Gower v State of New South Wales

Court of Appeal (NSW)|2018-04-03|Before: Basten JA, White JA

on: [2017] NSWDC 60 Date of Decision: 24 March 2017 Before: Gibson DCJ File Number(s): 2016/99383

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant, Mr Shane Gower commenced proceedings in the District Court on 23 March 2016 claiming work injury damages in respect of an injury suffered on 12 September 2003. The injury occurred when Mr Gower was struck by a soccer ball thrown by a student at the high school where he was employed as a casual teacher. Mr Gower suffered psychological injury, being a major depressive disorder. After his injury, Mr Gower was the subject of various assessments of his psychological condition, none of which, prior to May 2012, assessed him as having reached the 15 per cent permanent impairment threshold that would entitle him to recover work injury damages under s 151H of the Workers Compensation Act 1987. On 13 May 2014 (over 10 years after the injury), Mr Gower received a medical assessment certificate that found that his degree of permanent impairment was at least 15 per cent. District Court proceedings were commenced less than two years after this date. The issue for Mr Gower was that under s 151D of the WC Act a claim must be brought within three years after the date of injury except with the leave of the court. The appellant filed a notice of motion seeking this leave. The respondent filed a notice of motion seeking orders that the proceedings be struck out. In rejecting the appellant's notice of motion, and striking out and dismissing the proceedings, the primary judge, Gibson DCJ summarised her decision on four bases: (a) The appellant was advised of the limitation period by his solicitor and deliberately allowed it to expire; (b) The appellant has not provided a full or satisfactory explanation of his reasons for delay and the explanation of his solicitor is insufficient and unpersuasive; (c) The apparent weakness of the plaintiff's case is a factor which militates against an extension of time; and (d) There is substantial evidence of actual prejudice in relation to all aspects of the cause of action in the form of missing witnesses and documents. Mr Gower appealed to this Court on the grounds that her Honour had erred in reaching the conclusions above and that the discretion to extend time should be exercised.

The Court (per Basten JA and White JA, Simpson AJA dissenting) dismissed the appeal and held:

Error had been established (per White JA and Simpson AJA, Basten JA contra)

In relation to (a) and (b) (per White JA and Simpson AJA): The primary judge acted on a wrong principle in determining the case on the basis that Mr Gower had been advised of the limitation period and had not provided a satisfactory explanation for his reasons of delay. It was not unreasonable for the appellant to wait until he had reached the 15 per cent threshold: [96]-[104], [231]-[238], [247].

In relation to (c): Per White JA, whilst the claim is a weak claim, it raises a real issue of fact to be determined and could not be summarily dismissed on that basis: [149]. Per Simpson AJA, it has not been shown that the primary judge erred in taking into account the weakness of the case. The weakness of the case is not, however, sufficient of itself to justify refusing the application: [251]. Dey v Victorian Railways Commissioners (1949) 78 CLR 52; Spencer v The Commonwealth (2010) 241 CLR 118; Strasburger Enterprises Pty Ltd t/a Quix Food Stores v Serna [2008] NSWCA 354 applied.

In relation to (d): Per White JA, actual prejudice was only established in respect of one witness: [162]. The respondent's evidence concerning the lack of availability of witnesses and documents does not otherwise establish prejudice: [170]. Per Simpson AJA, no actual prejudice existed, the impediments in the way of the respondent making an adequate defence to the claim are relatively insignificant: [252]-[243]. Prince Alfred College Inc v ADC (2016) 258 CLR 134; Itek Graphix Pty Limited v Elliott (2002) 54 NSWLR 207; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Holt v Wynter (2000) 49 NSWLR 128; South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477; Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347; Strasburger Enterprises Pty Ltd t/a Quix Food Stores v Serna [2008] NSWCA 354 considered.

Basten JA contra: No error could be established. A correct understanding of the statutory scheme supported the reasons of Gibson DCJ as the appellant could have brought his claim within time. If the appellant had made a claim for lump sum compensation, it would have resulted in time being suspended for work injury damages whilst the degree of permanent impairment was not fully ascertainable: [5], [23].

The discretion to grant leave should not be exercised (per White JA, Simpson AJA dissenting) The apparent weakness of the appellant's case (which is highly material to the discretion), the prejudice to the respondent arising from the delay, and the absence of any earlier notice of an intention to make a work injury claim justified refusing the discretion. The presumption of prejudice arising from the passage of 14 years and the respondent's being able to deal with the evidence is strong: [150], [190]-[191]. Commonwealth of Australia v Shaw (2006) 66 NSWLR 325 applied.

Judgment

BASTEN JA: Pursuant to s 151D of the Workers Compensation Act 1987 (NSW), a claim for work injury damages cannot be commenced more than three years after the date on which the injury was received, without leave of the court. The appellant, Shane Gower, suffered an injury when working as a casual teacher at West Wallsend High School on 12 September 2003. He was struck by a soccer ball thrown by a student, resulting in a broken nose. He later suffered a psychological injury, identified as a major depressive disorder.
Unless time was suspended for one of the reasons set out in s 151DA of the Workers Compensation Act, the appellant could not bring proceedings absent leave of the court after 11 September 2006. Proceedings were in fact commenced (without leave) by service of a statement of claim in the District Court on 23 March 2016. Unsurprisingly, this step led to a motion by the respondent to strike the proceedings out and, on 30 January 2017, a motion filed on behalf of the appellant seeking leave to commence the proceedings, such leave to be effective from 23 March 2016. The respective motions were heard on 16 and 17 March 2017 by Gibson DCJ, judgment being delivered expeditiously on 24 March 2017. The judge dismissed the application for an extension of time and, consequentially, struck out and dismissed the proceedings. She provided comprehensive and carefully structured reasons in support of those orders. [1]
An application for leave to appeal was granted on 8 September 2017. The notice of appeal, filed on 28 September 2017 contained 11 grounds of appeal, most of which blithely asserted that findings of fact made by the trial judge were "incontrovertibly wrong".
To obtain leave to commence proceedings out of time, the appellant needed to establish three propositions, namely that: 1. there was a sufficient and acceptable explanation for each period of delay; 2. he had a reasonably arguable claim of negligence against the State, and 3. the conduct of a trial more than 12 years after the injury was suffered would not cause the State significant prejudice, so as to render the trial unfair.
While identifying error in the judgment below, White JA has concluded that the appeal should be dismissed because the appellant failed to give notice of his intention to claim damages at the earliest reasonable time, the appellant's case on liability was not strong and there was prejudice to the State arising from the delay. These are sufficient reasons to dismiss the appeal, the appeal being by way of rehearing in this Court. However, because the case appears to have been formulated on a misunderstanding of the statutory scheme, I am further satisfied that Judge Gibson did not err in a material respect in her reasons. To explain why that is so it is not necessary to address the various challenges to the findings of fact, to which the reasons of White JA sufficiently respond. Rather it is necessary to address the statutory scheme for injured workers to claim statutory compensation and work injury damages.

