Gower v State of New South Wales

The procedural history of the plaintiff's claim

1. After these proceedings were commenced they were not referred to a circuit list for case management despite the defendant raising a limitation defence. Instead, at the third directions listing before the registrar, they were set down for hearing in the 13 March 2017 sittings, on the basis that the defendant's application to strike out the claim on the basis of the limitation argument would be brought in the 31 January 2017 sittings.
2. These orders (which I am satisfied were made because of the plaintiff's solicitors' refusal to bring an application under s 151D) unfairly placed the burden of dealing with the limitation issue upon the defendant. Instead of the plaintiff bringing an application for extension of time early in the litigation, the defendant was ordered to (and did) file a notice of motion to strike out the proceedings by 22 December 2016 as a result of the plaintiff's failure to do so, while both parties continued to prepare for the allocated hearing on 13 March 2017.
3. Because of the difficulties this created, the parties listed these proceedings before Balla DCJ, the list judge in the January sittings. Her Honour vacated the hearing date of 13 March 2017, ordered the plaintiff to file the notice of motion the subject of this judgment and listed that application in the 13 March 2017 sittings before me for hearing.
4. These procedural problems are only one of the many difficulties arising from the manner of conduct of this litigation. These events occurred long ago. There is no affidavit from the plaintiff. The two affidavits from the plaintiff's solicitor (who was already acting for the plaintiff at the time, in relation to another work injury) do little more than attach correspondence. There is a six-volume-long affidavit sworn by the solicitor for the defendant on the issue of actual prejudice, much of which was of limited assistance. The manner in which the evidence was presented, and the level of combativeness, also contributed to the difficulty and to the length of time the application took to hear.

The legislation and relevant principles of law

1. Section 151D of the Act provides: "151D Time limit for commencement of court proceedings against employer for damages (2) 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. (3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies. (4) This section does not apply to the commencement of court proceedings in respect of a claim within the meaning of Part 5 of the Motor Accidents Act 1988 or Chapter 5 of the Motor Accidents Compensation Act 1999."
2. The limitation period expired on 11 September 2006 and the extension of time sought is nine and a half years.
3. Where an extension of time is sought under s 151D (2), "it is for the person seeking to be freed from the constraint imposed by the limitation statute to show that the relevant delay is not likely to make the proceedings unfair or to cause real prejudice to the proposed defendant, that is, the person having the benefit of the time bar" (Gallagher Bassett Services NSW Pty Ltd v Murdock [2013] NSWCA 386).
4. The drafters of 151D (2) did not set out in any precise what specific criteria to be taken into account when exercising the discretion to extend time. In this regard, s 151D differs from other limitation provisions in that it confers a broad discretion, where the question to be asked is what is fair and just, or what does "the justice of the case" require (Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 at [44] - [46], referring to Itek Graphix Pty Ltd v Elliott at [87] per Ipp AJA).
5. While the question of whether to extend time is generally governed by the facts in each case, what the court has called "the justice of the case" must be evaluated by reference to rationales of the limitation period that has barred the action. The factors referred to by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 are that as time goes by relevant evidence is likely to be lost, that it is oppressive to a defendant to allow an action to be brought long after the circumstances giving rise to it have passed, the desirability of the members of the community being able to arrange their affairs on the basis that claims can no longer be made against them, and public interest factors.
6. All of these are relevant to the case in question. Where there is "significant prejudice" (Holt v Wynter (2000) 49 NSWLR 128 at [111], [114] and [119]), namely such prejudice as would make the chances of a fair trial unlikely (Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 at [96]; Commonwealth of Australia v Smith [2005] NSWCA 478 (at [128]) Santow JA (Handley JA agreeing), applying South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 (per Hodgson JA, Beazley JA and Rolfe AJA agreeing)), the court should not permit the action to be brought, no matter how hard that may appear in circumstances such as the present case.
7. This is because a limitation period is a provision requiring persons who wish to sue to do so within the stipulated time, unless they can establish circumstances entitling them to obtain leave. In obtaining leave, a party is receiving an indulgence from the court. To allow parties leave when they have been careless of their need to commence proceedings, if not within the limitation period, at least a reason time thereafter (in the case of beneficial legislation such as the present), is contrary not only to the justice of the case but also to the public interest factors which require cases to proceed upon a basis of "the justice of the case" rather than empathy for one or the other of the parties.

The circumstances of the plaintiff's injury

1. The injury and subsequent disabilities the plaintiff suffered in October 2003 are complicated by a previous assault on the plaintiff by students in 2000 and a subsequent assault at a hotel. The first of these (the October 2003 assault) is relevant in that the plaintiff's claim for negligence arises not merely from the frank injury referred to in the pleadings but also, according to Mr Hart's oral submissions, from the system of work which put him at risk of assault from a class which he should not have been allocated.
2. The first assault occurred in October 2000. While teaching at Jesmond High School, the plaintiff was put into a headlock by one student while two other students punched him numerous times. The plaintiff was diagnosed by his general practitioner, Dr Roth, as suffering from significant anxiety and depression and ceased teaching for over two years. He was certified fit to return to teaching on 6 February 2003 (Exhibit 1 p. 1168) but did not return until 1 August 2003, on which date he was rostered as a replacement teacher at West Wallsend. High School, which is where the second assault occurred.
3. The plaintiff returned to teaching at another school, the West Wallsend High School, only weeks before the second assault and had only taught for six days, on a casual basis (4 August 2003, then from 18 - 22 August 2003, then from 9 - 12 September 2003) on the date of the accident.
4. The plaintiff had not been rostered to return to full-time teaching. Prior to the assault, he had been booked to continue teaching at West Wallsend until 19 September 20013 and then at another school, Belmont High School, for a two-week period at the end September 2003. Following the accident on 12 September 2003 he did not complete these further teaching duties. He never returned to teaching, or worked in any capacity, again.

