten JA in Strasburger Enterprises Pty Ltd t/a Quix Food Stores v Serna the limits of the discretion are to be found in the subject matter, scope and purposes of the statute. Where the statute imposes barriers against the bringing of claims that result in delay leading to the loss of evidence, but permits leave to be given for the commencement of proceedings, the proper exercise of the discretion is likely to be highly influenced by whether the claim is apparently meritorious and the degree of prejudice.
18. In terms of the merits or strength of the plaintiff's case, I consider that the evidence of Ms Armour and the medical evidence referred to earlier satisfies the requirement of establishing a reasonably arguable case.
19. In all the circumstances, in my view, in balancing the relevant considerations here, the pivotal factor in determining the plaintiff's application for leave will be the extent to which the defendant has suffered prejudice.
20. Ms Altaf deposes to the fact that the defendant has an electronic filing database known as SharePoint. She says that the defendant currently uses SharePoint to store all relevant information related to an employee during the course of their employment, including "any relevant policies and procedures relating to their duties".
21. Ms Altaf was unable to comment on the document filing and management system in place at the time of the plaintiff's employment, but says, "However, general protocol was that documents would be archived and destroyed after a period of seven years". Whilst Ms Altaf was able to locate a copy of the plaintiff's employment file on the SharePoint database, she says, "I was not able to locate any risk assessments, safe work method statements or policies in relation to the plaintiff's duties and the system of work at [the] relevant time".
22. The plaintiff argues that Ms Altaf does not establish that the documents she was unable to locate ever existed. However, it seems to me, particularly in circumstances where she is the defendant's Human Resources Manager and was not tested on her evidence, the natural reading of Ms Altaf's affidavit is that such documents are expected to have existed. On the evidence, I find it plausible that there were probably documents of the type Ms Altaf describes that have since been destroyed or otherwise cannot now be located. At the very least, the defendant is in a position that it cannot say whether those documents existed at the time of the plaintiff's employment. Thus, I think the defendant has established actual prejudice to the extent that it cannot adduce evidence as to the contents of documents of the type described by Ms Altaf.
23. An affidavit of the defendant's solicitor, Michael Lamproglou, sworn 13 September 2024, attaches an investigation report commissioned on behalf of the defendant from Procare dated 26 October 2023 ('Procare Report'). The Procare Report attaches a statement from Daniel Cleary dated 3 May 2023, who was a Technical Director employed by the defendant at the time of the plaintiff's employment. The Procare Report refers to a "run sheet" annexed to Mr Cleary's statement which is said to evidence the work performed by the plaintiff. From what I can make of the document I understand to be that run sheet, it shows work performed (I assume) by the plaintiff between 1 August 2012 and 10 September 2012. This is a primary document which, it appears from the statement of Mr Cleary, can be interpreted by him to provide a breakdown of the nature of the work performed by the plaintiff and time spent on tasks.
24. The Procare Report observes that the Human Resources Manager of the defendant was unable to obtain any training documentation. Otherwise, the Procare Report attaches a "Position Description" document prepared on 13 October 2011, which outlines the nature of the duties performed by a Field Service Technician, as well as a risk assessment dated 2 October 2014 which was apparently conducted by Mr Cleary. Importantly, in my view, in his statement to investigators Mr Cleary says that while that version of the risk assessment, postdates the plaintiff's employment by about one year, it was however in place during his employment. I take that to mean there was no difference between the 2014 risk assessment and that which applied during the plaintiff's employment. I do not understand the defendant to demur from that proposition.
25. Otherwise, Mr Cleary's statement sets out the nature of the work performed by the plaintiff and gives, what I understand to be, first-hand evidence as to the system of work, the nature of the duties, and what he calls a "procedure that Chris would have been following" which was not repetitive. Mr Cleary gives evidence in relation to the tools the plaintiff was required to use and is quite specific as to the nature and number of tasks the plaintiff performed on each day and the maximum time he would have spent "on the tools".
26. Mr Cleary also speaks of "initiatives in place to make sure our staff were safe and fit for work" but does not elaborate.
27. As outlined earlier, the plaintiff's liability case is supported by the expert opinion of Julie Armour. Ms Armour is critical of the defendant for failure to "adopt appropriate MSD [musculoskeletal disorder] risk reduction practices". She says, "It is unlikely that providing education and training in manual handling would have affected the risk if the MSD risk exposures were not adequately managed".