Statutory scheme for compensation and damages

The underlying assumption of the appellant's case was that he could not realistically commence proceedings for damages until he had obtained a medical assessment that he suffered a degree of permanent impairment of at least 15%. He alleged that his inability to obtain a medical assessment certificate to that effect earlier than he did flowed from the requirements of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the Workplace Injury Act") which provides the exclusive statutory mechanism for such medical assessments. The appellant submitted that no such assessment could be obtained until an approved medical specialist was satisfied that the degree of permanent impairment was "fully ascertainable", as provided by s 322(4) of the Workplace Injury Act.
Each of these propositions was legally incorrect. It is true that the system for claiming both compensation and work injury damages is complex; however, the appellant was legally represented at all stages, and by the same solicitor.
The first step is to give notice to the employer pursuant to s 254 of the Workplace Injury Act. That was done. The second step is to make a claim pursuant to Ch 7, Pt 2, Div 2 of the Workplace Injury Act, without which compensation cannot be recovered. [2] A claim was made and the appellant obtained weekly payments of compensation and medical expenses over many years.
In addition to weekly payments and the recovery of medical and hospital expenses, amongst other benefits, the Workers Compensation Act provides for compensation for non-economic loss, pursuant to Pt 3, Div 4. Section 66, within that Division, provides for compensation for permanent impairment. The manner in which it does so will be discussed below.
Section 151A of the Workers Compensation Act provides, broadly speaking, that recovery of damages from an employer will prevent the recovery of further compensation payments, and the amount of weekly payments of compensation already received will be deducted from the damages. There are significant constraints imposed on the quantum of damages which are recoverable with respect to a work injury, those constraints being set out in Pt 5, Div 3 of the Workers Compensation Act. These provisions discourage many persons from pursuing claims in negligence in circumstances where the worker is in receipt of compensation payments. The two primary factors underpinning that proposition are the exclusion of damages other than for past and future economic loss (pursuant to s 151G), and the unavailability of any damages unless the injury has resulted in at least a 15% permanent impairment, pursuant to s 151H(1).
Against this background, it is convenient to refer to the procedural regulations imposed by the Workplace Injury Act. First, pursuant to s 280A, "[a] claim for work injury damages in respect of an injury cannot be made unless a claim for lump sum compensation in respect of the injury is made before or at the same time as the claim for work injury damages." It is necessary to understand the effect of this provision, because the appellant suggested that he could not make a claim for lump sum compensation until he had obtained a medical assessment certificate as to the degree of his permanent impairment.
As noted above, the entitlement to lump sum compensation arises under s 66 of the Workers Compensation Act. That provision has been amended on a number of occasions since the injury suffered by the appellant in September 2003. However, at all stages the section has provided that "[t]he amount of permanent impairment compensation is to be calculated under this section as it was in force at the date the injury was received." [3] Accordingly, it is necessary to have regard to the form of s 66 as in force on 12 September 2003, which was, relevantly, as follows: 66 Entitlement to compensation for permanent impairment (1) A worker who receives an injury that results in permanent impairment is entitled to receive from the worker's employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act. (2) The amount of permanent impairment compensation is to be calculated as follows: (a) if the degree of permanent impairment is not greater than 10%, the amount of permanent impairment compensation is to be calculated as follows: (b) if the degree of permanent impairment is greater than 10% but not greater than 20%, the amount of permanent impairment compensation is to be calculated as follows: … where D is the number derived by expressing the degree of permanent impairment as D%. (3) The amount of permanent impairment compensation is to be calculated under this section as it was in force at the date the injury was received.
It may be seen that the entitlement to some amount of lump sum compensation under s 66, at the time the injury was suffered, was not dependent upon establishing any particular degree of permanent impairment. Since 27 June 2012 the entitlement is conditioned upon the permanent impairment being greater than 10%; there is, however, no requirement, even now, that the claimant have a medical assessment certificate at the time an application for lump sum compensation is made.
When a person makes a claim for lump sum compensation, the person on whom the claim is made (usually the employer or its insurer) must respond by accepting or disputing liability. [4] In particular, the person must notify the claimant "as to whether or not the person accepts that the degree of permanent impairment of the injured worker resulting from the injury is sufficient for an award of damages." [5] The reference to "damages", but not to compensation, no doubt reflects the fact that when s 281 first took this form, in 2001, there was no limit on the entitlement to lump sum compensation.
Where there is a dispute as to the threshold for an award of damages, the following provisions of the Workplace Injury Act applied, as at September 2003: [6] 313 Threshold dispute prevents service of pre-filing statement and commencement of court proceedings If there is a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages, the claimant cannot commence court proceedings for the recovery of work injury damages and cannot serve a pre-filing statement under Division 3 unless the degree of permanent impairment has been assessed by an approved medical specialist under Part 7. 314 What constitutes threshold dispute (1) For the purposes of this Part, there is considered to be a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages if: (a) the person on whom the claim is made has not accepted that the degree of permanent impairment of the injured worker resulting from the injury is at least 15%, or (b) there is a dispute as to whether the degree of permanent impairment resulting from the injury is fully ascertainable. Note. Under section 322(4), an approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until satisfied that the degree of permanent impairment is fully ascertainable. (2) There is considered to be no dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages if: (a) the person on whom the claim is made has accepted that the degree of permanent impairment of the injured worker is at least 15%, or (b) an approved medical specialist has given a medical assessment certificate certifying that the degree of permanent impairment of the injured worker is at least 15%.
These provisions appear in Div 2 of Pt 6 of Ch 7; as appears from s 313, there is a further constraint on commencing court proceedings, namely the requirement to serve a pre-filing statement, pursuant to Div 3. However, as that course cannot be taken until the degree of permanent impairment has been assessed by an approved medical specialist, that requirement only arises after resolving the threshold dispute. (A pre-filing statement was, eventually, served in this case.)
Part 7 of the Workplace Injury Act provides for medical assessments. It is convenient to note the following definition: 319 Definitions In this Act: … medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim: … (c) the degree of permanent impairment of the worker as a result of an injury, … (f) whether impairment is permanent, (g) whether the degree of permanent impairment of the injured worker is fully ascertainable.
Pursuant to s 321(1), a medical dispute may be referred for assessment at the request of a party to the dispute. Importantly for present purposes, s 322 relevantly stated in 2003: 322 Assessment of impairment (1) The assessment of the degree of permanent impairment of an injured worker for the purposes of the Workers Compensation Acts is to be made in accordance with WorkCover Guidelines issued for that purpose. … (4) An approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until the approved medical specialist is satisfied that the impairment is permanent and that the degree of permanent impairment is fully ascertainable. Proceedings before a court or the Commission may be adjourned until the assessment is made.
To say that an assessment of impairment cannot be made until the impairment has stabilised is an imprecise reflection of s 322(4), for two reasons. First, the test is whether the impairment is "full ascertainable", which may or may not involve stability or absence of fluctuation. Secondly, whether or not the impairment is full ascertainable is a matter to be determined by the approved medical specialist; clearly that cannot occur until a claim has been made, a dispute has been identified and the dispute referred for assessment. A finding by another medical specialist that the impairment is not fully ascertainable is not a precondition either to the making of a claim, or referral for assessment.
It is also true that s 322(4) does not preclude the approved medical specialist making an assessment if satisfied that the impairment is not fully ascertainable, but merely provides a power ("may") to decline to make such an assessment. However, the assessment was to be made, pursuant to s 322(1), in accordance with WorkCover Guidelines, [7] which imposed a requirement not to proceed if the degree of impairment is not fully ascertainable. [8] (It is not necessary to consider whether the guideline prevailed, pursuant to s 322(1), over the terms of s 322(4). [9] )
It is then necessary to return to the terms of s 281 of the Workplace Injury Act to note the time periods for the determination of liability with respect to a claim: 281 Liability to be accepted and settlement offer made (1) The person on whom a claim for lump sum compensation or work injury damages is made must, within the time required by this section, determine the claim by: (a) accepting liability and making a reasonable offer of settlement to the claimant, or (b) disputing liability. (2) A claim must be so determined: (a) within 1 month after the degree of permanent impairment first becomes fully ascertainable, as agreed by the parties or as determined by an approved medical specialist, or (b) within 2 months after the claimant has provided to the insurer all relevant particulars about the claim, whichever is the later.
It is apparent that, where the degree of permanent impairment is not fully ascertainable, in the opinion of the approved medical specialist, the claim will remain on foot, undetermined, until it becomes fully ascertainable. It is then necessary to return to the limitation period identified in s 151D of the Workers Compensation Act and to note the periods during which time does not run. So far as relevant and as in force in September 2003, s 151DA, provided as follows: 151DA Time not to run for commencement of proceedings in certain cases (1) Time does not run for the purposes of section 151D: … (a) while a medical dispute as to whether the degree of permanent impairment of the injured worker is at least 15%, or whether the degree of permanent impairment of the injured worker is fully ascertainable, is the subject of … a referral for assessment under Part 7 of Chapter 7 of the 1998 Act …. … (5) A medical dispute is considered to be the subject of a referral for assessment under Part 7 of Chapter 7 of the 1998 Act even if the approved medical specialist has declined to make an assessment of the degree of permanent impairment of the injured worker until satisfied that the degree of permanent impairment is fully ascertainable.
It is apparent from the legislative scheme that no claim for work injury damages need be brought outside the limitation period because there is doubt about whether the degree of permanent impairment suffered through the injury is yet fully ascertainable. The limitation period will be suspended. No doubt there will be cases where the injury is not revealed within the three year limitation period, but this was not this case. The appellant has not worked since the incident on 12 September 2003; that is clearly not the result of his broken nose. Why he did not make a claim within time was a matter about which one can only speculate. The trial judge inferred it was a deliberate forensic decision; it was not necessary to take that step, but it was not material to the outcome.
In June 2005 Dr Parmegiani, consultant psychiatrist, saw the appellant and concluded that, following the incident of 12 September 2003, he had been "rendered totally unfit for work". [10] That report also concluded that the injuries were "not yet at maximum medical improvement" and that "[i]f he were to undergo specialist treatment in relation to his drinking, stabilisation will occur within three to six months." He did not think the impairment was permanent. [11] There was perhaps some irony in the fact that Dr Parmegiani, being the consultant for whom the appellant later sought funding from the respondent for a further assessment, thought he would improve, a view confirmed by Dr Bhandari, also a consultant psychiatrist, in May 2010. In fact his condition appears to have deteriorated over time. A further report was in fact obtained from Dr Parmegiani in October 2013, of which the primary judge said that it "could just as easily have been written in 2007." In any event, the failure to make a claim within the period was unexplained.
It is, of course, possible that even had a claim been made within the three year period, proceedings would not have been commenced until after that period. However, that possible source of unavoidable delay can carry little weight. First, had a claim been made at an early point, the State would have been on notice from that moment that it faced the prospect of work injury damages proceedings. Secondly, in the case of a medical dispute, it was a matter for the approved medical specialist to determine whether or not the claimant's condition was fully ascertainable and, if so, the level of permanent impairment. When that would have occurred cannot be said.
For these additional reasons, I agree with the orders proposed by White JA.
WHITE JA: This is an appeal from orders of the District Court (Gibson DCJ) of 24 March 2017 dismissing the appellant's application for an extension of time under s 151D of the Workers Compensation Act 1987 (NSW) (the "WC Act") for the bringing of proceedings for work injury damages and dismissing the appellant's proceeding. Leave to appeal was granted on 8 September 2017.
The appellant (Mr Shane Gower) commenced proceedings in the District Court on 23 March 2016 claiming damages in respect of an injury suffered on 12 September 2003 and its consequences. On 12 September 2003 Mr Gower was employed as a casual teacher at the West Wallsend High School when he was struck by a soccer ball thrown by a student. The blow broke his nose and he underwent surgery for its repair. Mr Gower suffered psychological injury, being a major depressive disorder. On 13 May 2014 an Appeal Panel established pursuant to s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the "WIM Act") issued a medical assessment certificate pursuant to s 328(5) of the WIM Act that assessed Mr Gower as having 15 per cent whole person impairment as a result of the injury. That assessment (the validity of which is not challenged) is conclusively presumed to be correct as to the degree of permanent impairment of Mr Gower as a result of the injury suffered in the course of his employment on 12 September 2003 (WIM Act, s 326(1)(a) and (d)).
Section 151D(2) and (3) of the WC 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."
Subsection 151H(1) of the WC Act provides: "151H No damages unless permanent impairment of at least 15% (1) No damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%. Note. Section 322 of the 1998 Act provides that the assessment of the degree of permanent impairment is to be made in accordance with Workers Compensation Guidelines. That section also provides that impairments that result from the same injury are to be assessed together."
Twelve and a half years elapsed between Mr Gower's sustaining his physical injury and his commencement of proceedings. To assess whether the discretion of the primary judge not to extend time under s 151D(2) miscarried, and to assess the significance of the delays in this case, an understanding of the procedural hurdles for bringing a claim for work injury damages is essential.
Section 151DA of the WC Act sets out periods for which time does not run for the purposes of s 151D. Section 151DA relevantly provides: "151DA Time not to run for commencement of proceedings in certain cases (1) Time does not run for the purposes of section 151D: (a1) while the determination of the claim concerned is delayed as permitted by section 281 of the 1998 Act, but not including delay beyond 2 months after the claimant has provided all relevant particulars about the claim as required by section 281 (2) (b) of that Act, or Note. Delay in determining a claim beyond 2 months is only permitted on the basis that degree of permanent impairment is not fully ascertainable and the insurer has notified the claimant of this. In such a case, paragraph (a) of this subsection can apply (if a dispute about whether degree of permanent impairment is fully ascertainable is the subject of medical assessment) to further prevent time running for the purposes of section 151D. (a) while a medical dispute as to whether the degree of permanent impairment of the injured worker is at least 15%, or whether the degree of permanent impairment of the injured worker is fully ascertainable, is the subject of a referral for determination by the Commission or a referral for assessment under Part 7 of Chapter 7 of the 1998 Act (including any further assessment under section 329 of that Act), or (a2) during the period of 1 month after an offer of settlement is made to the claimant pursuant to the determination of the claim as and when required by the 1998 Act, or (a3) while an assessment under Part 7 of Chapter 7 of the 1998 Act in respect of a medical dispute referred to in paragraph (a) is the subject of a pending appeal under section 327 of the 1998 Act, or (b) while a pre-filing statement served in accordance with section 315 of the 1998 Act in respect of the claim concerned remains current. (2) A pre-filing statement remains current from the time it is served until it is struck out under this section on the application of the person (the defendant) on whom it was served or it is withdrawn by the person who served it, whichever happens first. (3) The defendant may apply to the President to have the pre-filing statement struck out by order of the President. Such an application may not be made until at least 6 months have elapsed after the defendant served on the claimant a defence to the claim in accordance with section 316 of the 1998 Act. (4) The President may order that a pre-filing statement be struck out but must not do so if satisfied that the degree of permanent impairment of the injured worker is not yet fully ascertainable and the matter is the subject of a referral under Part 7 of Chapter 7 of the 1998 Act for assessment of the degree of permanent impairment of the injured worker. (5) A medical dispute is considered to be the subject of a referral for assessment under Part 7 of Chapter 7 of the 1998 Act even if the approved medical specialist has declined to make an assessment of the degree of permanent impairment of the injured worker until satisfied that the degree of permanent impairment is fully ascertainable. …"
The periods excluded by s 151DA for the purposes of s 151D do not include the period between the suffering of an injury and the time at which the degree of permanent impairment arising from the injury can be ascertained. In this case it was not until almost six years after the limitation period had expired that Mr Gower or his solicitor could reasonably have formed an opinion that Mr Gower could be awarded damages if he were able to establish a common law right to damages arising from the injury he suffered on 12 September 2003.
As the note to s 151H of the WC Act states, s 322 of the WIM Act provides that the assessment of the degree of permanent impairment is to be made in accordance with Workers Compensation Guidelines. The WIM Act closely regulates steps that an injured worker wishing to claim damages from his or her employer for injury suffered in the course of employment must take before proceedings for the recovery of such damages can be commenced. Work injury damages are defined as: "work injury damages means damages recoverable from a worker's employer in respect of: (a) an injury to the worker caused by the negligence or other tort of the employer …" (WIM Act, s 250(1)) An "injury" means (relevantly) a personal injury arising out of or in the course of employment (WIM Act, s 4).
A claim for work injury damages in respect of an injury cannot be made unless a claim for lump sum compensation in respect of the injury is made before or at the same time as the claim for work injury damages (WIM Act, s 280A). A claim for damages can be made before payment of permanent impairment compensation, but damages cannot be recovered unless and until any permanent impairment compensation to which the worker is entitled has been paid (WIM Act, s 280B). A claim for permanent impairment compensation is a claim for compensation as a lump sum under s 66 of the WC Act. (Definition of "permanent impairment compensation", WIM Act, s 4). From the commencement of the Workers Compensation Legislation Amendment Act 2012 (NSW) on 27 June 2012 and at all later times material to the present case, the effect of s 66 was that to be entitled to lump sum compensation, an injured worker had to have suffered permanent impairment greater than 10 per cent. Section 66(1A) (introduced by the 2012 amending Act with effect from 27 June 2012) provides that only one claim can be made for permanent impairment compensation in respect of an injury.
Prior to the 2012 amendments to s 66, lump sum compensation was payable under the section on a sliding scale, depending upon whether the degree of permanent impairment was less than 10 per cent, between 10 per cent and 20 per cent, between 20 per cent and 40 per cent, between 40 per cent and 75 per cent or more than 75 per cent.
Sections 313 and 314 of the WIM Act provide: "313 Threshold dispute prevents service of pre-filing statement and commencement of court proceedings If there is a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages, the claimant cannot commence court proceedings for the recovery of work injury damages and cannot serve a pre-filing statement under Division 3 unless the degree of permanent impairment has been assessed by an approved medical specialist under Part 7. 314 What constitutes threshold dispute (1) For the purposes of this Part, there is considered to be a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages if: (a) the person on whom the claim is made has not accepted that the degree of permanent impairment of the injured worker resulting from the injury is at least 15%, or (b) there is a dispute as to whether the degree of permanent impairment resulting from the injury is fully ascertainable. Note. Under section 322 (4), an approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until satisfied that the degree of permanent impairment is fully ascertainable. …"
"Medical disputes" are to be determined by an approved medical specialist being a medical practitioner appointed under Pt 7 of Ch 7 of the WIM Act or, on appeal from a certified medical assessment, by an Appeal Panel (ss 319, 321, 325 and 327). A medical dispute to be determined under Pt 7 of Ch 7 is relevantly defined in s 319 as: "medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim: (a) the worker's condition (including the worker's prognosis, the aetiology of the condition, and the treatment proposed or provided), (b) the worker's fitness for employment, (c) the degree of permanent impairment of the worker as a result of an injury, (d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion, (e) the nature and extent of loss of hearing suffered by a worker, (f) whether impairment is permanent, (g) whether the degree of permanent impairment of the injured worker is fully ascertainable."
A medical dispute involves a dispute between a "claimant" and the person on whom the claim is made. "Claimant" is defined in s 4 as a person who makes or is entitled to make a "claim". "Claim" is defined in s 4 as: "claim means a claim for compensation or work injury damages that a person has made or is entitled to make."
It is only if a person has made a claim for compensation or work injury damages that that person is a "claimant" whose claim can give rise to a medical dispute (Izzard v Dunbier Marine Products (NSW) Pty Ltd [2012] NSWCA 132 at [145] per Barrett JA). An injured worker who is in doubt as to whether or not his or her injury gives rise to the requisite degree of permanent impairment for the purpose of making either a claim for lump sum compensation under s 66 of the WC Act or a claim for work injury damages, or who is in doubt as to whether his or her degree of permanent impairment can be ascertained, is not entitled to an advisory opinion by submitting such a question as a medical dispute for determination under Pt 7 of Ch 7.
Court proceedings for the recovery of work injury damages cannot be commenced until a claim for the damages has been made (WIM Act, s 262). A claim for compensation or work injury damages must be made in accordance with the applicable requirements of the Workers Compensation Guidelines (s 260(1)). Section 260(2) of the WIM Act provides: "260 How a claim is made … (2) The Workers Compensation Guidelines may make provision for or with respect to the following matters in connection with the making of a claim: (a) the form in which a claim is to be made, (b) the manner in which a claim is to be made, (c) the means by which a claim may be made, (d) the information that a claim is to contain, (e) requiring specified documents and other material to accompany or form part of a claim, (f) such other matters as may be prescribed by the regulations."
Guidelines issued on 21 December 2001 provided: "6.11 To make a claim for permanent impairment or lump sum damages the worker must provide relevant particulars about a claim. Relevant particulars about a claim are full details of the following, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant's full entitlements on the claim. The relevant particulars to be provided to the insurer are: ... 6.11.2 all impairments arising from the injury; and ... 6.11.5 information relevant to a determination as to whether or not the degree of permanent impairment resulting from the injury will change."
Those guidelines were replaced by new guidelines published in the Gazette on 27 October 2006. Part 6 of the WorkCover Guidelines published on 27 October 2006 dealing with the making and handling of a claim for work injury damages provided: "2. Particulars of the Claim and Evidence Relied Upon To make a claim for WID the worker must provide particulars about the claim and the evidence to be relied upon. This must include: ● details of the injury to the worker caused by the negligence or other tort of the employer ● degree of assessed WPI ● evidence of the negligent act/s of the employer ● economic loss that is being claimed as damages. Reference section 282 of the 1998 Act. 3. Where Whole Person Impairment not Fully Ascertainable Court proceedings for WID must be commenced within 3 years after the date on which the injury was received. Reference section 151D of the 1987 Act. Where this time limit is reached but the WPI for the injured worker is not fully ascertainable, the worker should make a claim for WID setting out the particulars of the claim and the evidence to be relied upon as per clause 2 above, with the exception of the degree of assessed WPI."
As noted above at [35], s 280A of the WIM Act provides that a claim for work injury damages in respect of an injury cannot be made unless a claim for lump sum compensation in respect of the injury is made before or at the same time as the claim for work injury damages. The Guidelines published on 27 October 2006 also prescribed the requirements for the making of a claim for lump sum compensation. In respect of injuries suffered after 1 January 2002 Part 5 of the Guidelines provided that the claim must include the following relevant particulars: "2.9 all impairments arising from the injury 2.10 whether the condition has reached maximum medical improvement 2.11 the amount of whole person impairment assessed in accordance with the WorkCover Guides for the Evaluation of Whole Person Impairment 2.12 a medical report completed in accordance with the WorkCover Guides for the Evaluation of Whole Person Impairment by a medical specialist with qualifications and training relevant to the body system being assessed who has been trained in the WorkCover Guides. If there is more than one impairment that requires assessment by different medical specialists, one specialist must be nominated as lead assessor and determine the final amount of whole person impairment"
The 2006 Guidelines were replaced by new Guidelines effective from 1 October 2012. The provisions quoted above from the 2006 Guidelines were repeated (cll 7.2 and 7.3 in respect of work injury damages and cl 6.2.2 in respect of lump sum compensation).
Before commencing proceedings Mr Gower was required to serve a pre-filing statement in accordance with s 315 of the WIM Act. Section 315(1) provides: "315 Requirement for pre-filing statement before commencing court proceedings (1) Before a claimant can commence court proceedings for the recovery of work injury damages, the claimant must serve on the defendant a pre-filing statement setting out such particulars of the claim and the evidence that the claimant will rely on to establish or in support of the claim as the Rules may require. Note. Section 314 prevents a pre-filing statement being served if there is a dispute as to whether the degree of permanent impairment is sufficient for an award of damages."
In the present case as explained below, there was a dispute as to whether Mr Gower had suffered a degree of permanent impairment that reached the 15 per cent threshold. By reason of s 313 (not s 314 as set out in the note to s 315) a pre-filing statement could not be served until that dispute was resolved.
Section 318 relevantly provides: "318 Parties limited to pre-filing statement and defence (1) For the purposes of court proceedings on a claim for work injury damages: (a) the claimant is not entitled to file a statement of claim that is materially different from the proposed statement of claim that formed part of the pre-filing statement served by the claimant, except with leave of the court, and … (d) a party to the proceedings is not entitled to have any report or other evidence admitted in the proceedings on the party's behalf if the report or other evidence was not disclosed by the party in a pre-filing statement or defence served under this Division, except with leave of the court. (2) The court is not to grant leave under this section unless satisfied that: (a) the material concerned was not reasonably available to the party when the pre-filing statement or defence was served, and (b) the failure to grant leave would substantially prejudice the party's case. …"
As explained below, ss 315 and 318 are relevant in assessing the prima facie strength or weakness of Mr Gower's claim. The prima facie strength or weakness of that claim is a relevant consideration in the exercise of the discretion under s 151D of the WC Act as to whether to allow or refuse an extension of time.
Before a claimant can commence court proceedings a claim for work injury damages must be referred to mediation (WIM Act, s 318A).
From Mr Gower's perspective the key dates are as follows: 12 September 2003 Injury at West Wallsend High School on being struck in the face by a soccer ball; 9 June 2005 Medical assessment certificate by Dr Parmegiani (an AMS) that Mr Gower had not reached maximum medical improvement; 17 December 2007 Request by Mr Gower's solicitor to insurer for a joint referral to Dr Parmegiani for an whole person impairment assessment. There was no response to that request; 10 May 2010 Report of Dr Bhandari (an AMS) to the effect that Mr Gower had not yet reached maximum medical improvement; May 2012 Report by Dr Street opining that Mr Gower had an whole person impairment of 41 per cent; 26 June 2012 Service of claim for lump sum compensation; 26 August 2013 Determination by an arbitrator of the Workers Compensation Commission that Mr Gower had received "primary psychological/psychiatric injury in the form of Post-Traumatic Stress Disorder, Major Depression and Alcohol Abuse in the course of the employment with the respondent on 12 September 2003" and that his claim for lump sum compensation be remitted to the Registrar for referral to an Approved Medical Specialist. 28 October 2013 Medical assessment certificate issued by Dr Parmegiani 13 May 2014 Medical assessment certificate issued by the Appeal Panel following appeal by the respondent; 2 September 2014 Service of notice of a claim for work injury damages; 10 December 2014 Service by insurer of s 74 notice declining liability for claim for work injury damages; 30 September 2015 Service of pre-filing statement; 29 February 2016 Mediation before the Workers Compensation Commission; 23 March 2016 Service of statement of claim in the District Court.