The plaintiff's injury, the contemporaneous documentation and relevant witnesses

1. Although I have referred in this judgment to the circumstances of the plaintiff's second injury as an "assault", what happened was that a student, Nathan Zeal, threw a ball at another student and hit the plaintiff instead.
2. This event is described in the Welfare Review (prepared in relation to the disciplining of Nathan Zeal) completed by another teacher, Mr Paul Nelson, on or shortly after the day in question: "Nathan Zeal of Year 10 Electonics [sic] hit the relieving teacher (Shane Gowyer [sic]) for Mr Brown in the face with a soccer ball as he walked out of the electronics door between periods 3 and 4. Mr Brown and Mr Gowyer [sic] had organized that they could play ball games if they completed the written work during the second of the double period [sic] as Mr Brown did not want Mr Gowyer to do the practical as they usually make costly mistakes on the electronic projects. As the head teacher was out of the school grounds on VET work placement visits Mr Thomas found Mr Gowyer [sic] in the staffroom with a bleeding nose. Mr Thomas was quickly filled in on the event then collected the class and witnesses so they could give their statements. The relieving Principal Mrs Moody was then contacted and advised of the serious matter. Mrs Moody said she would come down straight after the planned meeting with staff over recess. At this stage Mr P Nelson arrived back with free metal from AMPCONTEOL (work placement supporter) to be advised of the situation. Mrs Moody arrived two minutes later. Mrs Moody then collected all the statements and Nathan Zeal up to her office. TWO DAY SUSPENSION PLUS A FORMAL WARNING ISSUED FOOTNOTE: Nathan Zeal had not completed the set work and lied about doing so. Nathan still could not accept that he had done anything wrong as he was trying to hit another student who kept poking his head around the door to the electronics room and that it was just bad luck that Mr Gowyer [sic] came out to check on the students who had already completed their set work." (Exhibit 1, p. 37; also reproduced at Exhibit 6 p. 1176)
3. These records appear to note statements made by the plaintiff to other teachers acknowledging he was struck accidentally. However, on 18 September 2003 the plaintiff provided a medical certificate stating his injury occurred as a result of a "soccer ball thrown by student (deliberately) from approx. 2 metres away" (Exhibit 1, p. 1164) and brought a claim for compensation. The incident was then referred to an investigator, Paul Gleeson, who interviewed Ms Moody, Mr Paul Nelson, Mr Paul Thomas and two welfare workers associated with the plaintiff's claim. The plaintiff refused to be interviewed by Mr Gleeson, expressing distrust with the Department as a result of his difficulties with his claim following the assault in 2000.
4. In the course of his report, Mr Gleeson noted that Mrs Moody had obtained four statements (Exhibit 1, p. 1162). He noted that the plaintiff had told staff and the student in question that he accepted it was an accident and that the student who hit him had apologised (Exhibit 1, p. 1162), and noted that the plaintiff had continued working for the rest of the day. He then consulted his doctor and put in a series of medical certificates for the treatment of his injuries, which included a broken nose and a displaced filling with a fracture. Mr Gleeson's report concludes with the observation that there is "no basis for a common law claim" (Exhibit 1, p. 1167).
5. Mr Hart submits these observations and this report are significant as demonstrating absence of actual prejudice. The plaintiff had previously claimed to have had a conversation with Mr Nelson on the weekend after the accident in which Mr Nelson said that this kind of victimisation regularly happened to relief teachers. Mr Evers sets out in his affidavit that Mr Nelson himself brought a stress claim following unrelated incidents. While Mr Nelson, in his recent statement for the defendant, denies having spoken to the plaintiff or asserting that relief teachers were victimised, he does refer to a "no balls in the playground" policy which he says meant that the students should not have had a ball in the first place, a statement upon which the plaintiff proposes to rely.
6. Mr Stanton submits that the importance of this recent interview with Mr Nelson shows that Mr Nelson never had the conversation with the plaintiff previously contained in the plaintiff's chronology (namely that other relief teachers had been victimised the same way) and that this demonstrates the danger of permitting a claim where so much time had passed.
7. The role of Mr Paul Nelson in this litigation, including his contemporaneous report and the statement he very recently provided to the defendants, is of significance, but for the following reasons. 1. Mr Paul Nelson was identified by the plaintiff in his chronology as having had a conversation with him on the weekend after the accident, in the course of which Mr Nelson is asserted to have said that attacks of this kind on relief teachers were common and well-known. After reading this, the defendant's solicitors contacted Mr Nelson, who denied this, but also referred (in his January 2017 statement) to a "no balls in the playground" policy which Mr Hart stated he "absolutely" proposed to rely upon in amended particulars to the claim. 2. However, there is no reference to a "no balls" policy in the report Mr Paul Nelson completed on the day of the accident (Exhibit 1 p. 37). To the contrary, he describes how the plaintiff and the relieving teacher, Mr Brown, actually arranged for the students to play ball games if they completed their written work. Nor is there any reference to this in Mr Paul Nelson's statement during his interview on 3 December 2003, when he said that he returned to school after the incident happened to find the plaintiff was injured. He said "Mr Thomas told me that he had the students write out statements about the incident and he had informed the Relieving Principal. Mr Thomas told me that it was not intentional and the students were throwing a ball around and it hit Gower in the nose as he walked out of the classroom. I had no further dealings with Gower or the incident." (Exhibit 1 p. 1164). Even after three months, Mr Nelson has not remembered this correctly, because he in fact was responsible for disciplining Mr Zeal. 3. What these changes of evidence demonstrate is a classic example of the process of degrading and contamination of evidence over time, as described by Dawson, Gaudron and McHugh J in Queensland v J L Holdings (1996-1997) 189 CLR 146.
8. There are similar problems in relation to the evidence of the school principal, whose conduct in relation to understanding what classes the plaintiff would be able to teach and how he should be assisted or supported would be relevant if (as Mr Hart intends to do) it is to be pleaded that the plaintiff was sent to an unruly class, or that the other teacher who permitted balls to be used did so in breach of school policy. There does not appear to have been any attempt to contact either the headmaster (Mr Twible) or the teacher who made the arrangement with the plaintiff and the students for the students to play ball; what little information there is comes from the relieving headmistress who briefly replaced Mr Twible and who was herself away on the day.
9. The relieving headmistress, Ms Moody, gave the following account of what she was told about the incident (and I note that she says the plaintiff, not the teacher he replaced, arranged for the students to play ball): "Mr Gower informed me that he had set the class a task and when they had finished the task he allowed them to go to the field and play with a ball while the other students completed the assigned task. He stated that he heard a ball being hit onto a door and went to see what was happening outside the classroom. He stated that as he walked through the classroom doorway he was hit in the face with a soccer ball which stunned him and took him by surprise. He informed me that he did not feel being hit in the face was intentional but more of an accident." (Exhibit 1 p. 1171)
10. Ms Moody asked the plaintiff if he was prepared to speak with the student and they both went to do so. The plaintiff told the student "he didn't believe the student intended for the ball to hit him" (paragraph 16 of the statement) and the student said that he had had no intention of doing so and apologised.
11. Ms Moody said she made it clear to the plaintiff that the student had created an unsafe situation for him and that he was being disciplined. Full details of the disciplining of the student were given to the plaintiff and he agreed with them.
12. Ms Moody spoke to the plaintiff on about three occasions during the following week and on none of these occasions did he question the intent of the student's actions (Exhibit 1 p. 1173). Mr Twible, the headmaster, took over that responsibility when he returned to work on or about 19 September 2003.
13. The plaintiff gave a very different account of these events to his solicitor on or about 13 or 14 September 2003: "INCIDENT: On Friday September 12 '03, I was employed as a substitute teacher in the position of Electronics at West Wallsend High. During Periods 5 & 6 this particular day, I was assigned, in a theoretical capacity, to teach a group of Year 10 students. Having had an encounter with the same group two days prior, it was noted that a number of students absent that date needed to catch up on work - being to write a written response to a specific question. The option was extended to those, who felt that they had previously responded adequately, to evaluate their responses and consider elaborating further upon. Those who felt that they had done enough were allowed to quietly amuse themselves whilst the remainder concentrated on their work. A number of students chose to kick a soccer ball amongst themselves adjacent to the iron clad room's entrance of roller and conventional doors. Having taught in the room previously during the week, I noticed, due to a malfunction of the conventional door's handle, once closed would prove extremely difficult to reopen - if ever - from the inside. This realisation posed concerning and was pointed out to the Industrial Arts Head Teacher. Amongst other safety concerns, I felt that it may be probable that I find myself in a situation whereby I am locked in by a student's knowledge thereof, or unknowing actions. Upon hearing a loud intermittent noise, as if a ball kicked into a roller door, I set off to investigate the situation and calm the boys down in the process. I noticed a student's actions of seemingly attempting to close the conventional door from within. Fearing the above concerns, I quickly approached saying determinately, not to close the door. As the door was now slightly ajar, the student stood back as I grabbed the handled the poised opening it, demonstrating the malfunction and pointing out the fact that once closed would prove difficult to reopen. With the door now fully open, and being spotted by a number of students expressing the warning, "teacher! teacher!", I began to walk out amongst the congregation whilst verbally expressing myself with the words, "Come on guys, what's going on?" Now, a metre or two out from the entrance, I panned my vision left, scanning the situation. At that moment I was immediately struck in the face with considerable force by a student, of known supercilious nature, throwing a soccer ball - from relatively only two metres away. My initial split second thoughts were that this was no accident. Given to their clear view and audible awareness of my presence, by both, students and myself, I deduced the action being of deliberate calculations, with probable follow-up assault. Although