28. Specifically, Ms Armour says the defendant failed to determine if manual task exposures were hazardous and says that such risk assessments, if conducted, would have been likely to better guide the defendant to more appropriate risk reduction techniques in the interim and longer term. She says, "Any such processes would need to be implemented, monitored, and reviewed to ensure that effective risk reduction occurred. It is not clear that this occurred."
29. Ms Armour describes the tools and equipment used by the plaintiff in some detail.
30. Whilst critical of the defendant, Ms Armour's opinion is based on assumptions provided by the plaintiff as to the nature of the work undertaken.
31. As I have said, Mr Cleary, being the defendant's Technical Director at the time, purports to give first-hand evidence in relation to the work performed by the plaintiff and the prevailing risk assessment at the relevant time.
32. Mr Cleary also says he believes there may be other staff still employed by the defendant who were working when the plaintiff was working, who may be able to comment, but he would need to check. The evidence takes this no further.
33. I accept there is a presumptive prejudice for the defendant including that associated with memories having faded so long after the relevant events. However, on the face of it, Mr Cleary appears to have a reasonably good knowledge and recollection of the work performed by the plaintiff.
34. True, it is, that investigating what work the plaintiff performed prior to his employment with the defendant may now be difficult. However, there is no evidence of any attempts to pursue enquiries or actual prejudice in this regard. Generally speaking, one would expect that historical medical records, in particular, are likely to still be available.
35. In any event Dr Chang, in referring to employment with the defendant as effectively contributing 10% towards aggravation over the years, or as he says, "a small fraction" of aggravation, has provided some apparently useful evidence for the defendant on the point.
36. In terms of actual prejudice, the defendant's complaint focuses on the documents which Ms Altaf has been unable to locate.
37. The defendant may be in a better forensic position if such documents could be found. However, it is notable that the plaintiff has not pleaded failure to prepare a safe work method statement or policies, but has alleged failure to undertake a risk assessment and to provide training. Having regard to the strictures imposed under s.318 of the 1998 Act, I expect the plaintiff will be bound by his pleadings.
38. As discussed earlier the defendant has, through Mr Cleary, been able to adduce evidence of the risk assessment which was in place at the time and so, on the face of it, the defendant can deal with that aspect of Ms Armour's criticism.
39. There are apparently no documents which deal with whether and to what extent the plaintiff was provided with training. However, Ms Armour in her report clearly downplays the role of training in managing the risk of musculoskeletal disorder. Again, Ms Armour comes back to the need for appropriate risk assessment as the predominant precaution.
40. Mr Cleary speaks of in-house training being provided to the plaintiff and is demonstrably familiar with the nature of the work the plaintiff performed.
41. At the end of the day, documentation such as safe work method statements and policy documents are relevant and may assist the defendant in its defence of the plaintiff's claim.
42. However, documents are inevitably subsidiary to the systems and practices which were actually being undertaken. If the documents prescribed a safe system of work but, in practice, that was not being observed, then the documents are of little utility in determining the liability issues. Conversely, if there are no documents but the system was such as not to expose employees to an unnecessary risk of injury, then the absence of documents will be of little moment.
43. Ultimately, the evidence most likely to inform a liability dispute in a case such as the present is the factual evidence of those who can attest to the nature of the work performed, the facilities provided to the workers, and the precautions taken against the risk of injury.
44. In this context, the defendant has evidence available from Mr Cleary.
45. As I have said, according to Mr Cleary, there is the potential for other witnesses but the evidence takes that no further.
46. In evaluating the prejudice to the defendant, I have regard to the observations of McColl JA in Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 where, at [48], her Honour, drawing on well-established authority, said that leave to extend time under s 151D should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant, significant prejudice being such prejudice as would make the chances of a fair trial unlikely.
47. For the reasons I have set out I have come to the conclusion that a grant of leave to the plaintiff would not result in significant prejudice to the defendant. The defendant has access to oral and documentary evidence to meet the case advanced by the plaintiff. Borrowing from the language well known in this context (see Commonwealth of Australia v Smith [2005] NSWCA 478 at [129]) the trial may not be perfect or ideal, however in my view, a fair trial can still be had. Accordingly, I propose to grant the leave the plaintiff seeks.