Proceedings were commenced less than two years after it was finally determined that Mr Gower had suffered a degree of permanent impairment that would entitle him to recover damages if he could establish that his employer was negligent. But under s 151D(2) time ran from the date of injury. [12] The injury relied on by Mr Gower is psychological, not physical, injury, but it is clear that his psychological injury arose either at the same time as or very shortly after his physical injury. [13]
Under s 151DA(1)(a1) of the WC Act time did not run for the purposes of s 151D between 2 September 2014 when Mr Gower served a notice of claim for work injury damages and 10 December 2014 when the insurer served a s 74 notice declining liability. (The insurer made a request for additional particulars of the claim that was responded to on 14 October 2014 and the s 74 notice was served within two months of the provision of those particulars.) Pursuant to s 151DA(1)(a) and (a3) time did not run for the purposes of s 151D whilst the dispute as to the degree of permanent impairment was the subject of referral for determination by the Commission and referral for assessment under Pt 7 of Ch 7 of the 1998 Act including further assessment by the Appeal Panel under s 329 of the WIM Act. The commencement of that period is not identified. The period ran until 13 May 2014. Time stopped running when the pre-filing statement was served on 30 September 2015 (s 151DA(1)(b)).
The primary judge noted that the limitation period expired on 11 September 2006 and considered that the extension of time sought was nine and a half years (para [11]). It is arguable that was an error, and the extension required was less than that to take account of the periods when time did not run pursuant to s 151DA(1)(a1), (a) and (a3). That was not a ground of appeal. The question is academic in this case. It may be that the extension of the limitation period by s 151D(2) by s 151DA is directly relevant only to the calculation of the three-year limitation period in s 151D(2) (but cf. Ryan v Forstaff Engineering Personnel Pty Ltd [2011] NSWSC 1009 at [27]-[29] per Barr AJ). Even if that be so, the periods excluded by s 151DA must be considered in the exercise of the discretion to extend time under s 151D(2). That is, if time has to be extended, then whether the extension required is X days or X-Y days (Y days being periods covered by s 151DA) the discretion whether to extend time will be informed by all material circumstances, including the reasons for delay occasioned by compliance with WIM Act procedures.

Reasons of the primary judge

There were two notices of motion before the primary judge. First in point of time was the respondent's notice of motion filed on 19 December 2016 which sought an order that the statement of claim be struck out. The respondent's notice of motion did not seek an order that the proceedings be dismissed. However, the basis of the notice of motion was that the appellant's claim was barred by s 151D. No notice of motion had been filed by Mr Gower seeking leave under s 151D. Mr Gower's position was that an extension of time under s 151D could be sought at the hearing. Pursuant to directions given by Balla DCJ he was required to file, and did file, a notice of motion seeking leave pursuant to s 151D, nunc pro tunc, to commence the proceedings out of time.
The primary judge summarised the allegations of negligence contained in the statement of claim. As explained further below, these are very general. However, the respondent's application to strike out the statement of claim was not based upon the deficiencies of the pleading, but on the expiry of the limitation period.
The primary judge quoted a passage from Gallagher Bassett Services NSW Pty Ltd v Murdock [2013] NSWCA 386 that: "…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."
The primary judge noted that s 151D(2) does not set out specific criteria to be taken into account when exercising the discretion to extend time, but confers a broad discretion according to what is fair and just or what the justice of the case requires. Her Honour referred to statements of principle in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 and observed that if the delay resulted in significant prejudice that would make the chances of a fair trial unlikely, the court should not permit the action to be brought (at [15]) (citing South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477; Commonwealth of Australia v Smith [2005] NSWCA 478 at [128]; and Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 at [96]). The primary judge said (at [16]) that: "…[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[able] 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."
Later in the primary judge's reasons her Honour applied what was said by this Court in Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 at [91] that: "[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."
The primary judge summarised the reports of the circumstances of the plaintiff's injury and the reports and statements obtained in 2003 in relation to the injury. At the time the Government Insurance Office (the GIO) was the statutory workers' compensation insurer of the Department of Education and Training. Mr Gower sought workers' compensation shortly after being struck by the soccer ball on 12 September 2003. The GIO arranged for an investigation of the circumstances. Ms Olney, a personnel support officer with the Department of Education and Training told the GIO on 4 November 2003 that she was "… extremely worried that this will turn into a large claim given his previous claims history". That previous claims history arose from an event in October 2000 when Mr Gower had been employed as a casual teacher at Jesmond University High School where he was assaulted by students. Dr Parmegiani had found that Mr Gower was totally unfit for work from 13 November 2000 to April 2001 and had suffered a partial incapacity from April 2001 until 12 September 2003.
The primary judge summarised the reports obtained in 2003 through the investigation conducted for the GIO at that time. Her Honour also referred to medical treatments and assessments of Mr Gower from 2003 and summarised the history of the proceedings in the Workers Compensation Commission leading to the conclusion of the Appeal Panel of 13 May 2014 that Mr Gower had suffered 15 per cent whole person impairment as a result of the injury suffered on 12 September 2003. Her Honour noted that Mr Gower first gave notice of intention to claim work injury damages on 2 September 2014 and summarised the sequence of events leading up to the commencement of the proceedings. The primary judge summarised her reasons for refusing the extension sought as follows: "122 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: (a) 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]); (b) 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]); (c) 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 (d) 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. 123 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."
For the reasons which follow I consider that the primary judge erred in the first two conclusions referred to at [122] of her Honour's reasons and made errors of fact in relation to the latter two grounds. The discretion must be re-exercised. However I would not extend time.