stunned, I had to establish whether one or more students were involved, and to what damages I had sustained. I felt blood beginning to flow from my nose and realised vision to be somewhat blurred. I remember being extremely vigilant towards the perpetrator's body language and in so doing, interpreted his contemptuous attitude as warranting a persona indicative of a superior nature to deter any contumacy, and establish an element of unquestionable authority. With the student being recalcitrant towards repeated directives for to meet me in the Industrial Arts Office, it was a relief to see him finally secede. INCIDENT/INJURY REPORT: WEST WALLSEND HIGH - MR GOWER: Page No:2 Having eliminated the possibility of there being supporting cohorts, due to the surrounding students expressing their bemusement and angst of the perpetrator's actions and with the student now on his way, I directed the remaining students to seat themselves back in the room. I walked to the Industrial Art Block, and insisted the student to wait inside the office. In seeking the assistance of a nearby senior teacher and briefly discussing the situation, the teacher then confronted the student about his actions. With a class unattended, the teacher said that he will look after it from here by notifying the Principal, allowing me to return to the remaining students. Soon after, the bell sounded indicating lunch. Spending time alone, the benefits of doubt began to surface in the form of possible mistaken identity. It could be perceived that I did basically take the place of the student cowering behind the ajar door, and inadvertently walked straight into an ambush, intended for him. As by now, the Acting Principal arrived to check on me. We discussed the matter at length where upon I expressed the possibility of mistaken identity. However, the Principal stated that on talking to the student, he still had not shown remorse for his actions but, was in a way willing to apologise. The Principal suggested that we discuss the matter together with the waiting student, who apologised for his actions, albeit somewhat late. Although the offer for me to leave early was extended by the Principal, with only an hour or two remaining, and not knowing the full extent nor severity of my injuries, I elected to remain. CONCLUSION: At the time of writing this report, the full extent of my sustained injuries from the incident have not yet been fully determined. Upon submitting this version of events to the school, it will be accompanied by a doctor's report outlining the extent of injury sustained, as well as other relevant information pertinent to those of concern. Being of clearer mind, my initial perception of the incident, I believe, was, and is, the correct one. The benefit of the doubt diminishes and remains highly questionable, given the student's known supercilious nature towards staff and fellow students. It is also believed (fact) that the school has a known culture of students deliberately assaulting teachers, practically casual teachers, in the head by used of a ball, under the guise of accident. The report is deemed correct as a true account of events which had transpired in regard to the incident in question." (Exhibit C, Annexure B)
14. The adequacy of this evidence and availability of these witnesses form part of the defendant's claim of actual prejudice, set out in more detail below.
15. The plaintiff gave notification of the injuries he suffered to the defendant, including the psychological impact. He already had an appointment on 17 September 2003 with Dr Parmegiani, a psychiatrist, in relation to his 2000 assault claim, so he raised this incident with the doctor as well.
16. The plaintiff was referred to Robyn Douglass, a psychologist, on 9 October 2003 by his general practitioner. This brings me to the next area of actual prejudice identified by the defendant, namely that many of the records for this period (such as those of the practice for which Ms Douglass worked, as well as for her consultations with the plaintiff) are missing. This complaint is made in relation to a series of reports and documents and in particular to records for the psychiatrists and psychologists consulted by the plaintiff between 2003 and the expiry of the limitation period.
17. The plaintiff next saw a psychiatrist, Dr Vickery, on 14 November 2003, whose report is available (although it mostly deals with the 2000 assault). He also consulted a psychologist named Stephen Kreft on 18 December 2003. According to Ms Hodgkisson's affidavit (paragraph 38) Mr Kreft wrote to the defendant's solicitors to say all his records had been destroyed (Exhibit 1, p. 345). Although during the hearing some of these were located, they do not represent the entirety of those records.
18. The plaintiff saw another psychiatrist, Dr Lambeth, on 29 March 2004, who provided a report; however, according to paragraph 60 of Ms Hodgkisson's affidavit, she has not been able to serve a subpoena on him for his notes.
19. The next specialist to see the plaintiff about his psychiatric injuries and disabilities, according to the plaintiff's chronology, is Dr Parmegiani, who saw the plaintiff in June 2005. There is no suggestion that there are any missing documents in relation to Dr Parmegiani. The plaintiff's general practitioner notes over this period are also available.
20. On 8 August 2005 consent orders for the defendant to pay the plaintiff lump sum compensation of $5,000 in respect of whole person impairment of 4% were entered and his weekly benefits and s 60 expenses were discontinued. Heads of Agreement were entered into later that month by the plaintiff and the Department of Education and Training for certain payments to be made.
21. Following those orders, Dr Roth continued to provide medical certificates. In relation to his fitness for work, the plaintiff was seen by Dr Thomas on 22 March 2006, Dr Brown on 18 March 2006 and Dr Ang on 29 January 2007. During this time Dr Roth had portrayed the plaintiff as being capable of one day per week of work. However, on 22 November 2006 he reported to the insurer: "COMMENT: Shane has agreed to seek work locally as a graphic design teacher. We have negotiated that he needs a deadline for seeking work; we have agreed that if he has not been successful in gaining work by the end of June 2007, that he needs to either broaden his career options in Newcastle, or move elsewhere to seek work."
22. The "deadline" for this return to work expired after the expiry of the limitation period on 11 September 2006. The plaintiff acknowledged, in an unsigned statement provided in answers to particulars sought by the defendant's solicitors, that he was consulting a solicitor at all relevant times following the date of the accident (Mr Evers, whom he was consulting about the 2000 incident) and was aware of the three-year limitation period.
23. The defendant should thus be taken to have been mindful of the limitation expiry in September 2006. It would also have been clear to him that he had never returned to work and that if he did not meet the June 2007 deadline he was not going to be successful in returning to teaching.
24. It is also clear from Dr Roth's report of 30 March 2007 that the deadline foreshadowed in the 22 November 2006 letter was not going to be met. Dr Roth's 30 March 2007 letter said that the problem was that the plaintiff "may in fact be unfit for work and we will review that next time." Accordingly, Dr Roth provided a medical certificate on 5 July 2007 stating, for the first time, that the plaintiff was unfit for work for the following three months.
25. This was immediately acted upon by the GIO claims officer (as set out in the Employees Recurrence Report of 21 July 2007) and, on 8 August 2007, Dr Brown provided a report. He considered that the plaintiff's case was no longer one of workers compensation but that the plaintiff should be placed on a disability pension with a diagnosis of schizophrenia.
26. After a report from the plaintiff's general practitioner (28 November 2007), a Centrelink Job Capacity Assessment Report (describing his condition as fully diagnosed, treated and stabilised), the plaintiff's solicitor wrote to the defendant's insurer, GIO General Insurance, on 17 December 2007 as follows: "We refer to the above matter and note that our client has been assessed as totally unfit for work. In order that we may properly advise our client in relation to any entitlement under Section 66 and/or Section 67, it would be appreciated if you could let us have any recent medical reports in your possession from our client's treating doctors. If you have any material which identifies the worker as suffering from a permanent whole person impairment, it would be appreciated if you could share it with us. In the alternative, it would be appreciated if you could seek instructions to consent to Dr Parmegiani, the AMS who has previously examined the worker, conduct an assessment of WPI for work injury damages, Section 66 and/or commutation purposes on a joint basis. Further, we would be pleased if you could provide us with an itemised list of payments made to date." (Exhibit B, Annexure A)
27. Any doubt that the plaintiff and his solicitor, Mr Evers, were considering whether the threshold had been reached is able to be resolved from Mr Evers' telephone notes from those conversations on 8 May, 10 July and 17 December 2007. Each of these refers to "WPI 15%". The first occurs with a question mark, the second to what appears to be 15 "(1 thing)" [sic] and 17% (there is also a reference to 11% to 30%), and the third to 15%. As these are telephone attendances by Mr Evers on the plaintiff, these are clearly matters he was discussing with the plaintiff.
28. The plaintiff saw Dr Ang, a psychiatrist, who did not have the requisite qualifications to prepare an AMS report to the Workers Compensation Commission. As I understand Mr Evers' evidence in cross-examination, this was the reason for writing to the defendant effectively asking the defendant to either pay for, or contribution to, the cost of Dr Parmegiani's report. No such payment was agreed to and no application was made.
29. Dr Ang continued to see the plaintiff monthly. He provided a report dated 17 November 2008 but there is no further report until 21 December 2010.
30. Dr Bhandari's report of 10 May 2010 (Exhibit E) lists other reports; clear there is nothing after Dr Ang 17/11/2008 although Dr Ang is seeing the plaintiff monthly, according to Dr Bhandari. Dr Bhandari's report refers to earlier requests by the plaintiff's solicitor for reports from him in July 2008 and October 2009 but these reports are not provided. While ordinarily the absence of such reports in a s 151D application would not be an issue, these proceedings were listed for hearing of the entire claim, and I can assume that the plaintiff had served the medicals upon which he proposed to rely. The medical evidence between 2008 and 2010 is scant.
31. The defendant obtained injury plans and Dr Brown provided a report (followed by a supplementary report dated 10 July 2013.
32. Dr Kim Street, psychiatrist, was retained in March 2011, but did not provide his report until May 2012. This discursive report is of little assistance. The reason for delay between his consultation and report appears to be due to Dr Street's other problems as set out in Health Care Complaints Commission v Street [2014] NSWCATOD 124. I note that the parties have made submissions as to the impact of this decision, but in practical terms Dr Street's problems have very little to do with this case. The plaintiff cannot be blamed for this unfortunate gap or delay, but the delay in reporting and unreliability of the contents mean there is a further gap in the plaintiff's medical history.
33. The plaintiff then brought proceedings in the Workers Compensation Commission.