Costs

1. This leaves the question of costs. Costs in this context are compensatory and ought not be punitive. The question is a discretionary one. Whilst, as a general rule, costs will follow the event, the awarding of costs is aimed at doing justice between the parties.
2. At the end of the day, this application was generated because the plaintiff did not comply with the time limits set by s.151D and was significantly out of time. Clearly, the defendant had no part to play in the need for the leave the plaintiff sought.
3. It has sometimes been said that in an application to overcome a limitation period, the plaintiff seeks the Court's indulgence (see Fordham v Fordyce [2007] NSWCA 129 at [50]-[52]). For my part, I find that description unhelpful. As I see it, the question is more concerned with who is responsible for the generation of costs.
4. The explanation which the plaintiff has provided, and which I have found to be acceptable, demonstrates that while the plaintiff may be responsible for bringing this application, the reason for this rests with the scheme of the legislation which effectively precluded the proceedings being commenced within time.
5. In Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128, Sheller JA observed that, normally, a successful applicant who has allowed himself or herself to get out of time should pay the costs of the application unless the respondent's opposition was wholly unreasonable. However, it is notable that while the plaintiff had adequately explained failure to comply with the time limits in that case, her solicitors were considered to have responsibility for the delay. In the same case, Priestley JA cited examples where orders had been made in cases involving extension of a limitation period that costs be costs in the cause.
6. In the present case, the defendant has established both presumed and actual prejudice, albeit, in my view, not sufficient to dispossess the defendant of a right to a fair trial. The defendant's arguments were legitimate, appropriately taken and not unreasonable.
7. The plaintiff argues it is appropriate that costs of this application be costs in the cause. Inevitably, cases and costs orders will turn on their own facts. As has been observed, the legislative path the plaintiff was subjected to is antipathetic to rationales for a limitation period. It seems to me on the facts and circumstances of this case, that the application to extend the limitation period is really an intrinsic part of the litigation, having regard to the legislative hurdles and restrictions on the commencement of proceedings. In that sense, I do not consider the plaintiff responsible for generating the costs of this application. In the exercise of my discretion, I consider it appropriate therefore that costs be costs in the cause.

Orders

1. Accordingly, I make the following orders: 1. The plaintiff is granted leave, nunc pro tunc, pursuant to s 151D(2) of the Workers Compensation Act 1987 (NSW) to commence and maintain these proceedings against the defendant. 2. The costs of this application are to be costs in the cause.

Endnote

1. I make the observation that Ms Altaf, the defendant's Human Resources Manager whose evidence is discussed in more detail later in this judgment, says that the named defendant is not the correct legal entity which employed the plaintiff. Ms Altaf nominates Nepean Transport Equipment Pty Ltd (formerly Vehicle Inspection Systems Pty Ltd) as the entity within the "Nepean business" that employed the plaintiff. If correct, this may require the pleadings to be amended in due course to properly name the defendant. However, nothing turns on this for present purposes, there being no suggestion that it is a matter of any substance in the defence of the plaintiff's claim. Accordingly, references to the defendant in this judgment can be taken as reference to the employer, however that be correctly identified. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 October 2024