Medical assessment of Mr Gower's impairment

On 13 November 2003 Mr Gower was seen by a consultant psychiatrist, Dr Vickery, to whom he was referred by the GIO. Dr Vickery reported that Mr Gower had initially described being hit in the face by the football as an accident, but had later stated that it was an assault. Dr Vickery said: "When I questioned Mr Gower in relation to this anomaly, he stated that he did not want 'Chinese whispers, they might think that we were having a party…' and felt that people may have 'misinterpreted' his meaning. He stated that 'the school and the Police did nothing' however the Police were not called and the school considered it was an accident. His statements concerning the incident did not appear to be rational."
Dr Vickery opined that: "Mr Gower initially believed the incident was an accident and continued teaching for the rest of the day without any significant distress. Some time later his paranoid belief system convinced him that the incident was an assault. He demonstrated no signs of PTSD at the time however his longstanding general anxiety and paranoid ideation continued to impair his confidence and his competence as it had for the previous 3 years. There was no evidence of any clinically significant psychopathology arising from the football incident."
On 18 December 2003 Mr Gower was seen by a psychologist with the NSW Anxiety/Disorder Treatment Centre, a Mr Stephen Kreft. He opined that Mr Gower was suffering genuine post-traumatic stress disorder. He had significantly elevated symptoms of paranoia.
On 25 March 2004 Mr Gower was seen by a psychiatrist, Dr Lambeth, who diagnosed Mr Gower as suffering from a moderate degree of depression and anxiety that he termed Adjustment Disorder with Depressed and Anxious Mood. Dr Lambeth opined that the incident on 12 September 2003 reactivated and exacerbated unresolved feelings about his time at Jesmond High School. Dr Lambeth did not attempt an assessment of the degree of permanent impairment arising from the injury.
On 9 June 2005 Dr Parmegiani observed that Mr Gower had developed alcohol abuse. He said that alcohol abuse was a recognised psychiatric disorder and he had no information to suggest that Mr Gower suffered alcohol abuse before the incident of 12 September 2003. He said the temporal relationship between the incident and the development of alcohol abuse suggested there was a causal relationship. He said that Mr Gower would need to be reassessed for the presence of a major depressive disorder. Dr Parmegiani noted that WorkCover guidelines for the evaluation of permanent impairment required psychiatric injuries to have stabilised before permanent whole person impairment could be rated. That had not happened. He had not undergone treatment for his alcohol abuse.
On 8 August 2005 Dr Joseph Scoppa certified that Mr Gower had suffered a four per cent whole person impairment as a result of his physical injuries to his nose and teeth from the incident on 12 September 2003. (This assessment was made before the insertion of s 322A in the WIM Act that provides that there can be only one assessment made of the degree of permanent impairment of an injured worker. Section 322A was introduced in 2012.)
On 27 January 2006 Mr Gower saw a consultant psychiatrist, Dr Ang. He reported to Mr Gower's general practitioner, Dr Roth, that Mr Gower suffered from a major depressive disorder as well as significant anxiety problems and agoraphobia. He said that: "Even though there has been some resolution to his case, there is still an outstanding issue to be resolved. Allegations levelled at him about his relationship to students have not been resolved. Consequently Shane feels this continues to be a slur on his reputation."
Dr Ang recommended exercise.
On 18 March 2006 a consultant psychiatrist, Dr Phillip Brown, engaged by GIO, opined that Mr Gower's presentation was that of many undiagnosed schizophrenics, but there was an insufficient basis on which to diagnose schizophrenia. He said that Mr Gower had a generalised anxiety disorder that included a fear of high school students. Dr Brown considered that Mr Gower did not have a major depressive disorder. He was unable to express an opinion as to whether Mr Gower would be suited for employment and said that this should be the subject of a work trial. Dr Brown said that: "In my opinion he remains a diagnostic problem. He either has a Generalised Anxiety Disorder with a fear that there could be further allegations or assaults should he return to teach at a High School or he has Schizophrenia. In the case of the former there is some chance that with psychological support he may return to some form of teaching other than high school students provided there is an opportunity for such. However, in the case of the latter at the best he would be able to work in some less stressful employment. … There is also the issue of whether his psychological condition is the result of his work. In this regard Schizophrenia is a constitutional condition and even if an episode was precipitated by work stress, its continuation is not the result of such but it is a psychological constitution. In which case he should be on a Disability Pension if he is unable to do any work. If he has a GAD then if he has been the subject of malicious allegations then his GAD is the result of his employment if it was not present before the Jesmond High School problem."
It would necessarily follow from Dr Brown's opinion that in the doctor's view it could not be said at that time whether or not the injury suffered by Mr Gower from the incident of 12 September 2003 caused him to be permanently impaired to a degree of 15 per cent. Dr Brown was uncertain whether Mr Gower's psychological damage was attributable to his employment.
On 14 June 2006 Dr Ang reported to Dr Roth "As you know, Shane seems to be improving in recent times, to the extent that you considered he may be able to go back to work." Dr Ang discussed work options and noted that Mr Gower realised that being a classroom teacher long-term might not be the best option for him, but there might be other avenues for employment in the Department of Education. Dr Ang said: "I have noticed through his mental state that he is less anxious and preoccupied overall. Although he is still hypervigilant that the Insurer is still going to cause him problems at some stage."
On 20 November 2006 Dr Ang reported that Mr Gower "… seems reasonably stable at the moment, although he experiences Anxiety and Depressive symptoms from time to time." He reported that on Mr Gower's plans to return to work one day per week as a casual teacher and that Mr Gower had said that he was hopeful that work would be forthcoming in the area of his expertise.
On 18 December 2006 Mr Gower's general practitioner, Dr Paul Roth, reported to GIO that it could be years if ever that Mr Gower ever achieved his ability to perform pre-injury duties as a school teacher. He said that in his opinion Mr Gower's employment was still the main cause of his mood disorder and that that mood disorder was only slowly responding to treatment as was his anxiety disorder.
Dr Ang provided a report to the GIO on 29 January 2007 on Mr Gower. He said: "Diagnosis: … My opinion is that Mr Gower developed symptoms of Panic Disorder with Agoraphobia, Post Traumatic symptoms and a recurrence of a Major Depressive Episode following the assault at Jesmond High School. My opinion is that employment with the Department of Education - OHS unit is the cause of Mr Gower's current symptoms, because he was employed by the Department at the time of the assault. These symptoms arose following the assault. There were no other factors at the time to account for these symptoms. The Worker's Present Capacity for Employment: Mr Gower may be fit to try his Pre-Injury duties again. However I would restrict this to the specific Subject of Graphic Design Teaching. This ideally would be with senior students who have chosen this as an Elective. They are more likely to be better behaved and motivated students. In any attempt to return to work, I would limit it to 1 day a week [with no extra-curricular activities eg. lunch duty etc] and no more than 6 hours of classroom teaching initially. This would need to be reviewed at 2 weekly intervals by his General Practitioner. Prognosis: It is difficult to estimate when Mr Gower will improve. Things are relatively stable at the moment, although given specific stressors, these symptoms could recur. It is likely that Mr Gower will retain some symptoms of Panic Disorder and Post Traumatic symptoms into the longer term. However Mr Gower will continue to learn ways to cope with these symptoms, which will allow him to function better. My Opinion is that there has been an aggravation of the previous condition in 2000, as a result of a Work-related injury in 2003. Although the aggravation is temporary, it is likely Mr Gower's psychological symptoms will fluctuate."
Dr Ang was not asked to provide an opinion as to Mr Gower's degree of permanent impairment. He was not an approved medical specialist for the purposes of the WIM Act.
On 13 July 2007 a psychologist, Mr Brendan Groeneveld, provided a report to the GIO in relation to Mr Gower's ability to earn in some suitable employment (s 40A of the WC Act). Mr Groeneveld said that Mr Gower would appear to be suited to working as a university tutor, a university lecturer or a private primary/secondary school tutor, but based on the limited information available to him, the impact of Mr Gower's psychological condition remained uncertain with regard to the specific number of hours and days which he would be capable of undertaking. No opinion can be discerned from Mr Groeneveld's report as to the degree of Mr Gower's permanent impairment.
Mr Gower was seen again by Dr Brown who gave a report to the GIO dated 8 August 2007. Dr Brown considered that Schizophrenia was the more likely diagnosis than a Generalised Anxiety Disorder but said that he had no way of being certain of this. He found insufficient symptomatology to diagnose a post-traumatic stress disorder. He opined that: "… if Mr Gower was subject to unmerited and malicious allegations at Jesmond High School, then his psychological condition was precipitated by this. If it is a GAD then it is reasonable to attribute its continuation to his employment. If it is schizophrenia then its continuation is the result of his psychological constitution. Thus in the absence of accepting a diagnosis of schizophrenia, his psychological condition would be a GAD and if he had no anxiety symptoms before and if the incident at Jesmond High School was of serious allegations which were untrue and not the result of his own behaviour that in my opinion his GAD would be the result of his employment."
Dr Brown said that Mr Gower should be medically retired as unsuitable to return to his employment as a teacher, but other than this he considered the problem to be that Mr Gower was not prepared to do any work other than what he wanted. He considered that any schizophrenia would be chronic and any GAD was not of sufficient severity to prevent his working full-time other than as a teacher.
On 6 December 2007 Dr Brown reported to the GIO that he calculated Mr Gower's whole person impairment due to the injury as one per cent due to his phobia of aggressive students.
On 17 December 2007 Mr Gower's solicitor, Mr Evers, wrote to GIO asking to be provided with any recent medical reports the GIO had from Mr Gower's treating doctors. He wrote: "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, to conduct [to] an assessment of WPI for work injury damages, section 66 and/or commutation purposes on a joint basis."
Mr Evers deposed that his request was not agreed to by the scheme agent.
At some time, although it is not clear when, Dr Brown's reports were provided to Mr Evers.
On 2 June 2008 Dr Ang reported to a Dr Chandler that Mr Gower continued to have anxiety and mood swings related to his finances as well as general hypervigilance with strangers. He said that this was related to his traumatic experience when assaulted at school. He was hypervigilant around strangers and suspicious that people might attack him.
On 17 November 2008 Dr Ang reported to Dr Chandler that Mr Gower was less depressed than he once was, but was still quite hypervigilant, particularly around children whose behaviour he found challenging. Dr Ang continued to see Mr Gower in 2009, but his reports do not throw any additional light on the issues relevant to the present case.
On 10 May 2010 a psychiatrist, Dr Pavan Bhandari, provided a report to Michael Evers & Co. Dr Bhandari recorded that Mr Gower had been initially referred in early 2008 for the purposes of independent psychiatric evaluation and had been reviewed on three occasions: 5 April 2008, 10 June 2008, and 15 July 2008. He was subsequently reassessed in October 2009. The delay in reporting was due to the non-receipt of payment. Dr Bhandari was an approved medical specialist for the purposes of the WIM Act. His conclusion in his report of 10 May 2010 was: "Mr Gower reported symptoms consistent with a Major Depressive Disorder. His symptoms appear to have improved. Mr Gower's functioning also appears to have improved. Mr Gower has not returned to employment and the reasons for this remain unclear. I note that his treating psychiatrist has suggested that a return to work would be reasonable, however, it is unclear whether attempts to undertake this have been implemented. … … His functioning does not appear to have improved in line with the improvement in symptoms reported by both Mr Gower and his treating psychiatrist. The reasons for this require further consideration. Mr Gower's condition appears to have continued to improve. Given the improvements reported since 2008 to 2009, it appears that there will be further improvements in the future. It appears that the treatment Mr Gower is currently receiving is appropriate, however, it is unclear whether attempts have been undertaken to assist Mr Gower with a return to employment. Mr Gower's depressive symptoms appear to have had a significant impact upon his capacity to return to his pre-injury duties. It is unclear whether other factors may be impacting upon Mr Gower's presentation and the delay in returning Mr Gower to employment. Mr Gower's presentation has been complex and extensive information has been reviewed. I note there have been a number of differing opinions regarding Mr Gower's diagnosis, presentation and reasons for his behaviours. Mr Gower's condition does not appear to have achieved maximum medical achievement, when last reviewed." (Emphasis added.)
Accordingly, as at 10 May 2010 Mr Evers had the opinion of an approved medical specialist from which it would be inferred that the degree of Mr Gower's permanent impairment from the 2003 injury could not be ascertained because his condition did not appear to have achieved maximum medical improvement.
On 11 April 2011 Dr Brown saw Mr Gower again. He said that he did not suspect Mr Gower of malingering or exaggerating his symptoms or falsifying their cause. He said that his presentation was that of many undiagnosed schizophrenics and he considered that schizophrenia was the more likely diagnosis than a generalised anxiety disorder but he had no way of being certain of this (this was Dr Brown's earlier comment that he italicised), but indicated that his opinion should still be taken as being salient unless he indicated otherwise. In his 2011 report Dr Brown reaffirmed his opinion that schizophrenia was the more likely diagnosis and that there was insufficient symptomatology to diagnose a post-traumatic stress disorder.
Mr Gower retained Dr Kim Street, psychiatrist, in March 2011. Dr Street's report was not provided until May 2012. The primary judge found (at [52]) that Mr Gower could not be blamed for this delay. The respondent did not challenge that finding. It was Dr Street's opinion that Mr Gower was severely impaired. He said: "He has lost almost all of his long-term friendships. It would be impossible for him to form a long-term relationship. … His deficit with concentration is obvious in brief conversation. Various clinicians have documented his rambling discourses. At times he rants. … He is totally impaired. He cannot work at all." Dr Street assessed Mr Gower's permanent impairment at 41 per cent.
Mr Gower made a claim for compensation under the WC Act for permanent impairment and for pain and suffering (s 67). The claim itself is undated, but it appears from a letter from Allianz Australia Insurance Ltd of 11 July 2012 that the claim was made on 26 June 2012. The insurer rejected the claim by its letter of 11 July 2012.
On 26 August 2013 an arbitrator of the Workers' Compensation Commission determined that Mr Gower had received "primary psychological/psychiatric injury in the form of post-traumatic stress disorder; major depression; and alcohol abuse in the course of the employment with the respondent on 12 September 2003". The arbitrator remitted the matter to the Registrar for referral to an approved medical specialist. Only an approved medical specialist could determine the degree of permanent impairment arising from the injury incurred in the course of employment (ss 313 and 314). The degree of Mr Gower's permanent impairment following his injury was disputed. He had been seen again by Dr Brown on 10 July 2013. Dr Brown again assessed his whole person impairment at one per cent. He said that whilst Mr Gower had a permanent psychological condition which, if not schizophrenia, depending on one's preferences could be called generalised anxiety disorder or post-traumatic stress disorder, that was due to the problems at Jesmond High School and the soccer ball incident at West Wallsend High School, nonetheless the permanent impairment component of his condition that was attributable to those to factors, which was the result of work injuries, was a whole person impairment of one per cent.
Dr Brown's opinion was not accepted by the approved medical specialist to whom the dispute was referred, Dr Parmegiani, nor by the Appeal Panel. It appears that on 28 October 2013 Dr Parmegiani issued a medical assessment certificate. That certificate is not in the appeal books. According to the decision of the Appeal Panel, the present respondent appealed from that assessment. The Appeal Panel issued the medical assessment certificate referred to earlier in these reasons. It is conclusively presumed to be correct as to, relevantly, the degree of permanent impairment of Mr Gower as a result of the injury he sustained in 2003 and that his degree of impairment is permanent (WIM Act, s 326(1)(a) and (d)).
The primary judge noted that the explanation proffered by Mr Gower for the delay in commencing proceedings was that when the limitation period expired he had not achieved the threshold for claims for economic loss. The primary judge referred to reports from Mr Gower's treating psychiatrist up to January 2007 that indicated that Mr Gower's problems were serious and that he was effectively unable to work. The primary judge considered that the opinion obtained by Mr Gower from Dr Street in May 2012 that was followed by a report from Dr Parmegiani to the effect that Mr Gower had suffered a psychological injury that exceeded the permanent impairment threshold could just as easily have been obtained in 2007 (at [83]). The primary judge said (at [82]): "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."
The primary judge's decision involved the exercise of a discretion to which the principles in House v The King (1936) 55 CLR 499 apply. However, in so far as the primary judge determined the case on the basis that Mr Gower had been advised of the limitation period and had not provided a satisfactory explanation of his reasons for delay, she acted on a wrong principle. The primary judge did not expressly say that the plaintiff should have given notice of a claim in 2007. It appears from her Honour's judgment (at [43]-[47]) that she thought the plaintiff was then in a position to bring proceedings. At [74] her Honour said that Mr Evers as an experienced solicitor should have known that Mr Gower's condition, whatever its cause, was sufficiently serious to prevent him from working. That was not the question.
The primary judge erred in holding that the opinion obtained from Dr Street in May 2012 or the medical assessment certificate given by Dr Parmegiani in 2013 could have been obtained in 2007. There was no evidence to support that finding. The evidence was to the contrary. Dr Bhandari's report of 10 May 2010 was that Mr Gower's condition had not achieved maximum medical achievement.
There was no dispute that Mr Gower was advised of the limitation period by his solicitor. In one sense it was true that Mr Gower deliberately allowed the limitation period to expire. It was true only in the sense that it can be inferred that a deliberate decision was taken not to commence proceedings before the expiry of the limitation period. But no proceedings could then have been taken which would not have been summarily dismissed. Mr Gower could not then have shown that he satisfied s 151H of the WC Act. The requirements of the WIM Act for the bringing of a claim for work injury damages could not have been satisfied.
Mr Evers produced a file note dated 10 July 2007 in which it appears that Mr Evers did attempt his own assessment as to what an approved medical specialist might find was the degree of whole person impairment. Mr Evers was an experienced solicitor in personal injury litigation, but he was not qualified to make an assessment that only an approved medical specialist can make. Even if he thought that there were good grounds for thinking that Mr Gower suffered at least a 15 per cent degree of whole person impairment, he could not assess the extent to which an approved medical specialist might assess that Mr Gower's permanent impairment was attributable to the injury suffered on 12 September 2003 rather than the earlier events in 2000 at Jesmond High School.
As Basten JA explains, Mr Gower could have brought a claim for lump sum compensation before or after the expiry of the limitation period under s 151D on 12 September 2006. That would have stopped the limitation period running where there was a medical dispute about the degree of permanent impairment until that dispute was determined (s 151DA(1)(a)). But until he received Dr Street's report, Mr Gower did not have a medical opinion that would have supported an award of more than the minimum amount of lump sum compensation based on four per cent permanent impairment.
The respondent did not submit that Mr Gower should have made a claim for lump sum compensation so as to stop the limitation period from running until his degree of permanent impairment was assessed, or it was determined whether it was fully ascertainable. If a medical dispute referred for assessment following the making of a claim for lump sum compensation were concluded by a determination that the degree of permanent impairment was not fully ascertainable, then time under s 151D would re-commence (s 151DA(1)(a)).
Until Dr Street's report was obtained Mr Gower had no medical opinion indicating any other outcome. It was not unreasonable for him to wait until he had received a supportive medical opinion.
Following the introduction of the new WorkCover Guidelines on 27 October 2006, Mr Gower could not have brought a claim for lump sum compensation when he could not have stated the amount of whole person impairment assessed in accordance with the Guidelines (para [44]). Accordingly, he could not have made a claim for work injury damages (WIM Act s 280A).
In my view, neither of the first two grounds upon which the primary judge exercised her discretion not to grant an extension of time under s 151D(2) can be supported. In respect of both grounds the primary judge erred as to facts and as to matters of principle.
That is not to say that there was no relevant delay. No reason was advanced by Mr Gower as to why notice of claim for work injury damages was not served at the same time as the notice of claim for lump sum compensation. As noted above, a notice of claim for work injury damages can be given notwithstanding that the worker has not been assessed to have suffered a degree of permanent impairment of at least 15 per cent. Moreover, as adverted to below, the fact that a formal notice of claim for work injury damages can only be made if the worker is in a position to give a notice of claim for lump sum compensation, does not mean that a worker contemplating bringing a claim for work injury damages cannot give informal notice of that intention conditionally on the worker's obtaining an assessment of permanent impairment that would satisfy the threshold imposed by s 151H. That was not done in this case. The significance of this should be considered in conjunction with consideration of the strength of Mr Gower's claim and evidence of actual or presumed prejudice to the respondent in having a fair trial 15 years or so after the event.
At [75] her Honour said that the plaintiff's solicitors delayed bringing an application for leave under s 151D, even after the proceedings were listed for hearing. There is no rule that an application for leave must be brought in advance of the hearing (Salido v Nominal Defendant (1993) 32 NSWLR 524 at 528.D per Gleeson CJ). The respondent did not seek an order for summary dismissal relying upon s 151D. A notice of motion seeking leave would have been an appropriate response to such an application.

Formulation of Mr Gower's claim

According to a medical assessment certificate given by Dr Parmegiani on or about 9 June 2005 Mr Gower began working as a teacher in 1998 in casual positions. In April 2000 he obtained employment at Jesmond University High School teaching computing, design and technology. Dr Parmegiani took a history from Mr Gower that included his being assaulted by students in October 2000. Dr Parmegiani reported that in a certificate provided on 17 September 2003 he had found that Mr Gower was totally unfit for work from 13 November 2000 to April 2001 and suffered a partial incapacity from April 2001 until 12 September 2003.
Mr Gower commenced casual employment at West Wallsend High School on 1 August 2003. He was employed as a casual teacher to teach Year 10 elective electronics classes in the Industrial Arts section, covering for absent teachers for seven days in August 2003 and from 9 September to 12 September 2003.
The circumstances of the injury sustained by Mr Gower on 12 September 2003 are not found in any formal statement of proposed evidence of Mr Gower to which we were referred. In his statement of claim filed in the District Court on 23 March 2016 Mr Gower pleaded that on 12 September 2003 he was struck by a soccer ball thrown by a student thereby causing him to suffer severe injury, loss and damage. He then pleaded: "4. The said injury, loss and damage were caused by the negligence and/or breach of statutory duty of the Defendant. Particulars of negligence and/or breach of statutory duty: (a) By the Defendant, its servants and/or agents, failing to take reasonable care to provide the Plaintiff with a safe system of work. (b) By the Defendant, its servants and/or agents, failing to take reasonable care to prevent the Plaintiff from being put in a position of peril, namely being exposed to aggressive and violent behaviour of students ('the risk'). (c) By the Defendant, its servant and/or agents, failing to take reasonable care to direct the Plaintiff not to carry out the work until such time as he was provided with a safe work place and/or system of work. (d) By the Defendant, its servant and/or agents, failing to take reasonable care to monitor, identify, control and/or eliminate the risk. (e) By the Defendant, its servant and/or agents, failing to take reasonable care to warn the Plaintiff of the risk. (f) By the Defendant, its servant and/or agents, failing to take reasonable care to undertake any risk assessment in relation to the risk of aggressive and violent student such risk assessment likely to have prevented the circumstance of injury. (g) By its servants and/or agents, failing to take reasonable care to supervise the students at the school, in any manner or at all. (h) By its servants and/or agents, failing to take reasonable care to supervise the behaviour of students and prevent any violent and aggressive behaviour. (i) By its servants and/or agents, failing to take reasonable care to provide any warning to the Plaintiff of the risk of violent and aggressive behaviour of the students, such warning likely to have alerted the Plaintiff and avoided the injury. (j) By its servants and/or agents, failing to take reasonable care to carry out such inspections as were reasonably required to ensure the elimination of the risk of the violent and aggressive behaviour of the students. (k) By its servants and/or agents, breach of the provisions of the Occupational Health and Safety Act 2000 and/or its regulations, insofar as the Defendant, as controller of the premises, failed to take reasonable care to identify, control and eliminate the risk of aggressive and/or violent behaviour. PARTICULARS Regulations 34, 35, 37 and 39 of the Occupational Health and Safety Regulation 2001 (NSW)."
The statement of claim pleads that the defendant did not provide Mr Gower with a safe system of work, and that it did not take reasonable care to prevent his being put in a position of peril. But it did not plead with any specificity what was the risk of harm against which the defendant was required to take precautions and what precautions the defendant was required to take. Mr Gower pleaded that the State of New South Wales (presumably through the principal or some (unspecified) senior staff of West Wallsend High School or perhaps the Department of Education), failed to warn Mr Gower of the risk of violent and aggressive behaviour of students so as to alert him that he might have avoided the injury, that it failed to take reasonable care to supervise the behaviour of students and prevent any violent and aggressive behaviour, without saying that the student who threw the ball was known to be violent or aggressive and without saying what steps should have been taken to prevent the student from engaging in violent or aggressive behaviour. Otherwise the allegations of negligence were entirely general. It may be accepted that, as Leeming JA said in Uniting Church in Australia Property Trust (NSW) v Miller (2015) 91 NSWLR 752; [2015] NSWCA 320 at [119], there may be a range of appropriate formulations of the generality of the risk of harm. It is nonetheless incumbent on a plaintiff to plead what is the alleged risk or risks of harm against which precaution was required to be taken and to plead what precautions ought to have been taken. The statement of claim might well have been struck out on the ground that it failed adequately to plead the plaintiff's case.
A draft of the claim in the form it was later filed was served on 2 September 2014 as Mr Gower's notice of claim for work injury damages. The respondent sought particulars of the claim. They were provided on 13 October 2014.
In the particulars of the claim Mr Gower said that he does allege that the ball was thrown deliberately at him by the student (Question 2). The system of work was stated to be that students were allowed to be absent from class during class time and have access to a soccer ball, although it was known that students had a propensity to cause injury by throwing or kicking soccer balls at other students or teachers. It was alleged that the system of work ought to have been modified so as to prevent students being absent from class during class time and being in possession of soccer balls knowing that those students had the propensity to throw or kick soccer balls at other students and staff (3.1 and 3.3). It was also stated in the particulars that the defendant through its employees at West Wallsend High School knew of previous incidents where teachers, interns (sic) and students who had been injured by soccer balls being kicked or thrown at them by students at the school (para 4.5). Those incidents were not identified. Mr Gower asserted that another teacher at the school had suffered a similar incident and suffered injury and that had been reported to the school and the school had been ordered by the Department to take all appropriate steps to ensure the that students' behaviour causing injury stopped immediately (para 5.2). The teacher in question was not identified. The source of Mr Gower's knowledge of the alleged Departmental order was not identified. Mr Gower said that full particulars would be provided once documents sought from the Department had been provided and he enclosed a notice to produce.
Mr Gower alleged that he ought to have been warned that there was a real possibility that a student might throw a soccer ball at him during the course of his work (7.1). He said that the school ought to have provided a separate teacher to look after students who were allowed outside and to have removed the soccer ball from their possession (9.4). He said students ought to have been under almost constant supervision and inspection and that the students' possession of a soccer ball ought to have been inspected (12.3 and 12.4).
On 21 January 2015, in response to a further request for particulars, Mr Gower also asserted that on or about 19 August 2003 a year 8 student by the name of [SG] deliberately kicked a soccer ball into the back of his head and that this incident was reported and discussed between Mr Gower and the principal.