The applications in the Workers Compensation Commission

1. A brief history of the relevant Workers Compensation Commission determinations is as follows.
2. The entitlement of a plaintiff to bring proceedings for common law damages in addition to payment of workers compensation requires an assessment of whole person impairment at or above 15%. A report from Dr Julian Parmegiani dated 13 May 2012 (Exhibit B to the affidavit of Ms Hodgkisson sworn 19 December 2016) provided such an assessment. On 28 October 2013 a medical assessment certificate ("MAC") was issued by Mr Julian Parmegiani, and approved medical specialist ("AMS") on 28 October 2013. On 22 November 2013 the defendant lodged an application to appeal against that assessment, which related to the plaintiff's "whole person impairment assessment caused by psychological/psychiatric injury (of PTSD, major depression and alcohol abuse) which was caused on 12 September 2013" (Appeal Panel Findings, 13 May 2014, paragraph 12).
3. It is clear from the Appeal Panel's findings, including its summary of the determination appealed from, that the AMS and the Appeal Panel were faced with difficulties in determining these long-ago events. The principal problem the AMS had was outlined by the Appeal Panel at paragraphs 22 - 23 as follows: "22. The AMS, doubtless mindful of the contents of his two prior assessments, replicated the history contained in his earlier MACs. He gave an account of an earlier history from April 2000 whilst the claimant was working at Jesmond University High School, where he taught computing design and technology. The school was in an underprivileged area and the students suffered from behavioural problems. The claimant said he was "targeted", as he was a casual teacher. As a result of the behaviour by these disturbed students the claimant's mood deteriorated, particularly in October 2000 when he was put in a headlock. On another occasion he had to defend himself against an aboriginal female student. These problems escalated involving some of the children's parents. The Child Protection Investigation Directorate investigated, with the result that the claimant was transferred to the district head office in Adams Town where he went on sick leave. 23. Nowhere in the MAC did the AMS address the injury the subject of this referral. The impairment which the AMS was asked to assess was that that arose from the events that occurred on 12 September 2003."
4. As the AMS had made a demonstrable error, the MAC was revoked (at paragraph 30) and the Panel determined to reconsider the claim. The Panel first noted that the 12 September 2013 incident "has resulted in a catastrophic decompensation" and that the plaintiff's life since that time had one of a "deteriorating and increasingly disturbed psychiatric condition" (at paragraph 31). The AMS, who had seen the plaintiff in September 2003 in relation to the 2000 claim of psychiatric incident had providentially done so only six days after the second incident, at which stage the plaintiff's symptoms suggested the presence of a Major Depressive Disorder in partial remission (at 32), although the AMS noted the plaintiff considered his teaching days were finished as his reputation was irreparably damaged by his problems (at paragraph 36). That condition was, however, overshadowed by the plaintiff's harmful drinking from September 2003 onwards. The difficulty was that the absence of medical records made determination of the plaintiff's "constellation" (at paragraph 41) of medical condition "difficult to assess with any confidence" (at paragraph 39). Those conditions included not only the incidents that occurred to the plaintiff in 2000 (for which the defendant in these proceedings is no liable) but the contents of his departmental file.
5. The Appeal Panel concluded at paragraphs 43 - 44: "43. We note that the claimant was able to work as a school teacher for a period of six days until he was hit with the soccer ball and that his life since then has been one of deterioration and an increasingly disturbed psychiatric state. In that regard we concur with the observations of the AMS and we are satisfied that his assessment of 17% WPI was proper in the circumstances. 44. We are satisfied that because of the effluxion of time and the scarcity of contemporaneous evidence as to the claimant's level of functioning prior to 12 September 2003, and indeed the suggestion that the appellant had recovered to some considerable extent from the effects of the prior injury such that he could teach again, albeit in a restricted fashion, that an assessment of the contribution will be too difficult to make and therefore we find that the statutory deduction of 1/10th is applicable."
6. The references by the Appeal Panel to the effluxion of time and scarcity of contemporaneous evidence as to the claimant's level of functioning prior to 12 September 2003 are relied upon by the defendant as indicating the difficulties that the Appeal Panel had. The plaintiff submits that the Appeal Panel was nevertheless able to come to a determination and that the absence of these documents and lapse of time are of no forensic importance.

From the Appeal Panel to the bringing of this application

1. The plaintiff first gave notice of intention to claim work injury damages pursuant to ss 260 and 281 of the Workplace Injury Management Act 1998 (NSW) ("the WIM Act") on 2 September 2014. The defendant sought particulars on 16 September and14 October 2014 and on 10 December 2014 issued a notice pursuant to s 74 of the WIM Act denying liability, as well as sending a third request for particulars on 5 January 2015.
2. The plaintiff filed a pre-filing statement on 30 September 2015 and the defendant filed a pre-filing defence on 27 October 2015. The plaintiff's statement of claim was filed on 23 March 2016 and did not include any application for an extension of time. Nor was any notice of motion seeking an extension of time filed.
3. The defence was filed on 20 April 2016. On 1 June 2016 the plaintiff requested the solicitor for the plaintiff file a notice of motion seeking an extension of time under s 151D. That request was denied (affidavit of Ms K Hodgkisson, paragraph 71; defendant's chronology, page 2). The following day, at the status conference before the Registrar, the following consent orders were made: The Defendant is to seek further and better particulars from the Plaintiff with respect to the question of leave pursuant to s 151D of the Workers Compensation Act 1987 by 17 June 2016. The plaintiff is to respond to the Request for particulars by 15 July 2016. Confirm the Status Conference on 3 November 2016."
4. The defendant sought the particulars by the due date of 17 June 2016 but the plaintiff merely responded as follows: "We refer to your letter of 17 June 2016 and advise that full particulars will be provided once old files are retrieved from archives. We should be in a position to provide full details of the plaintiff's delay in bringing proceedings by 30 September 2016."
5. No answers to particulars were provided by this date, and on 10 October 2016 the defendant's solicitors wrote seeking a response to their letter of 17 June 2016 (affidavit of Ms Hodgkisson, paragraph 80). No reply was received.
6. There was a further status conference on 3 November 2016. The plaintiff was directed to answer the defendant's request for particulars of 17 June 2016 by 17 November 2016.
7. The plaintiff did not meet that deadline either. On 25 November 2016 the plaintiff's solicitors sent a letter which purported to be an answer to particulars, the inadequacy of which (see paragraph 85 and Exhibit Q to the affidavit of Ms Hodgkisson) is self-evident. The solicitors for the defendant replied on 2 December 2016 stating that these particulars were insufficient and again pointing out that the plaintiff still required leave under s 151D of the Act.
8. The proceedings were listed for a third time, before Registrar Arms, on 8 December 2016. The Registrar set the matter down an, according to his orders, directed the defendant to file a notice of motion "regarding the issue of the limitation period". I assume that this order was made because the plaintiff's legal representatives were still not prepared to bring a s 151D application.

The plaintiff's explanation for delay

1. As Mr Hart indicates in his opening submissions, the plaintiff's position is that he was not able to commence or prosecute any claim for damages until the AMS Appeal was determined, and that notice of the claim following this was "immediate" (outline of submissions, page 2). In addition, the refusal of the defendant to pay for (or share the cost of) a report from Dr Parmegiani should be given great weight. The plaintiff was also obliged to seek documentation under freedom of information legislation in order to formulate his claim. The plaintiff still does not have all the relevant information, and Mr Hart invites me to draw an inference that this is the fault of the defendant for not providing this information on subpoena in circumstances where such information is generally kept.

Identifying the periods of delay

1. The explanation is not the same for the whole of the nine and a half years. The periods of delay, and the plaintiff's explanation for them, fall into the following categories: 1. From 11 September 2003 until December 2007: Mr Evers' evidence is that he and his client were aware of the limitation period but that that there was no evidence that the plaintiff had reached the threshold. I note, however, Dr Ang's report of January 2007, the diary notes of Mr Evers and the request in December 2007 to the defendants to foot the bill for a report from Dr Parmegiani on this issue, all of which occurred after the expiry of the limitation period in September 2006. 2. From December 2007 until 13 May 2012: After the defendant's insurer refused to pay Dr Parmegiani's report fees Mr Hart submits there was nothing the plaintiff could do to obtain a finding he was over the threshold. Eventually the plaintiff obtained a medical report and the relevant assessment of injury over the threshold was made on 13 May 2012.. 3. 13 May 2012 to 23 March 2016: The plaintiff was obliged to go through the statutory requirements necessary before proceedings could be commenced, which occurred when the statement of claim was filed on 23 March 2016. 4. 23 March 2016 to 30 January 2017: The plaintiff does not acknowledge any delay in bringing the s 151D application after the proceedings in this court were commenced.
2. The defendant submits that the plaintiff and his solicitor were clearly discussing both the limitation period and the threshold as early as 2007, as the three diary notes produced by Mr Evers attest. The plaintiff by that time had not worked for over three years since the accident and there was no reason why, given that he was consulting Dr Ang, that he should not have sought a report from an AMS sooner. The only reason he did not seek such a report from Dr Ang was that he was not an accredited AMS.
3. I will deal specifically with two areas of delay, namely delay by reason of the requirements of the Act and delay by a solicitor.

Delay caused by the statutory scheme

1. The provisions of the statutory scheme can themselves be productive of delay, as Neilsen DCJ notes in Khamiss v Sydney Roof Masters Pty Ltd [2017] NSWDC 48. Accordingly, that period of time (unless there is some specific reason to the contrary) should not be included.

Delay caused by the solicitor

1. Mr Evers was cross-examined about the reasons for not commencing proceedings earlier. He steadfastly repeated that bringing proceedings would not be possible until the plaintiff had crossed the threshold. He relied upon his letter to the defendant's insurer in December 2007 seeking contribution to or payment of Dr Parmegiani's report costs as being all that he needed to do.
2. As a solicitor experienced in personal injury, it should have been clear to Mr Evers that the plaintiff's condition, whatever the cause, was sufficiently serious to prevent him from working. Precisely what led Mr Evers to seek a report from Dr Parmegiani almost five years later is unexplained.
3. Taking the history of the proceedings into account, I consider that there has been delay in the bringing of the s 151D application. The chronology shows that the plaintiff's solicitors refused to bring the application even after the proceedings were listed for hearing. The plaintiff's solicitors repeatedly failed to provide particulars of the statement of claim, on some occasions not even acknowledging receipt of correspondence. These delays were unreasonable and increased the costs of the defendant and, although in only a small way, contribute to the unfairness of a trial in these proceedings in that the defendant was left to guess what gaps there were in the evidence and to find these out at the trial, rather than at a separate hearing.
4. Generally speaking, delay by a solicitor in prosecuting a claim is not sheeted home to the litigant unless there is clear knowledge or authorisation of the delay. However, the most relevant aspect of the delay is the plaintiff's knowledge of the limitation period (which from the short unsigned statement provided by his solicitor in the answers to particulars, appears to suggest he knew of the limitation period at all relevant times).