Investigation of the September 2003 incident

In about September 2003, the GIO arranged for an investigation to be carried out by a company called Newcastle Hunter and Northern Investigations Pty Ltd. The investigator reported that a signed statement was obtained from the relieving principal, a Ms Moody, and that handwritten statements were made by Mr Gower and by students involved on the day of the incident. Ms Olney declined to provide copies of those statements to the investigator. The investigator also interviewed Mr Paul Nelson, Head Teacher Industrial Arts, and Mr Paul Thomas, an Industrial Arts teacher. He also spoke to Mr Gower. Mr Gower declined to provide a statement to the investigator saying in substance that he would first speak to his staff support officer and that on a previous occasion when he had been interviewed what he said had been misrepresented.
The investigator reported that students outside the classroom were playing a game called "peg" with a soccer ball that involved throwing the ball at each other. Mr Gower was struck as he opened the classroom door and walked through the doorway.
Ms Moody was the relieving principal at the time of the incident. On 12 September 2003 she provided a statement to the investigator as follows: "● About 11.30 I went down to the IA block and interviewed the student. I discussed the policy of intentional violence. The student stated that there was no intent to hit the teacher and that the teacher came threw [sic] the doorway as he was throwing the ball at another student in the class. ● I then moved into another room and spoke to another student from the class that was there when the incident happened. He also described the situation in a very similar way to the student responsible. ● I went down to the electronic shed to check on the teacher. I introduced myself and let him know I was relieving principal. I enquired about how he was feeling. He said O.K. now. He mentioned his nose had been bleeding from the hit in the face but this was only for a short time. ● I offered him to go home. He said thanks but it was not necessary. I repeated this on two other occasions, but he declined. We discussed the incident, how it happened and how he was feeling. He was concerned that he had done well to return to a school and teach after a previous incident in another school that set him back for some time. He was hoping this experience would not set him back to the extent that he could not return again to a school. At that stage he was fairly positive he'd bounce back from this. ● I then explained that the student was isolated in the IA block and if he was feeling up to it, would he like to talk to the student about the incident. He was concerned that his reaction to the incident was not good as he responded verbally and also put his hands up in a pushing fashion in case the student was going to come and hurt him again, as the hit took him by surprise. ● I explained that the student seemed very quiet about what happened and felt talking to him may be good for both of them. He agreed quite happily. ● We walked up to IA and went in and sat down with the student. Shane was very calm and so was the student. I raised the issue of intent and DET policy. Shane stated to the student that he didn't believe that the student intended for the ball hit him the teacher [sic]. He was very much focused on explaining why he reacted like he did after the ball hit him in the face. ● The student was very quiet, he told the teacher there was no intent and apologised. Shane accepted this. We spoke together for some minutes and there was no conflict about the series of events described by the student in his statement. ● I made it clear that the student had created an unsafe situation for the teacher and that he was responsible for the teacher being injured. At that point I outlined the consequences: Formal Warning for Suspension, in-school exclusion for 2 days under the supervision of the principal, and a letter outlining this to the parent. The student was isolated for the rest of the day under my supervision. ● Both the student and teacher stated they believed this was a satisfactory line of action for the school to take."
Ms Moody provided a further statement on 2 December 2003. She said, somewhat obscurely, "8. I am unaware of any incidents or claims Mr Gower may have made since working at West Wallsend High School." She recorded that Mr Thomas instructed students to handwrite their versions of the incident. She spoke with the student who had thrown the ball that hit Mr Gower. She said that the student ([NZ]) told her that: "… he had no intention of hitting Mr. GOWER with the ball but as he threw the ball at another student whilst playing 'peg', Mr. GOWER walked through a doorway and was hit in the face with the ball. I then went to another room and spoke with another student who had witnessed the incident and he also informed me that there was no intention to hit Mr. GOWER with the ball, but he walked into the path of the ball as it was being thrown at another student."
Ms Moody spoke to Mr Gower. Her statement includes the following: "14. 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 he heard a ball being hit onto a door and went to see what was happening outside the classroom. He stated 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 he did not feel being hit in the face was intentional but more of an accident."
The statements obtained from Ms Moody did not address any issue as to whether the student in question was known to be violent or aggressive, or whether other students were known to be violent or aggressive, or whether there was otherwise any known propensity for students to throw or kick soccer balls at staff or other students.
Ms Moody's statement included a statement that she told Mr Gower that he needed to complete paperwork to report the incident and that he informed her that he had typed a report whilst at home over the weekend. Mr Gower's solicitor, Mr Michael Evers, deposed that the defendant's Pre-Filing Defence included Ms Moody's statement which referred to Mr Gower as having prepared a typed statement over the weekend. Mr Evers deposed that the original of the document had not been produced by the defendant. He annexed to an affidavit made on 15 February 2017 a typed statement that was: "… retrieved from an old computer hard drive by the plaintiff and provided to me on my request after it became apparent that the original was not being produced by the defendant and was otherwise not available in the form that he signed and gave to Ms Moody shortly after the incident."
The statement so retrieved from Mr Gower included the following: "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 being kicked into a roller door, I set off to investigate the situation and calm the boys down in the process. I notice 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 no slightly ajar, the student stood back as I grabbed the handle and 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. [sic]"
He concluded: "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 use of a ball, under the guise of accident."
This statement, although describing the student as being one of known superciliousness, did not refer to any reported previous incidents of aggressive or violent behaviour of students towards staff. The statement was not included in Mr Gower's pre-filing statement (para [133] below).
The investigator in 2003 reported that he attended upon Mr Paul Nelson and that Mr Nelson said: "… On 12 September 2003 I was away from the school and when I returned Mr THOMAS an Industrial Arts Teacher informed me that GOWER had been hit in the face by a soccer ball that had been thrown by a student. 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."
The investigator reported that Mr Thomas said: "All I can say about the incident is I was obviously working on the day. I cannot remember when it was exactly but I went into the Electronics shed and I saw the relieving teacher for Mr. BROWN, Shane GOWER and his nose was bleeding. He did not appear happy and he told me that he had been hit in the nose with a ball. I went back to his class and collected the student who threw the ball and other students who witnessed what had happened. I got them to write out statements about what had happened. The students told me that they were throwing the soccer ball at each other mucking around and when [NZ] threw the ball at another student GOWER walked out of the classroom door and the ball hit him in the nose. Not long after Mr. NELSON came back and I told him what happened and the Relieving Principal Mrs MOODY arrived. I gave her the statements and told her what I had found out about the incident. I don't remember seeing GOWER again after that day. I don't know what happened to his nose. I think the student was placed on 2 days suspension. I think that is what happened."
In August 2003 Mr Gower had been replacing an Industrial Arts teacher, Mr Don Nelson. In September he was replacing an Industrial Arts teacher, Mr Brown. A report called "Welfare Review" apparently prepared by Mr Paul Nelson, stated that Mr Brown and Mr Gower had organised that the students could play ball games if they had completed written work as Mr Brown did not was Mr Gower to do certain practical work.
The statements obtained in 2003 did not address the allegation, first made on 21 January 2015, [14] that Mr Gower had previously been deliberately assaulted by a student's kicking a soccer ball to the back of his head.
After Mr Gower gave a notice of claim for work injury damages the defendant obtained further statements from teachers at the school. On 22 September 2016 Mr Paul Nelson provided a statement that included the following: "7. I began employment at West Wallsend High School in 1985 as an assistant industrial arts teacher. Then I was promoted to head Industrial arts teacher around 1999. 8. [NZ] was an ongoing problem for teaching staff depending on who he was associating with at the time. [NZ] was capable of being defiant if backed into a corner. I can recall quite a few referrals against him behavioural issues. He had a stubborn streak and he was just a silly boy but no major issues. 9. Whenever a casual teacher would begin and I believe this is the same with most schools, the kids would often push the boundaries but I cannot say if this was the case in this incident. 10. Sometimes when you have a relief teacher and they are not qualified to teach the practical segment of the class as they are sometimes given other activities because they are not qualified. These activities include cricket and handball. I don't believe permission would have been granted to play peg. If any teacher had seen any kids playing peg anywhere in the school, it would have been stopped as it is not a game the school condones or allows. 11. I have been shown my previous statement as to try and jog my memory of the incident that occurred 13 years ago. From memory, I was not at the school at the time. I had been out on a VET work placement visits. 12. When I returned, I was informed of the incident by Paul Thomas and Shane Gower. I cannot recall the exact details. By the time I was informed so had the relieving principal Jennifer Moody and she took control of the situation. 13. I know that all policies and procedures were followed that were in place at the time in relation to the incident. The student was isolated with the supervision of the deputy principal. The child's parents were informed and the student was counselled. 14. I know I spoke to Shane Gower with Paul Thomas at the end of the day to enquire about his wellbeing. Shane Gower advised he was happy with the outcome and gave no indication that there was anything wrong. I have not heard anything about this matter until the investigator from MJM corporate Risk Services contacted me to obtain a signed statement. 15. During my teaching experience we had isolated incidents that would pop up from time to time with different students as you would expect at a high school. All procedures were followed in all incidents. 16. I cannot recall any other incidents involving [NZ] after the Gower incident."
When the matter was before the District Court on 31 January 2017 Mr Gower produced a document entitled "Chronology". This document was not included in his pre-filing statement. The document included an item that Mr Paul Nelson contacted Mr Gower after the 2003 incident to advise him that the school had been under audit for similar injuries in the past and that this was not the first time that that had happened.
The respondent obtained a further statement made by Mr Paul Nelson on 14 February 2017 in which he was asked to respond to Mr Gower's allegation that it was known at the school that students had a propensity to throw or kick soccer balls at other students and/or staff. Mr Nelson's statement was: "No, that was not the case. Handball was the only game allowed in the school at recess and lunch. The school did not supply soccer balls. The students would bring their own soccer balls in to play soccer at lunch time on the oval which was the only time it was allowed as long as there was a teacher supervising. The kids would try and play soccer at other times but the balls would be confiscated by the teachers."