Allowing the limitation period to lapse

1. The plaintiff was already represented by Mr Evers in relation to other proceedings, and was in touch with him on the weekend after the accident. As set out above, he did not sign, but must have authorised, a short statement provided to the defendants the contents of which acknowledged being informed about the limitation period, which means that he must have been aware of the lapsing of the limitation period on 12 September 2006.
2. In Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 at [91], the Court of Appeal stated: "[91] A deliberate decision to allow a statutory limitation period to expire would be a powerful factor against the grant of leave. Where a deliberate decision to allow the period to expire has been made, ordinarily it will be difficult to provide an explanation for that decision sufficiently cogent to warrant the grant of leave. There is ample authority to this effect. I have already referred to Gallo v Dawson. I shall give other examples."
3. Sheller JA noted at [4]: "[4] Ipp AJA has concluded that the appellant suffered no prejudice in consequence of the resultant delay but that the decision initially taken not to proceed at common law and allow the three year period under s 151D(2) of the Workers Compensation Act to expire were taken quite deliberately on a fully informed basis. The respondent further delayed for a significant period before changing her mind. I entirely agree that this in itself is a potent circumstance which must be taken into account and will ordinarily weigh heavily against an applicant. If the discretion was to be exercised favourably to the respondent, she was bound to give some explanation both satisfactory and pertinent to a conclusion that justice would be best served by granting her application. I agree with Ipp AJA that this she failed to do. The learned judge who heard the application failed to give due weight to this consideration and erroneously concluded that the respondent's explanation for her conduct was reasonable. In consequence of this error his Honour's discretionary function miscarried and this Court must review it. For the reasons Ipp AJA has given I agree that in the circumstances the time for beginning the proceedings should not be extended."
4. The explanation in the present case is that the plaintiff, when the limitation period expired, had not achieved the threshold for claims for economic loss. However, Dr Ang's reports at this period (particularly his January 2007 report) indicated the plaintiff's problems were serious and that he was effectively unable to work.
5. Mr Evers' letter of 17 December 2007 to the defendant's insurer was written in the knowledge that the plaintiff, who was now unfit to work, was at least reasonably likely to reach the threshold and that all that was required was an AMS report to this effect so that the necessary finding for the commencement of common law proceedings could be made.
6. Was it reasonable to take no further steps without financial contribution from the defendant for the report of Dr Parmegiani? While some degree of delay would be understandable, the plaintiff, who was on disability benefits and never worked since the accident was clearly likely to be a candidate, in the eyes of any competent personal injury solicitor, to reach a finding of this nature. The reason given for delay, namely the inability to afford a report from Dr Parmegiani, in my view, falls well short of being acceptable.
7. In March 2011, the decision was made to obtain a report from Dr Street. Although the solicitor for the plaintiff blames Dr Street for the delay which resulted in his report not being available until May 2012, its contents were clear. Moreover it was followed by a report from Dr Parmegiani which, in my view, could just as easily have been written in 2007.
8. Finally, I should note that the length of the delay is greater than that which is usually seen, in a case where there are more than the usual complexities in terms of the cause of action being a psychiatric work-related injury. For example, in Howley v Principal Healthcare Finance Pty Ltd, the period of delay was just over three years and the case was "straightforward" (at [81]).
9. Having noted the length and quality of the delay in question, I next consider the issue of whether the plaintiff can establish a prima facie case on liability.

A prima facie case on liability or a "weak case"?

1. In Howley v Principal Healthcare Finance Pty Ltd, McColl JA stated (at [52]): "Factors contributing to the justice of this case included the respondent's concession that the appellant had a prima facie case on liability. It would be otherwise if she had had a weak case, as "the apparent weakness of the plaintiff's case is a factor which militates against an extension of time": Commonwealth v Shaw [2006] NSWCA 209; [2006] 66 NSWLR 325 (at [40], [83]) per Basten JA (Handley and Ipp JJA agreeing), referred to with approval in Sea Coatings (at [51])."
2. The plaintiff's written submissions submit that the plaintiff has reasonable prospects of success on the following bases: 1. The plaintiff's expert evidence is not challenged. 2. There is "alleged notice of dangerous activity with balls, when students in area of school and not in playing exterior ground areas." This is a reference to the "no balls" policy in Mr Paul Nelson's 2017 statement. Mr Hart contends that "on the existing claim at the time of the Plaintiff's injury that demonstrates stress during lunchtime supervision, consistent with actual knowledge in the Defendant's servants" (outline of submission, page 1). 3. As to causation, the students "were not supervised in exterior of classroom" and the pupil who threw the ball was suspended. Mr Hart submits that it is not necessary to establish intent on behalf of the student, except as to the existence of risk of harm (outline of submissions, page 1). 4. In addition, Mr Hart submits that there were "no available staff to assist in supervision" and that "reasonable preventative measures were available" (outline of submissions, page 1).
3. As noted above, the plaintiff's claim is for psychiatric injury in the workplace. The approach to identification of duty and breach of duty for psychiatric injury in the workplace is set out in Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471; at [20] Spigelman CJ noted some of the difficulties in such a claim: "[20] The prospective nature of the inquiry as to breach has particular significance in the case of the risk of psychiatric injury. In any organisation, including in employer/employee relationships, situations creating stress will arise. Indeed, some form of tension may be endemic in any form of hierarchy. The law of tort does not require every employer to have procedures to ensure that such relationships do not lead to psychological distress of its employees. There is no breach of duty unless a situation can be seen to arise which requires intervention on a test of reasonableness. "
4. As to claims for psychiatric injury due to work stress, Spigelman CJ warned, at [24]: "[24] It does appear that over recent decades the helping professions and the pharmaceutical industry have medicalised many of the normal stresses of everyday life, including working life. The law has not expanded legal responsibility for conduct in the same way. Koehler makes it clear that the common law of Australia will not do so, failing to follow such developments in other common law jurisdictions." [Emphasis added]
5. These issues are not reflected in the particulars of negligence in the statement of claim; there are no particulars of, for example, intervention being required on a test of reasonableness. Teaching adolescents is one of many stress-creating professions where there is a risk not only of workplace issues but also actual physical injury. The inquiry as to breach in the present case would focus upon the circumstances of the first injury, the plaintiff's subsequent return to the workforce (which did not take place until August 2003, although he had been certified fit six months earlier), the suitability of the school and/or classes allocated to him and the headmaster's and department's plans for his activities in the West Wallsend School.
6. It is unclear from the evidence, as well as the pleadings, what the plaintiff's case will be on these issues. For example, he appears to have proposed the ball game activities himself (which may be relevant to a defence of contributory negligence).
7. The vagueness in the plaintiff's case as pleaded unfortunately corresponds to the periods of time during which the defendant complains of actual prejudice. As is set out below, the defendant's two most significant claims of prejudice relate to gaps in the plaintiff's medical history during and shortly subsequent to the second assault (see below) and the absence or unavailability of witnesses such as the headmaster. There are causation issues arising in relation to his ongoing symptoms over the next decade.
8. Mr Stanton points also to the extreme generality of the statement of claim and the plaintiff's failure to give evidence, reminding me that, unlike Howley v Principal Healthcare Finance Pty Ltd, this is not a case where the defendant concedes a prima facie case and relies only on presumptive prejudice, and that the plaintiff's failure to provide an affidavit in those circumstances must weigh heavily against there being any finding that the plaintiff has even a prima facie case.

The failure of the plaintiff to give evidence

1. As previously noted, the plaintiff did not give evidence, although a statement he provided to his solicitor in September 2003 was tendered through his solicitor, Mr Evers, who was cross-examined.
2. Mr Hart submits that Mr Evers' evidence is sufficient, relying upon Howley v Principal Healthcare Finance Pty Ltd (at [26] and [54]-[58]), where the Court of Appeal set aside a refusal to extend time which had been made on the basis that the plaintiff had failed to provide an affidavit.
3. In the present case, the plaintiff was seeing a solicitor at the time of the accident. It is clear from Mr Evers' evidence that there were discussions between him and Mr Evers about meeting the threshold, the limitation period expiry and the necessary information for preparation of the case. Is it necessary, in those circumstances, for the plaintiff to provide an affidavit as well?
4. While the requirement under s 151D(2) that an applicant should ordinarily lead evidence does not mean that the applicant must personally give such evidence, that does not mean that this is acceptable in a case such as the present. In Howley v Principal Healthcare Finance Pty Ltd, the solicitor's evidence explained why the plaintiff had not consulted a solicitor beforehand, and there was no need for an explanation from the plaintiff as to why she had not consulted one earlier; similarly, her explanation that she was attempting to work despite being in pain was evident from the medical material (at [26] and [56]-[58]).
5. Independently of the plaintiff's failure to provide an affidavit, I am satisfied that his case is weak. His failure to provide an affidavit only further underlines the inadequacies of a case which is generally pleaded and for which the particulars appeared to change as the application for extension proceeded.
6. This brings me to the issue which dominated this application and is the subject of the six folders of material attached to Ms Hodgkisson's affidavit, namely the defendant's submission that leave should not be granted on the basis that actual, not presumptive, prejudice arose from missing documents and witnesses.

The parties' submissions on actual prejudice

1. Mr Stanton, whose client bears the onus on this issue, submits that this is not a case where the plaintiff can assert that, as he claimed workers compensation benefits and was paid since the accident, the defendant is not prejudiced by reason of having the opportunity to medically assess his psychological state over the years. The plaintiff was paid workers compensation only until 2008 (affidavit of Ms Hodgkisson, paragraph 6). The loss of relevant treatment records is the first basis upon which the defendant (upon whom the onus rests) submits that there cannot be a fair trial of the issues.
2. The plaintiff's submissions may be summarised as follows: 1. Most, if not all, of the records of Mr Roth, the plaintiff's general practitioner, are in fact available and before the court; 2. All of the documents relating to the 2000 injury, as well as to the plaintiff's initial medical treatment, are before the court, including what the defendant calls "the interplay of the subject injury, as to diagnosis and incapacitation in 2007" (plaintiff's précis of submissions on s 151D, p 1); 3. There is a s 40 assessment in 2007 leading to the findings of total incapacitation in accordance with Dr Roth's certificate; 4. The accuracy of the medical evidence for the plaintiff is not challenged.

The defendant's complaints of missing medical records

1. I have read the list of medical practitioners whose records are unavailable (as set out in the affidavit of Ms Hodgkisson at paragraphs 98, 99, 102 and 104). The absence of records from Dr Jerrold (a dentist, who was struck off and went to jail), Dr Benney (who is dead), Dr Boey (who is retired) are in my view irrelevant. However, as I have set out in my summary of relevant factual material at the commencement of this judgment, the main problem is that the plaintiff consulted a series of psychiatrists and psychologists between 2003 and 2007 where the records produced by those practitioners are incomplete. In addition, the plaintiff consulted psychologists and psychiatrists about the 2000 incident, such as a psychologist named Mr Scherf about the 2000 incident. His records, according to Mr Stanton's oral submissions, are missing.
2. After the plaintiff's workers compensation payments ceased in 2008, he was treated by his general practitioner, whose ability to diagnose his psychiatric condition must be seen within the confines of his lack of specialist expertise. Expert reports in relation to the plaintiff's condition, as summarised in the plaintiff's chronology and contained in the tender bundle in Exhibit A, are scant from the end of 2007 onwards. There is a reports from Dr Ang dated 17 November 2008 but his next report is not until 21 December 2010. The next report is Dr Brown's on 11 April 2011. The next in the time sequence is the report of Dr Street in May 2012.
3. Over a period of approximately four years, all that is able to be produced is a patchy series of reports from psychiatrists, at least one of which (Dr Street's report) is of no value. When added to the difficulties of the missing reports for the period immediately following the second assault (2003 - 2005) and the other events in the plaintiff's life (which included an assault in about 2004), the result is that the prospects of any fair trial of this poorly pleaded and weak claim, in relation to causation and damages, starts to diminish.
4. I am satisfied that the defendant is disadvantaged in relation to the absence of records of psychiatrists and psychologists over the period 2003 to 2005, and by the dearth of reports, from 2008 onwards and that this amounts to actual prejudice.