Weakness of claim

At the hearing before the primary judge and on appeal Mr Gower submitted that he had a prima facie or arguable case upon two bases. The first was that at the time of the incident there was a policy laid down at the school that pupils could bring their own soccer balls to play with at lunchtime on the school oval under teacher supervision, but that at other times, if used, the soccer balls would be confiscated. For this contention Mr Gower relies on Mr Nelson's statement quoted above at [130].
It is not clear how Mr Gower will seek to rely on this statement to advance his case. If there were such a policy then it could readily be seen that Mr Gower's injury involving the use of a soccer ball, which did not occur at lunch time on the oval, involved a breach of the policy by the students concerned. That by itself does not bespeak negligence on the part of the school. Mr Gower might say that some steps should have been taken to enforce the policy that were not taken, or that he should have been advised of the policy so as not to have allowed students to play with a ball. If there were evidence at the hearing that Mr Brown and Mr Gower had the idea that students who had finished their work could play ball games (para [126] above), Mr Gower might say that the school was negligent in not informing either of them of the policy. No case based on the "no balls" policy has been pleaded or particularised. Leave to amend and to adduce evidence on these matters would be required. It may well be that s 318(2)(a) of the WIM Act would not preclude the grant of leave. It does appear that the information provided by Mr Nelson in his statement of 14 February 2017 was provided to Mr Gower for the first time on service of the statement. This was well after Mr Gower's pre-filing statement was served.
Section 318(1)(d) of the WIM Act provides that a party to proceedings is not entitled to have any evidence admitted in the proceedings on the party's behalf if the evidence was not disclosed by the party in a pre-filing statement (or defence) except with leave of the Court. Leave cannot be given unless the "material concerned" was not readily available to the party when the pre-filing statement was served (s 318(2)(a)). Mr Gower did not give evidence of the contents of his pre-filing statement. Ms Hodgkisson, the solicitor for the respondent, attached a copy of the index to the pre-filing statement and notice of claim. The index referred to an undated "statement of worker". Ms Hodgkisson deposed that the pre-filing statement of claim included a copy of Mr Gower's unsigned and undated statement that had been sent under cover of correspondence dated 13 October 2014 in response to a request for particulars. That is the only statement of Mr Shane Gower referred to in the index of documents attached to the pre-filing statement. That statement of Mr Shane Gower does not identify any evidence he would give on the hearing of the claim. It appears that Mr Gower did not serve a statement of evidence in his pre-filing statement. There is no suggestion that the pre-filing statement was to be served in instalments (Paper Coaters Pty Ltd v Jessop [2009] NSWCA 1 at [7]-[10] per Hodgson JA, [45] per Bell JA).
It can be anticipated that Mr Gower will rely upon assertions made in his responses to requests for particulars as being the disclosure of evidence on which he will rely, and will rely on statements made by him to treating doctors, as reported by them, as to the circumstances of his injury.
In Strasburger Enterprises Pty Ltd t/a Quix Food Stores v Serna [2008] NSWCA 354 Basten JA (with whom Gyles AJA and Hoeben J agreed) said (at [44]) that as a minimum requirement of s 315(1) a plaintiff must identify the evidence on which she seeks to rely which is to be treated as part of a pre-filing statement. Mr Gower's pre-filing statement did not identify the evidence he proposed to give. If the pre-filing statement "set[s] out" the evidence the claimant will rely on (s 315(1)) such that the evidence is "disclosed" (s 318(1)(d)), s 318 is not a bar to that evidence being admitted. Section 318(1)(d) does not require that the disclosure of evidence take any particular form. Particularly where evidence can be expected to be led orally and not by way of reading of an affidavit, or tender of a witness statement or report, there is good reason not to require such disclosure to take any particular form. However, the particular evidence to be relied upon must be set out and disclosed in the pre-filing statement.
A mere allegation in either the statement of claim or a response to a request for particulars that it was known that students had a propensity to cause injury by throwing or kicking soccer balls at other students or teachers would not be a disclosure of the evidence that would be relied upon to establish that allegation. If the evidence to be relied upon were that the statement allegedly made by Mr Paul Nelson to Mr Gower to that effect (which might be admissible under s 64 of the Evidence Act 1995 (NSW) if he were to be called and had personal knowledge of the fact asserted (Evidence Act, s 64(3) or might or might not be admissible as an admission (Evidence Act, s 87)) that evidence needed to be disclosed in the pre-filing statement. Similarly, not only the allegation that teachers at the school knew of previous incidents where teachers, interns (sic) and students had been injured by soccer balls being kicked or thrown at them by students needed to be included in the pre-filing statement, but the evidence of such an allegation had to be disclosed if evidence were to be relied on, unless leave to adduce such evidence could be obtained.
In principle, a sufficiently precise particular could amount to the disclosure of evidence. The statement in Mr Evers' letter of 21 January 2015 (that was part of the pre-filing statement) that [SG] deliberately kicked a soccer ball into the back of Mr Gower's head on or about 19 August 2003 would I think be sufficient disclosure of evidence that Mr Gower would give as to that event and of the facts by which he considered [SG's] action to be deliberate. By contrast, the allegations of students' known propensity for violence or aggressive behaviour in the notice of claim and letters of particulars do not disclose whatever evidence might be sought to be relied upon. The statement in the chronology referred to above at [129] could be a disclosure of evidence that Mr Gower might seek to give, but that was not included in his pre-filing statement. Mr Gower could not give evidence to the effect of that statement. Evidence of Mr Gower's medical condition could be adduced from Mr Gower if the substance were disclosed in medical reports that form part of the pre-filing statement.
I accept Mr Gower's submission that s 318(1)(d) of the WIM Act does not apply to evidence adduced from an opposite party in cross-examination. But there is real doubt as to what evidence Mr Gower would be able to lead in chief that would require a response. He could give evidence of the alleged earlier blow from [SG]. If leave were obtained, he could lead evidence by calling Mr Paul Nelson to give evidence of the "no balls" policy. He could be given leave to give evidence of whether he was informed of the "no balls" policy and, if not, how he would have acted had he been so informed. This is sufficient to indicate that there is a real question to be determined, but the case appears weak.
The second basis on which it was contended that Mr Gower has a prima facie or arguable case was a report provided by Dr Neil Adams dated 29 November 2014, supplemented on 10 March 2016. Dr Adams described himself as having expertise in occupational stress and its causes. Dr Adams disclosed no experience or expertise in the running of schools. The highest his evidence went was that he believed it to have been unacceptable that pupils were allowed to leave the classroom and engage in vigorous physical activity, possibly including horseplay, without external supervision by a responsible teacher while other pupils were still engaged in the completion of an exam for a project. That opinion was not shown to be based on his training, study or experience (Evidence Act, s 79). His report was primarily directed to suggesting that information known to the Department of Education about Mr Gower's prior placement should have alerted the Department to make it known to the principals and subject masters of the need to protect him from stress arising from contact with ill-disciplined adolescents.
The statement of claim is so generally pleaded that it could encompass any basis upon which negligence might be alleged. I understood from Mr Gower's submissions that that might have been a deliberate tactic to seek to avoid the constraints of s 318 (Strasburger Enterprises Pty Ltd t/a Quix Food Stores v Serna at [37] per Basten JA). However, s 315 requires that the pre-filing statement set out such particulars of the claim and the evidence that the claimant will rely on to establish or in support of the claim as the Workers Compensation Commission Rules 2011 (NSW) require. Rule 17.3 of the Workers Compensation Commission Rules relevantly provides: "17.3 Pre-filing statement (1) For the purposes of section 315 of the 1998 Act, a pre-filing statement is to consist of a copy of the statement of claim intended to be filed in the court of relevant jurisdiction and is to include as attachments the information and other documents required by the Workers Compensation Acts and these rules."
The statement of claim intended to be filed in the Court should be one that pleads material facts that are claimed to give rise to the damages claimed in accordance with the requirements of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR, r 14.4). The prior alleged assault on Mr Gower in 2000, or the consequences of that prior assault for what was required for the provision of a safe system of work for Mr Gower, was not the subject of any allegation in the statement of claim, nor in any response to requests for particulars that forms part of the pre-filing statement.
The respondent did not submit on appeal that the case should have been summarily dismissed, irrespective of whether an extension of the limitation period should be granted.
Although the primary judge said that the weakness of the plaintiff's case considered alone was a sufficient reason for refusing an extension of time, she did not seek to demonstrate by reference to the principles in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; [1949] HCA 1; and Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 that the claim raised no real question of fact or law to be determined.
The primary judge said: "90 …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."
With respect, that is not so. The plaintiff's case as pleaded and particularised relates not to the circumstances of Mr Gower's earlier injury or the suitability of the school to which he was allocated in August 2003, nor to the principal's and Department's plans for his activities at the West Wallsend High School.
The primary judge said that the plaintiff's failure to provide an affidavit weighed heavily against him in finding that he had even a prima facie case.
To the extent that the "no balls" policy referred to by Mr Nelson has not been incorporated in the plaintiff's pre-filing statement, statement of claim, and particulars, it is open to him to seek leave to amend to incorporate that matter if necessary. Given that Mr Nelson's statement was provided in response to the allegations made by the plaintiff, it might be expected that to the extent leave was necessary for Mr Gower to rely upon what was said by Mr Nelson that that leave would be given.
The claim, in my view, raises a real issue of fact to be determined and could not be summarily dismissed. But, prima facie, it is a weak claim.
The weakness of Mr Gower's claim, particularly having regard to the limitations imposed by s 318(1)(d) and (2) of the WIM Act on his ability to adduce evidence in his own case is highly material to the discretion to extend time (Commonwealth of Australia v Shaw (2006) 66 NSWLR 325; [2006] NSWCA 209 at [40] and [84] per Basten JA).

Findings of actual prejudice

Mr Gower submitted that the presence of investigatory material, the availability of at least a significant number of witnesses and the availability of a wealth of medical material over the relevant period did not immediately suggest that the respondent would suffer prejudice by reason of the delay in the bringing of proceedings. The primary judge found that there was substantial evidence of actual prejudice in relation to all aspects of the cause of action in the form of both missing witnesses and missing documents. The category of missing evidence related to evidence relevant to liability, and medical evidence relevant to causation and quantum of loss. As to the former category, the solicitor for the respondent, Ms Hodgkisson, deposed that there were three witnesses who were not available to the respondent: [NZ], the student who was alleged to have thrown the soccer ball, [SG], the student whom the plaintiff asserted kicked a soccer ball into the back of his head in August 2003, and Mr Don Nelson, a teacher at West Wallsend High School in 2003.
Although [NZ] was unresponsive to inquiries made by the respondent, it does not appear that he could not be served with a subpoena to attend to give evidence. A report from an investigator retained by the respondent's insurer of 27 January 2017 stated that the investigator was in contact with [NZ's] father and had obtained [NZ's] address. [NZ] had not responded to calls or to a letter left in his mailbox.
On 12 July 2016 MJM Investigations advised Ms Hodgkisson that [SG] had passed away in a car accident "some time ago". He was killed on 5 September 2012.
The third individual identified by Ms Hodgkisson as a witness who could not be contacted was Mr Don Nelson. He was an Industrial Arts teacher who had been replaced by Mr Gower for five days in August 2003. But his address was provided by Mr Evers and Ms Hodgkisson did not give evidence of any attempt to contact him at the address provided. Mr Evers wrote to Mr Don Nelson on 15 September 2016 referring to Mr Gower's injury on 12 September 2003 and asking for Mr Nelson to contact Mr Evers. Mr Nelson left a telephone message that he did not recall and could not assist.
The head teacher of Industrial Arts was Mr Paul Nelson and he has provided statements. The relieving principal, Ms Moody, provided statements in 2003. She says she has no additional recollection. As she was a relieving principal, she would not be the prime source of information as to the culture and policies of the school.
The principal in 2003 was a Mr Robert Twible. Ms Hodgkisson did not depose to any attempt to contact Mr Twible, nor as to any information obtained from him. Mr Stanton for the respondent submitted that it should not be thought that the evidence of Mr Twible is of any particular moment. His evidence could be of particular moment if it either confirmed or denied that there was a known propensity for students to engage in violent or aggressive behaviour involving the throwing of soccer balls at teachers or the existence of a "no balls" policy as described by Mr Paul Nelson in his February 2017 statement.
Ms Moody was interviewed by Ms Hodgkisson by telephone on 17 January 2017 and asked about the earlier alleged incident involving Mr Gower in August 2003. She told Ms Hodgkisson that she had no knowledge of any prior allegations about teachers or people being hit with balls at the school and no knowledge of any Departmental direction to take any steps in relation to such a matter. She said it was never raised with her. She observed that the principal usually would not be involved in dealing with difficult behaviour of individual students as that was a matter to be dealt with by classroom teachers who, if they have an issue, the issue would be escalated at first instance to the head teacher and then to the deputy principal.
The statement given by Ms Moody on 2 December 2003 included the statement that Mr Thomas had instructed students to handwrite their versions of the incident of 12 September 2003. The statements were kept by the Department, but are not available now to the Department. It was the Department's policy to destroy student records once the student turned 25. The report of NHN Investigations of 8 December 2003 stated that four statements were obtained from students who stated that "they were playing a game throwing the ball at each other and Gower walked out of the classroom when the soccer ball had been thrown and was hit in the face with the ball." There is no reason to think that the statements addressed anything other than the particular incident.
So far as appears, the principal witnesses the respondent could expect to call on the issue of liability are either available and have provided statements or have not been approached by the respondent; namely the principal, the relieving principal, the head of the department in which Mr Gower was employed as a casual teacher, and two other teachers of that department, Mr Brown and Mr Don Thomas. There is no evidence as to the identity of the deputy principal or of any attempt to contact the deputy principal.
The primary judge found (at [111]) that the whereabouts of Mr Brown and Mr Don Thomas were unknown.
Ms Hodgkisson did not identify Mr Brown and Mr Thomas as being potential witnesses who were not available to the respondent. Nor did counsel for the respondent so submit at the hearing before the primary judge. There was no evidence to support that finding.
In my view the respondent's evidence does not establish significant actual (as distinct from presumed) prejudice from the absence of witnesses on the issue of liability, except in relation to the absence of [SG]. In his case actual prejudice is established. The respondent would not be in a position to rebut the allegation made by Mr Gower that on or about 19 August 2003 [SG]had deliberately kicked a soccer ball into the back of his head. The allegation was made for the first time on 21 January 2015. It was not referred to in the initial response to the request for particulars dated 13 October 2014. It could be significant evidence on the issue of the alleged known propensity of students to engage in such conduct.
If the matter proceeded to trial, there would be a significant issue as to whether the psychological injury Mr Gower sustained was causative of his claimed reduced earning capacity. The medical assessment certificate issued by the Appeal Panel is conclusive that the psychological injury suffered by Mr Gower as a result of being struck by the soccer ball on 12 September 2003 resulted in 15 per cent permanent impairment. The Appeal Panel assessed Mr Gower's prior injury in 2000 as contributing 10 per cent to his total degree of permanent impairment (which was assessed at 17 per cent). In reaching that conclusion the Appeal Panel applied s 323(2) of the WIM Act that provides that if the extent of a deduction required to be made by s 323(1) due to a pre-existing condition is difficult or costly to determine, it is to be assumed that the deduction is 10 per cent of the impairment, unless the assumption is at odds with medical evidence accepted or preferred by the approved medical specialist. It was common ground that it would be open at the trial for the respondent to seek to demonstrate that notwithstanding that it is to be conclusively presumed that Mr Gower suffered 15 per cent permanent impairment resulting from psychological injury as a result of being struck by the soccer ball, it would be open to the respondent to contend that any economic loss that may be established was due to other factors, including those earlier matters for which he was receiving psychiatric or psychological treatment before and after September 2003. Thus, as noted above at [76], Dr Ang's report of 29 January 2007 to the GIO was that in his opinion Mr Gower had developed symptoms of panic disorder, agoraphobia, post-traumatic symptoms and a recurrence of a major depressive episode following the assault at Jesmond High School. He said that the injury in 2003 aggravated the previous condition, but the aggravation was temporary.
Ms Hodgkisson identified eight doctors and two psychologists whose clinical records were said to be not available to the respondent. The respondent relied upon the absence of the medical records of a Mr Kreft, a psychologist who saw Mr Gower following the assault in 2000, Ms Douglass, also a psychologist who saw Mr Gower between October and December 2003, and Dr Lambeth, a consultant psychiatrist.
The report by Mr Kreft dated 18 December 2003 was one of the reports tendered by Mr Gower. Mr Kreft said that he had assessed Mr Gower on 10 December 2003. The report indicated that Mr Gower had indicated a willingness to continue therapy. The report contained Mr Kreft's statement of what Mr Gower told him about the events of both 9 September 2003 and the alleged assault at Jesmond High School in April 2000. Mr Kreft wrote to Ms Hodgkisson on 16 February 2015 advising that he last consulted with Mr Gower in 2003 and that "as client files are destroyed after seven years I no longer have any record of my consults with Mr Gower". Thus, Mr Kreft's report is available, but his clinical notes are not.
It seems that Ms Douglass was a partner of a firm trading as Raymond Dorling & Associates, clinical and general psychologists. Four reports of hers dated between 9 October 2003 and 17 December 2003 were tendered. In her first report of 9 October 2003 she set out matters that Mr Gower had related to her as to the incident on 12 September 2003. Her report of Mr Gower's instructions included that, according to Mr Gower, another teacher had told him that the students harassed casual teachers and interns "all the time and had been documented in an audit". (Her report was not referred to in the Index to Mr Gower's pre-filing statement.) She recommended ten sessions of counselling. Her reports of 5 and 17 December 2003 set out what she was told by Mr Gower of events at Jesmond High School in 2000.
On 18 December 2014 Raymond Dorling & Associates advised Ms Hodgkisson that the file for Mr Gower had been destroyed as "it was over the seven-year requirement period".
Dr Lambeth was an accredited WorkCover impairment assessor. He carried out a psychiatric examination of Mr Gower at the request of Mr Evers. His report is dated 29 March 2004. Dr Lambeth's report contains a patient history in relation to the events of 2000 and 2003. He diagnosed Mr Gower as suffering an Adjustment Disorder with Depressed and Anxious Mood and said that he believed that the incident described on 12 September 2003 was such as to reactivate unresolved feelings about his time at Jesmond High School. He said that whatever happened to him in 2000 and 2001 at Jesmond High School served to make him very vulnerable with respect to anything that happened on school premises. He doubted that Mr Gower would handle teaching in a high school again.
The respondent's evidence is that Dr Lambeth had moved to Tasmania and became the Chief Psychiatrist of the Tasmanian Department of Health and Human Services. Ms Hodgkisson sent an email to Dr Lambeth on 1 August 2016 requesting his assistance with identifying where his records would be following his move to Tasmania and who she would need to contact to obtain such records. Her email was not answered.
In each case therefore there are available reports, but not clinical notes that might or might not be of forensic advantage to the respondent in defending Mr Gower's claim.
The respondent also points to the presumption of prejudice arising from the effluxion of time and the likelihood of memories failing or being reconstructed as a result of the long effluxion of time. That presumption must be acknowledged and given full effect.
The respondent submitted that loss of evidence that tends against the prospect of a fair trial will usually be "a fatal deficit in an argument that good reason has been shown to exercise the discretion to grant an extension" (quoting Prince Alfred College Inc v ADC (2016) 258 CLR 134; [2016] HCA 37 at [100]). There, the plurality said: "Secondly, the purpose of the legislative conferral of the discretion is to ensure a fair trial on the merits of the case. The loss of evidence which will tend against the prospects of a fair trial will usually be a fatal deficit in an argument that good reason has been shown to exercise the discretion to grant an extension [Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 544, 549-550, 556]. As McHugh J pointed out in Brisbane South Regional Health Authority v Taylor [at 555], the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of the delay, is unable fairly to defend itself or is otherwise prejudiced. His Honour had earlier observed [at 551] that, in cases of long delay, prejudice may exist without the parties or anyone else realising that it exists."
In Prince Alfred College Inc v ADC the relevant statute of limitations (Limitation of Actions Act 1936 (SA)), s 48(1) and (3)) was in materially the same terms as the statute of limitations in Brisbane South Regional Health Authority v Taylor. The statute of limitations prescribed a limitation period that commenced on the accrual of the cause of action and then provided for the possibility of the extension of that limitation period if the plaintiff did not have knowledge of material facts.
In Itek Graphix Pty Limited v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104 this Court applied the principles in Brisbane South Regional Health Authority v Taylor to the discretion conferred by s 151D(2) of the WC Act to grant leave to a plaintiff to sue after the expiry of the limitation period. Ipp AJA who gave the leading judgment and with whose reasons Spigelman CJ agreed, and Sheller JA generally agreed, said (at [87]) that in legislation such as s 151D(2) of the WC Act, where a broad discretion is conferred to grant leave to sue after expiry of the limitation period the general question to be asked is, what is fair and just or, what the justice of the case requires. His Honour said that: "In answering such a question, the justice of the case must be evaluated by reference to the rationales of the limitation period that has barred the action, including the four rationales to which McHugh J referred."
His Honour noted that ordinarily the issue of prejudice would be of paramount importance (at [88]) and (at [91]) that a deliberate decision to allow a statutory limitation period to expire would be a powerful factor against the grant of leave. Sheller JA also said that particular circumstances that may compel a refusal to extend time is actual significant prejudice to the defendant brought about by the plaintiff's delay (at [3]).
The four broad rationales for the enactment of limitation periods identified by McHugh J in Brisbane South Regional Health Authority v Taylor were: 1. that as time goes by relevant evidence is likely to be lost; 2. it is oppressive, even cruel, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed; 3. people should be able to arrange their affairs and use their resources on the basis that claims can no longer be made against them; and 4. the public interest requires that disputes be settled as quickly as possible (at 552).
McHugh J also noted (at 555) that limitation periods are enacted because Parliament makes a judgment that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to preclude the plaintiff's bringing, or to extinguish, a cause of action. His Honour said (at 555) that: "When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action." (Emphasis added.)
This was the passage approved and applied by the High Court in Prince Alfred College Inc v ADC, albeit without specific reference to the words I have emphasised above.
Holt v Wynter (2000) 49 NSWLR 128; [2000] NSWCA 143 concerned an application for an extension of time under subs 52(4) of the Motor Accidents Act 1988 (NSW) that provided a limitation period and conferred discretion on the Court to give leave for the commencement of proceedings after the limitation period had expired. In Holt v Wynter Sheller JA with whom Meagher and Handley JJA and Brownie AJA agreed, said that the effect of the decision in Brisbane South Regional Health Authority v Taylor was that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant (at [119]). In Brisbane South Regional Health Authority v Taylor McHugh J had noted that if there were a significant chance that a defendant would be unable fairly to defend him or herself the case was one of actual prejudice.
South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 concerned an application for the extension of a limitation period pursuant to s 60G of the Limitation Act 1969 (NSW). The applicant for extension of time was required to satisfy the court that he or she did not know that personal injury had been suffered or was unaware of the nature or extent of the personal injury suffered, or was unaware of the connection between the personal injury and the defendant's act or omission, at certain specified times. Hodgson JA with whose reasons Beazley JA agreed and with whose reasons on this point Rolfe AJA also agreed, said (at [31] and [32]): "[31] In Holt v Wynter, Sheller JA (with whom Meagher JA, Handley JA and Brownie AJA agreed) expressed the opinion that the effect of the High Court decision in Brisbane South Regional Health Authority v Taylor was 'that an application for extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant'. I accept that statement, but I do not accept that it should be understood as encapsulating either the total effect of the High Court decision, or the totality of the issues to be determined under provisions such as s60G. [32] The ultimate issue under s60G, as under some other similar provisions, is whether it is 'just and reasonable' for the period to be extended, and the onus of establishing this is squarely on the applicant for the extension. In considering this matter, I would have regard to the following considerations."
Importantly, his Honour said that the ultimate onus was on the applicant to prove that there would not be such prejudice as would make the chances of an acceptable fair trial unlikely. There is no substantial difference between that formulation and the statement of McHugh J in Brisbane South Regional Health Authority v Taylor that if there is a significant chance that the defendant would not be able fairly to defend himself or herself, actual prejudice is established. Unless the applicant for extension shows that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely, leave should be refused.
In South Western Sydney Area Health Service v Gabriel the primary judge had concluded: "… the legislation was passed specifically to deal with situations of late onset or late discovery to ensure that a meritorious plaintiff was not kept out of Court. In those circumstances, whilst I am satisfied that the defendants are prejudiced, I cannot say that the prejudice is so significant that it would be unjust or unreasonable to allow the extension of the limitation period."
As to this, Hodgson JA said (at [34]): "The sentence strongly conveys the impression that the question which the primary judge set himself was whether or not the prejudice to the potential defendants, of which he was satisfied, was 'so significant that it would be unjust or unreasonable to allow the extension of time', and his answer to this question was that he was not satisfied that it was. As we have seen, the question which he should have asked was whether or not he was satisfied that the prejudice was not such as to make the chances of an acceptably fair trial unlikely; and, if he answered that question to the effect that he was satisfied of this, in the absence of any other issue the extension probably should have been granted." (Emphasis in original.)
This principle was applied in Salvation Army (South Australia Property Trust) v Rundle. McColl JA said (at [96]): "Brisbane South is authority for the proposition that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant: Holt v Wynter [2000] NSWCA 143 ; (2000) 49 NSWLR 128 (at [119]) per Sheller JA (with whom Meagher JA, Handley JA and Brownie AJA agreed). "Significant prejudice" means such prejudice as would make the chances of a fair trial unlikely: 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). For a trial to be fair, it need not be perfect or ideal: Commonwealth of Australia v Smith (at [129])."
There, the Court assessed the prospects of a fair trial after long delay having regard to the expectation that the judge hearing the civil case would remind himself or herself of the need to scrutinise evidence with great care, recognising the danger of acting on evidence that cannot be contradicted because of the lapse of time (Salvation Army (South Australia Property Trust) v Rundle at [105]).
In Strasburger Enterprises Pty Ltd t/a Quix Food Stores v Serna Basten JA said (at [52]-[53]): "[52] With respect to this and similar provisions, which contain no express indication of the matters to be considered in relation to an application to extend time, 'the limits of the discretion are to be found in the subject matter, and the scope and purpose, of the statute': Salido v Nominal Defendant (1993) 32 NSWLR 524 at 530F (Gleeson CJ); see also 535-9 (Kirby P) and 541 (Powell JA). Subsequently, the High Court provided guidance as to the correct approach in Brisbane South Regional Health Authority v Taylor 186 CLR 541; [1996] HCA 25, although the majority judgments did not speak in identical language and were concerned with a limitation provision which provided some guidance as to factors to be taken into account. As explained in The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 at [96] by McColl JA: Brisbane South is authority for the proposition that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant … 'Significant prejudice' means such prejudice as would make the chances of a fair trial unlikely … For a trial to be fair, it need not be perfect or ideal … [53] In relation to s 151D(2), the relevant principles were discussed in Itek Graphix Pty Ltd v Elliott 54 NSWLR 207; [2002] NSWCA 104, by Ipp AJA with whom Spigelman CJ and Sheller JA agreed. Sheller JA, after referring to the fact that actual significant prejudice might compel a refusal by the court to extend time, added that 'it is not correct to conclude that the absence of such prejudice compels an exercise of discretion in favour of the plaintiff': at [3]. Itek itself was concerned with a particular additional consideration, namely that the prospective plaintiff had quite deliberately decided, on an informed basis, not to proceed within the specified period."
Although in Itek Graphix Pty Ltd v Elliott this Court said that the discretion under s 151D of the WC Act was to be exercised having regard to the rationales for limitation periods expressed in Brisbane South Regional Health Authority v Taylor, no issue arose in Itek Graphix Pty Ltd v Elliott concerning the operation of s 151H of the WC Act. Section 151H 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.
Brisbane South Regional Health Authority v Taylor, Prince Alfred College Inc v ADC and Itek Graphix Pty Ltd v Elliott and similar cases must all be understood in the light of the issues with which those cases were concerned. I do not think that in a case such as the present they require that an extension of the limitation period be refused if the delay in commencing proceedings has resulted, or is presumed to have resulted, in the loss of evidence that affects the chance of a fair trial. That may be the consequence in a particular case, but it is not an inevitable rule.
The rationale underlying clause 3 of Pt 6 of the 2006 WorkCover Guidelines (replicated in cl 7.3 of the 2012 Guidelines) is applicable even if it is not possible for an injured worker to make a claim for work injury damages in accordance with s 260 of the WIM Act, because the worker is not in a position to make a claim for lump sum compensation. 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. Mr Gower did not do this. It was submitted on his behalf that the Department was on notice that such a claim would be made (see para [60] above). I do not agree. The investigator retained by the GIO (NHN Investigations) reported on 8 December 2003 that "we do not see potential for a Common Law action". The Department's concern was evidently about a further workers' compensation claim.
The dominant considerations are the weakness of Mr Gower's case, particularly having regard to the constraints imposed by s 318(1)(d) of the WIM Act, and prejudice. Mr Gower could give evidence of having been struck in the back of the head by a ball kicked by [SG], but that is evidence which the respondent could not meet because of [SG's] death. It is a case of actual prejudice. Otherwise Mr Gower could give evidence of the circumstances of the incident on 12 September 2003, but that would not establish negligence. If he obtained leave he might call Mr Paul Nelson to give evidence of the "no balls" policy and he might obtain leave to give evidence as to how he would have responded had he known of the policy. The fact that Mr Nelson had made no previous reference to that policy would at least raise a question as to the reliability of the evidence. The presumption of prejudice arising from the passage of 14 years in the respondent's being able to deal with the evidence is strong.
Having regard to the apparent weakness of Mr Gower's case, coupled with the prejudice to the respondent arising from the delay and the absence of any earlier notice of an intention to make a work injury damages claim, I consider that the discretion to extend time should not be exercised. I propose that the appeal be dismissed with costs.
SIMPSON AJA: I have had the advantage of reading in draft the judgments of Basten JA and White JA. The comprehensive outline of the relevant facts and circumstances given by White JA and the references to the relevant legislation in both judgments mean that I can state my position relatively briefly. As I perceive it, the principal difference between their Honours is whether error has been shown on the part of the primary judge. White JA considers that error has been demonstrated, in at least two respects, but would, nevertheless, in the re-exercise of the discretion the subject of the proceedings (see Supreme Court Act 1970, s 75A), uphold the decision of the primary judge. Basten JA considers that no material error has been demonstrated. I agree with White JA that error has been demonstrated. Unlike his Honour, however, I would allow the appeal. In order to explain my reasons, it is necessary to mention some important matters of history.

The facts

The salient facts can, it seems to me, be stated as follows. In September 2003 the appellant, Shane Gower, was working as a substitute teacher at West Wallsend High School. On 12 September he was struck by a soccer ball thrown by a student that caused him minor physical (facial) injury, following which, for several years, he suffered on-going psychological and psychiatric disorder. He reported the injury and, at the request of school authorities, prepared a statement outlining what had occurred. He sought medical attention. School authorities notified the Department of Education and various senior members of the school staff made statements as to the event.
With some alacrity, the respondent's insurer referred the appellant to a consultant psychiatrist, Dr Graham Vickery, for assessment. That assessment was undertaken on 13 November 2003. Dr Vickery found no psychological injury arising from the incident of 12 September and reported that the appellant continued to experience "incapacitating psychpathology" from an earlier event (mentioned below).
On 21 December 2003 the appellant submitted a claim for compensation under the Workers' Compensation Act 1987 ("the WC Act"). In response to a question asking "what part/s of your body is/are injured?", he answered: "Nose, displaced - Anxiety - PTSD [meaning Post Traumatic Stress Disorder]." Thereafter the appellant received benefits in accordance with the WC Act
This was not the first time the appellant had made a claim under the WC Act. In 2000, while working at another school, he suffered depression, apparently associated with allegations made against him, and abuse and harassment by students, for which he was referred to a psychologist and psychiatrist for treatment. There are some suggestions that he was assaulted there. A psychiatrist, Dr Julian Parmegiani, certified him as unfit for work from November 2000 to April 2001, and partially incapacitated until September 2003
Following the 2003 injury, the appellant was examined on a regular basis by medical practitioners and psychologists, presumably for the purpose of his on-going claims for compensation. The substance of the reports and certificates consequent upon those examinations is set out in detail in the reasons of White JA. It is appropriate to note here, however, that the appellant was the subject of periodic certificates as to his work capacity issued by his general practitioner, Dr Paul Roth. Between 18 September 2003 and 30 January 2004 Dr Roth examined him on eight occasions, following each of which he certified the appellant as unfit for work; between 29 April 2004 and 24 February 2005, Dr Roth certified him on nine occasions as "fit for suitable duties" (which I take to mean that he was partially incapacitated for work); between 22 September 2005 and 24 March 2006 he issued three certificates of unfitness; between 18 May 2006 and 30 March 2007 he issued five certificates of partial incapacity; and between 5 July 2007 and 29 August 2013 he issued 21 certificates of unfitness. In each case Dr Roth expressed the opinion that the appellant's employment was a substantial contributing factor to his injury.
There does not appear to have been any dispute by the respondent as to these assessments. I mention them in some detail because they indicate the fluctuating nature of the appellant's condition.
As has been shown by White JA, the appellant's claim is governed by the WC Act and the Workplace Injury Management and Workers' Compensation Act 1998 (NSW), (commonly abbreviated to "the WIM Act", an abbreviation I will adopt) The WC Act is to be construed with, and as if it formed part of, the WIM Act (WC Act s 2A(2); WIM Act s 60(2)). The legislation draws a distinction between "compensation" (Part 3 of the WC Act) and "damages" (Part 5 of the WC Act). The damages (called "work injury damages") available are a modified form of damages that would prior to the enactment of the WC Act and the WIM Act, have been available at common law. Obtaining an award of work injury damages depends upon proof that the injury in respect of which damages are claimed was caused by the negligence or other tort of the employer (WC Act s 151E(1)). The distinction can also be seen in the WIM Act. The legislation also observes a distinction between "making a claim" and commencing court proceedings.
To the extent that the appellant had any entitlement to compensation or damages other than the weekly payments and medical expenses he received, that entitlement was specified in ss 66, 151G and 151H of the WC Act. By s 66 (as the legislation stood at the time of the appellant's injury) the appellant may have been entitled to compensation for permanent impairment (also called "lump sum compensation") calculated in accordance with a formula contained in that section, according to the degree of permanent impairment, if he were able to demonstrate permanent impairment. Section 151G precludes any award of damages other than for loss of earnings or earning capacity. By s 151H he may have been entitled to work injury damages but only if he were able to demonstrate permanent impairment of at least 15%. And, by s 280A, he was not entitled to make any claim under s 151H unless he had already made a claim for s 66 lump sum compensation, or did so at the same time as making his claim for work injury damages. By s 151D any claim for work injury damages had to be made within three years of the date of injury (that is, by 11 September 2006) unless, by reason of one or more of the circumstances identified in s 151DA, time ceased to run, or a court gave leave to commence proceedings beyond that time. Although s 151D expressly confers a discretion on a court to grant leave to commence proceedings outside the three year period, it does not state any criteria for the exercise of that discretion.
On 9 June 2005 (still within the limitation period) Dr Parmegiani certified that the appellant had suffered an injury that resulted in "impairment" (as distinct from "permanent impairment") and that he had not reached "maximum medical improvement".
On 14 February 2005 Dr Joseph Scoppa (an approved medical specialist appointed under s 320 of the WIM Act) assessed the appellant's degree of permanent impairment resulting from the physical injury caused by the incident at 4% The appellant claimed and was awarded lump sum compensation under s 66. There does not appear to have been, prior to September 2006, any assessment of permanent impairment of a psychiatric nature. As White JA has pointed out, while s 66 (1A) now allows only one claim for permanent impairment compensation, that restriction did not come into effect until June 2012.
Nor do there appear to be any of the circumstances stated in s 151DA of the WC Act that would have suspended the running of the limitation period. Accordingly, that period expired on 12 September 2006. In my opinion, s 151DA has only limited further relevance to these proceedings.
In June 2006 Dr Roth referred the appellant to Dr Pek Ang, a consultant psychiatrist. From time to time Dr Ang reported to Dr Roth, and, although Dr Ang plainly saw himself as a treating psychiatrist, he at times also reported to the respondent's insurer. In such a report dated 29 January 2007, Dr Ang related the appellant's symptoms to the 2000 incident (or incidents) at a different high school, and said: "Mr Gower may be fit to try his Pre-Injury duties again. However, I would restrict this to the specific subject of Graphic Design Teaching. … Prognosis It is difficult to estimate when Mr Gower will improve. Things are relatively stable at the moment, although given specific stressors, those symptoms could recur. It is likely that Mr Gower will retain some symptoms of Panic Disorder and Post Traumatic symptoms into the longer term. However, Mr Gower will continue to learn ways to cope with these symptoms, which will allow him to function better. My opinion is that there has been an aggravation of the previous condition in 2000, as a result of a work-related injury in 2003. Although the aggravation is temporary it is likely Mr Gower's psychological symptoms will fluctuate."
On 17 December 2007 the appellant's solicitor wrote to the respondent's insurer, pointing out that the appellant had been assessed as totally unfit for work, and requesting the provision of any reports held by the insurer of any recent medical reports from the appellant's treating doctors, and any material identifying the appellant as suffering from "WPI" (an abbreviation commonly used to refer to "whole person impairment"). As an alternative, he proposed that Dr Parmegiani be retained "on a joint basis" to conduct an assessment of "WPI" for "work injury damages, Section 66 and/or commutation purposes." No reply was received to that letter, and, on the evidence of the respondent's solicitor, it does not appear to have been conveyed to the respondent.
In December 2010 the appellant's solicitor referred the appellant to Dr Kim Street (a consultant psychiatrist), seeking assessment and report on ten specific questions, of which the sixth was assessment of the appellant's "whole person impairment" in accordance with Workcover Guidelines (promulgated under the WIM Act). Dr Street did not provide the report requested until May 2012, but when he did, he assessed the percentage impairment at 41%, and said that the appellant was "totally impaired" for employment and could not work at all..
Armed with this assessment, on 26 June 2012 the appellant claimed lump sum compensation under s 66 of the WC Act, (this time for psychiatric injury) for which the respondent's insurer denied liability. A "medical dispute" within the hearing of s 319 of the WIM Act thus arose, which was not finally resolved until 13 May 2014, when an Appeal Panel constituted under s 328 of the WIM Act certified him as suffering 15% whole person impairment.
Once the dispute arose, by reason of s 313 of the WIM Act, the appellant could not take any further steps (such as serving a pre-filing statement or a statement of claim) until the degree of permanent impairment had been assessed under Part 7 of the WIM Act. That occurred on 13 May 2014, when the Appeal Panel made its decision.
On 2 September 2014 the appellant gave to the respondent notice of his intention to make a claim for work injury damages under s 151H of the WC Act. On 30 September 2015 he served a Pre Filing Statement as required by s 315 of the WIM Act. Attached to the Statement were a large number of documents, including his own statement made on the weekend following the September 2003 incident, numerous documents relating to the compensation claims, many medical reports, an expert's report, and financial documents.
On 27 October 2015 , as required by s 316, the respondent responded to the Pre-Filing statement by filing a Pre-Filing Defence. It attached a large amount of documentation on which it proposed to rely. It expressly put in issue the appellant's allegations. (The respondent appears to have treated the Notice of Claim as a Pre-Filing Statement under s 315 although another document purporting to be a Pre-Filing Statement was later filed).
By s 318A of the WIM Act, before he could commence court proceedings for the recovery of work injury damages, the appellant was required to refer the claim for mediation, but could not do so until at least 28 days after service of the Pre-filing Statement. Mediation took place on 29 February 2016 but failed to achieve resolution of the claim.
On 23 March 2016 the appellant filed in the District Court the statement of claim that commenced the proceedings.
Prima facie, the claim was well outside the limitation period of three years and therefore statute barred. Accordingly, by notice of motion, the respondent moved to strike out the statement of claim. In response the appellant filed a notice of motion seeking an extension of time under s 151D of the WC Act. Those notices of motion were before the primary judge for determination in March 2017.