The defendant's complaints of missing witnesses

1. The plaintiff's claim as formulated is one of psychiatric injury resulting from the failure of West Wallsend High School to have "better managed to ensure that until he had regained confidence in his ability to relate to and control adolescent pupils, he would only be allocated to classes or groups that were known to not present significant disciplinary problems or engage in any unruly behaviour" (report of Dr Neil Adams, 29 September 2014, Exhibit A). In particular, great weight is placed on the plaintiff having been advised by a teacher from the school that such assaults had occurred against other teachers in the past, suggesting that this kind of behaviour was known in the school. This comes from the entry in the plaintiff's earlier chronology (which I gather was provided to Judge Balla in January 2017) which stated: "Paragraph 7 Weekend: Contacted by Paul Nelson, who advised the plaintiff that the school had been under audit for similar injuries, not the first time it had happened. Client prepares incident "statement"." (Affidavit of Ms Hodgkisson, Exhibit 1, p 2605)
2. This paragraph was withdrawn from the chronology handed up to me in these proceedings. Mr Paul Nelson has since provided a statement to the defendant saying that he never had such a conversation. While I treat that with considerable caution, since I regard the evidence of Mr Nelson as being unreliable generally due to the effluxion of time, its inclusion and then removal from the chronology is troubling.
3. I also note that the "statement" that the plaintiff refers to making must be the statement the text of which is set out (in part) earlier in this judgment. There is an additional note in that statement, after the description of the events in question, as follows: "Latter [sic] that evening in a relaxed home environment, a general overall feeling of numbness subsided to a throbbing pain, particularly along the bridge of the nose, seemingly behind the right eye, forehead and cheek areas, with the nose slightly hemorrhaging. On closer inspection, I would consider my nose to be somewhat disjointed at the bridge with a noticeable dropping of the nose formation, to the right underside, between the two nostrils. I thought to rough it out until I could make an appointment with my doctor. However, being now Saturday, with the vision not seeming right, coupled with a gritty feeling to the right eye's inner front surface and a pressure feeling behind the right eye within the socket, more concerns arose. Latter [sic] that night, 2am, I awoke to a further bout of hemorrhage from the nose, compiling further concerns. Latter [sic] Sunday evening I thought best to seek an After Hours doctor's opinion. In doing so, It [sic] was established that my nose had sustained trauma, and to establish what extent, was provided a referral to an X-Ray clinic." (Exhibit C, Annexure B)
4. If the plaintiff had in fact had the conversation with Mr Nelson which was the basis for the chronology entry, it is hard to understand why he would not have included such a salient piece of information in his September 2003 statement, which was prepared for his solicitor, particularly since he added the additional material about his weekend activities as a footnote and the conversation with Mr Paul Nelson is said to have occurred on that same weekend.
5. The actual prejudice caused to the defendant by Mr Nelson being obliged to recall events more than 13 years ago is considerable. However, there is a greater prejudice, in that the conduct to which Mr Adams refers is conduct of the headmaster. Ms Moody, who was present on the day, was merely filling in for the headmaster, Mr Twible. Neither side appears to have spoken to Mr Twible; although Mr Stanton told him that he would get back to me about whether he knew Mr Twible's whereabouts, he never did. As the chronology of events shows, the plaintiff had been returned to teaching and allocated to classes prior to Ms Moody coming to perform a temporary acting role. The allocation of the plaintiff to teaching particular classes must have been done by Mr Twible.
6. Another witness whose opinion or input would be of particular relevance would be the teacher the plaintiff was replacing, Mr Brown, as, according to the welfare review, Mr Brown and Mr Gower jointly organised the playing of ball games. Mr Brown's whereabouts are unknown. The same is the case with Mr Thomas, who not only assisted the plaintiff in his injuries but collected the classes and the witnesses so they could give statements. I understand that these statements cannot now be located; the plaintiff blames the defendant for this and refers me to departmental procedure as identified in New South Wales v Jackson [2007] NSWCA 279; State of New South Wales v Jackson [2008] HCATrans 193.
7. The defendant points to other difficulties with the evidence; Mr Zeal, the student who threw the ball, refuses to contact them, Mr Gunn, the student in the 2000 incident is dead, and that other witnesses are asserted to be difficult to find or reluctant to respond. Mr Hart responds that the defendant has the investigation results and the contemporaneous statement of the relieving Head, Ms Moody.
8. While Ms Moody has provided a statement and the investigative file provides a great deal of information, it is far from being the whole picture. Those documents concentrate upon an investigation of the incident in question, not the arrangements made in order to help the plaintiff return to work in a constructive fashion.
9. A finding of actual prejudice is not lightly made. In the present case, however, the cumulative effect of the absence of certain of the medical records and certain of the witnesses whose evidence would indicate what the plaintiff's return to work conditions were, how the ball came to be being used by the students, and whether the class in question was in fact a noisy class unsuitable for the plaintiff to teach appears to be unavailable.
10. The actual nature of the evidence likely to be given can be seen from the contents of Dr Adams' report. While I note the defendant's submissions as to the inadmissibility of this report pursuant to s 318 Workplace Injury Management and Workers Compensation Act 1998 (NSW), it is clear that, whether his report goes in or not, the factual material set out in it about the teaching arrangements would be the kind of evidence to be led at trial and the kind of evidence the defendant would need to lead in response clearly identifies the persons responsible for the plaintiff's graduated return to work, the headmaster who arranged this and allocated the classes (Mr Twimble) and other teachers at the school.
11. In Itek Graphix Pty Ltd v Elliott, Ipp AJA stated at [88]: "[88] I have pointed out that the justice of the case is to be determined by its own individual circumstances. Often, a failure satisfactorily to explain the delay will not be decisive. Ordinarily, the issue of prejudice will be of paramount importance: Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 at [34] - [36]; Malone v New South Wales National Parks and Wildlife Service [2001] NSWCA 345 at [9]. Nevertheless, the justice of the case may be such that the failure to explain the delay and to prosecute the case with the requisite diligence will result in an extension of time being refused."
12. In ASB-Tech Services Pty Ltd (In Liquidation) v Doeland [2003] NSWCA 167 at [36], Hodgson JA stated: "[36] ... In fact, the test to be applied is whether it is fair and just that an extension be granted, and the strength of the explanation and the degree of presumptive and actual prejudice are matters to be taken into account, together, in coming to a conclusion on this question. Where the prejudice is such that a fair trial is unlikely, it will as a general rule not be fair and just to grant the extension. However, where there is prejudice falling short of this, that prejudice will still weigh in the assessment, and is a matter to be considered along with the adequacy of the explanation in making the ultimate determination."
13. Mr Stanton drew to my attention other witness problems, including Nathan Zeal's refusal to speak to the defendant's solicitors, the death of Mr Gunn, the student involved in the 2000 assault, the uncertainty about whether Mr Don Nelson was also a participant in these events and the missing student statements. The six volumes of material collected by Ms Hodgkisson contain other examples of difficulties in preparation for the hearing, including evidence of the delay of the plaintiff's solicitors in refusing to bring the s 151D application earlier.
14. In considering the evidence of actual prejudice, I have restricted my findings only to the clearest and most obvious examples. Where possible, I have construed delays (such as the problems caused by Dr Street) in the plaintiff's failure and I have disregarded other issues (such as the lack of information about the 2004 assault) entirely. This is because the test in s 151D is that of "the interests of justice". The plaintiff suffered real and frightening injuries and had only just returned to work after an extended period of leave following what was clearly a serious assault. Courts have accepted that the nature of his injuries and his level of distress very likely contributed to his delay in that this kind of "avoidant" behaviour is not uncommonly found in applications such as the present.
15. The difficulty is that the evidence of actual prejudice extends over almost a decade, relates to all aspects of the claim and is difficult to rebut where the explanations by the plaintiff's solicitors are scant and the plaintiff has elected not to provide an affidavit of explanation. Regrettably, therefore, I must accept the defendant's submission that there is substantial evidence of actual prejudice in all aspects of the plaintiff's claim.
16. Even if the evidence of actual prejudice were insufficient of itself to warrant, it would still weigh in the assessment and be a matter to be considered along with the adequacy of the explanation in making the ultimate determination, for the reasons explained by Hodgson JA in ASB-Tech Services Pty Ltd (In Liquidation) v Doeland at [36]. The plaintiff's difficulty is that the evidence of actual prejudice is but one of a series of findings which I have made which militate against any fair trial of these proceedings being possible.

Conclusions

1. I am satisfied that a fair trial is not merely unlikely but impossible, and that it will not be fair and just, or in the interests of justice, to grant the extension of time for the reasons set out above, which I summarise as follows: 1. The plaintiff was advised of the limitation period by his solicitor and deliberately allowed it to expire (Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 at [4] and [91]); 2. The plaintiff has not provided a full or satisfactory explanation of his reasons for delay (ASB-Tech Services Pty Ltd (In Liquidation) v Doeland at [36]) and the explanation of his solicitor is insufficient and unpersuasive (Howley v Principal Healthcare Finance Pty Ltd at [44] - [46]); 3. The apparent weakness of the plaintiff's case is a factor which militates against an extension of time (Commonwealth v Shaw [2006] NSWCA 209; [2006] 66 NSWLR 325 at [83]); and 4. There is substantial evidence of actual prejudice in relation to all aspects of the cause of action (liability, causation and quantum) in the form of missing witnesses and documents.
2. Individually and in combination, each of the above is sufficient, on the facts of this case, for the plaintiff's application to extend the limitation period for nine years, six months and twelve days to be refused.

Orders 1. Order 1 of the defendant's notice of motion filed 19 December 2016 granted. 2. The plaintiff's notice of motion filed on 30 January 2017 seeking an extension of time under s 151D Workers Compensation Act 1987 (NSW) dismissed. 3. These proceedings struck out and dismissed. 4. Plaintiff pay defendant's costs of the notices of motion and of the proceedings. 5. Liberty to apply in relation to costs. 6. Exhibits remain with the file until further order.

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 May 2018