The proceedings in the District Court

The proceedings in the District Court appear to have proceeded (correctly, in my opinion) on the basis that, unless leave were given to the appellant that would, in effect, extend the limitation period of three years by more than 9 years, the respondent's application must succeed. If the application for extension of time succeeded, the respondent's application must fail. The primary judge therefore focused upon the appellant's application for extension of time.
The respondent filed extensive evidence (6 folders) designed to establish that it was prejudiced by the long delay in the commencement of proceedings. The evidence in that respect primarily addressed two issues: loss of evidence by reason of the unavailability of certain witnesses, and loss of evidence by the destruction of medical records. These are further detailed in the reasons of White JA.
The appellant did not give evidence or file an affidavit. His solicitor filed two affidavits, in which he made some attempt to explain the delay, and to contradict the respondent's claims of prejudice by reason of lost evidence. He was cross-examined.
The explanation for the delay given in the District Court (as recorded by the primary judge (at [68] of the judgment)) was threefold:

that, given the requirement that damages could only be awarded if he could show at least 15% whole person impairment, the appellant could not realistically commence proceedings before the Appeal Panel's certificate was issued on 13 May 2014;
that the refusal of the respondent to contribute to the costs of a further report by Dr Parmegiani (requested by the appellant's solicitor in December 2007) was a factor that should be given great weight; and
that the appellant was obliged to seek documentation under freedom of information legislation (the respondent having failed to provide the relevant documentation in response to a subpoena).

The primary judgment

The primary judge stated explicitly the basis upon which she approached the question of the exercise of the discretion conferred by s 151D. She said: "14. 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 fact is referred to by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 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 past, the desirability of 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. 15. All of these are relevant to the case in question. Where there is 'significant prejudice' … namely such prejudice as would make the chances of fair trial unlikely … the court should not permit the action to be brought, no matter how hard that may appear in circumstances such as the present case. 16. This is because the 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 within a reason[able] 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 'the justice of the case' rather than empathy for one or other of the parties." (some internal citations omitted) No issue is taken with that statement of principle.
The primary judge then recited some of the history of the appellant's engagement with the workers' compensation claims process. She noted a report, dated 22 November 2006, by Dr Roth to the respondent's insurer, in which it was stated that he and the appellant had agreed that if he were not successful in obtaining work by the end of June 2007 he would need either to "broaden his career options" or move elsewhere to seek work. She noted that the deadline contained in that agreement expired after the expiration of the limitation period in question. She then said: "43. [The plaintiff] 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." She went on to refer to a number of medical reports that followed Dr Roth's report. Obviously, these were all reports that post-dated the expiration of the limitation period.
She rejected the claim made on behalf of the appellant that by September 2006, he had not reached the necessary threshold of permanent impairment that would permit an award of work injury damages, on the basis that: "… Dr Ang's reports at this period (particularly his January 2007 report) indicated that the plaintiff's problems were serious and that he was effectively unable to work."
She took note of the fact that the appellant had not given evidence, in terms that indicate that she considered it a relevant factor, adverse to the appellant, and added that, independently of that circumstance, she was satisfied that his case (for work injury damages) was weak.
She reviewed the evidence given on behalf of the respondent concerning the unavailability of witnesses and the destruction of some medical records.
She concluded: "122. 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: (a) 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]); (b) the plaintiff has not provided a full or satisfactory explanation of his reasons for delay … and the explanation of his solicitor is insufficient and unpersuasive …; (c) the apparent weakness of the plaintiff's case is a factor which militates against an extension of time …; (d) 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. 123. 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 12 days to be refused."

The appeal

The appellant has pleaded 11 grounds of appeal, virtually all of which challenge the findings of fact and conclusions of the primary judge. No error of law is identified. As presented through its written and oral submissions, the appellant's challenges to the primary judgment fall into four categories, those being aligned with the four reasons given in [122] for refusing the application.
It is convenient to deal with those challenges in the same manner.

(i) The appellant deliberately allowed the limitation period to expire

The first thing to note here (although it might seem like a statement of the obvious) is that the limitation period expired on 12 September 2006. The correctness of the finding that the appellant had deliberately allowed the limitation period to expire must be tested against the circumstances as they existed up to that date. Events that occurred thereafter are of course relevant to the magnitude of the extension of time sought. But they do not and cannot establish that the appellant deliberately allowed the limitation period to expire.
Underlying the conclusion are two premises, one explicit and one implicit. The first was that the appellant was "at all relevant times" aware of the limitation period of three years (and that it would expire on 12 September 2006). No challenge is made to that express finding.
The second, implicit, premise is that, during the three year period, it was open to the appellant to commence the work injury damages proceedings.
For that to be the case, he had to have, within the limitation period, a viable cause of action. The premise was, in my opinion, incorrect. It was not, in any realistic sense, open to the appellant to commence proceedings within that time. He could only have had a viable cause of action if he had evidence of the relevant degree of permanent impairment. That he did not have
Further, by s 280A of the WIM Act, the appellant could not make a claim for work injury damages under s 151H unless, at the same time or before, he made a claim for permanent impairment (lump sum) compensation under s 66 of the WC Act.
Under s 66 as it then stood, the appellant was entitled to make a claim for permanent impairment compensation at any time in the three year period. The legislation did not then (as it does now) prescribe a threshold of 10% permanent impairment to be met. Had the appellant made such a claim within the three year period, that would have opened the way for him to make a claim for work injury damages under s 151H. But he had, as at September 2006, no assessment of permanent impairment for psychiatric injury, and a very modest assessment of 4% impairment for physical injury.
Examination of Dr Ang's reports, especially the January 2007 report (which in any event post-dates the expiration of the limitation period) does not support the conclusion, expressed at [80] of the primary judgment, that the appellant was effectively unable to work.
Moreover, the WIM Act cast other obstacles in the way of the appellant's taking proceedings for work injury damages. By s 315, before he could "commence court proceedings for the recovery of work injury damages", he was obliged to serve on the respondent a Pre-Filing Statement setting out the particulars of the claim and the evidence on which he proposed to rely. And by s 318, that Pre-Filing Statement had to contain the whole of the case he proposed to make (s 318(1)(d)). That paragraph provides that a party to proceedings is not entitled to have any report or other evidence admitted in the proceedings if it was not disclosed in the Pre-Filing Statement (or defence), except with the leave of the court. Subsection (2) prescribes, very narrowly, the circumstances in which leave may be given. Leave is not to be given unless the court is satisfied that the material concerned was not reasonably available when the Pre-Filing Statement (or defence) was served, and that the failure to grant leave would substantially prejudice the party's case.
The consequence of these provisions is that the appellant could not serve a Pre-Filing Statement unless and until he was in possession of evidence that the degree of permanent impairment was at least 15%.
Given the fluctuating nature of the appellant's condition, as disclosed, inter alia, in Dr Roth's certificates and Dr Ang's reports, the appellant was in no position, as at September 2006, to serve a Pre-Filing Statement. Any claim based upon such a Pre-Filing Statement, without an assessment of permanent impairment, would have been doomed to fail. And without a Pre-Filing Statement, he could not commence court proceedings.
For these reasons, I agree with White JA that it was an error for the primary judge to use as a reason for refusing the extension of time, that the appellant "…deliberately allowed [the limitation period] to expire."
But the question before the primary judge was not whether the limitation period should have been extended beyond 12 September 2006. It was whether it should have been extended for a further 9½ years, to 23 March 2016, when the proceedings were commenced. That means that the magnitude of the delay was a relevant consideration, and the factors she mentioned were relevant to that assessment. That was not, however, the basis upon which her Honour used that material. It is, notwithstanding that, appropriate to consider whether the reasoning can be applied to the lengthy period following September 2006 before the appellant commenced proceedings.
I do not think it could properly be said that the appellant deliberately allowed a further nine years to elapse before commencing the proceedings; that, again, assumes that he was in a position to do so. By reason of s 318A of the WIM Act, he could not commence court proceedings until he had referred the claim for work injury damages for mediation, and that could not be done until 28 days after service of the Pre-Filing Statement - 28 October 2015. Mediation took place (and failed) on 29 February 2016; the appellant filed a statement of claim less than a month later.
White JA has referred to Part 6 of the 2006 WorkCover guidelines. Clause 3 states that when "the time limit is reached" but (clause 8) permanent impairment is not fully ascertainable, the worker should make a claim for [work injury damages], providing available particulars. It is not clear to me what is meant in the clause by "make a claim", which is distinct from commencing court proceedings.
In any event, the clause assumes that the fact (as distinct from the degree) of permanent impairment is known by the expiration of the limitation period. As is clear from the reports of Dr Ang, referred to above, the permanency of the appellant's condition was not clear until much later. Dr Ang maintained optimism that the appellant's condition would stabilise.
There is a further relevant consideration. Clause 4(2) of Schedule 2 of the Legal Profession Uniform Law Application Act 2014 (NSW) precludes the filing by a law practice of court documentation on a claim or defence of a claim for damages unless a principal of the law practice, or a legal practitioner associate responsible for the provision of the legal advice concerned, certifies that there are reasonable grounds to believe in on the basis of provable facts and reasonably arguable view of the law that the claim or the defence has reasonable prospects of success. Parallel provisions existed in the Legal Profession Act 1987 (NSW) (s 1982) and the Legal Profession Act 2004 (NSW) (s 347). The appellant's solicitor provided such a certificate on 16 March 2016, but he was not in a position to do so until he was in possession of evidence of the assessment of whole person impairment. Until then, he could not certify as to the existence of relevant "provable facts."
In my opinion the grounds that complain of the primary judge's first reason for refusing the extension must be upheld.

(ii) No proper or satisfactory explanation for the delay

It follows from conclusions above that these grounds must also be upheld. The explanation for not commencing the proceedings earlier than he did was simply that it was not open to the appellant to do so.
The appellant in his submissions on these grounds placed weight upon the primary judge's reliance on his failure to provide an affidavit or give evidence. I do not consider that the reference to his failure to give evidence is illustrative of error. The question in this case is why the appellant failed to commence proceedings before 12 September 2006, or at any time thereafter before March 2016. His failure to provide his own explanation was a relevant, though not conclusive, consideration. In my opinion it was open to the primary judge to take into account the failure of the appellant to give evidence. That does not mean that that failure was particularly weighty - and it does not appear to have been given great eight.
However, like White JA, I consider that the primary judge did err in concluding that the appellant had failed to provide "a proper or satisfactory" explanation for the delays. The explanation provided (through his solicitor) was relatively simple.
Contrary to the view expressed by White JA at [76] I do not accept that the appellant could, or should, have given notice of his claim for s 51H damages prior to his obtaining viable evidence of 15% impairment. In this respect s 318 of the WIM Act is of particular importance. The effect of that section is that, in practical terms, the appellant could not serve his Pre-Filing Statement without that evidence, because, if he did, he would not be able to rely on it at a trial.
In my opinion the explanation for the delay between the expiration of the limitation period on 12 September 2006 and the issue of the Appeal Panel's certificate on 13 May 2014 could not reasonably be held to be other than proper and satisfactory. The remaining period, 13 May 2014 to 23 March 2016, is, in my opinion, also satisfactorily explained. On 2 September 2014 the appellant served the notice of claim for work injury damages. There followed correspondence between the solicitors, in which the respondent's solicitors sought, and the appellant's solicitor provided (not always adequately) responses. The mandatory mediation took place (but failed) on 29 February 2016. The statement of claim was filed less than a month later. Although they did not stop the limitation period running, these are circumstances of the kind envisaged by s 151DA, and are relevant to the length of the extension sought.
In my opinion the reason given by the primary judge in [122(b)] for refusing the application was erroneous.

(iii) The weakness of the appellant's case (on liability)

The primary judge did not clearly spell out what weaknesses she perceived in the appellant's case. She referred to the decision of this Court in Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471; [2007] NSWCA 377, reflecting the difficulties in establishing liability in cases of psychiatric disability. She considered that there was "vagueness" in the manner in which the case was pleaded and that the "vagueness" corresponded with the periods of time during which the respondent complained of actual prejudice (presumably, by reason of the loss of medical records). She also referred, although without elaboration, to causation issues in relation to the appellant's on-going psychiatric symptoms.
The causation issues are far from trifling. Dr Parmegiani's certificate of unfitness for work from November 2000 to April 2001 is a clear indicator of pre-existing vulnerability, and of a causal connection between the appellant's condition and the earlier incidents.
I am not satisfied that error has been shown in the primary judge taking into account the weakness of the case. The weakness of the case is not, however, sufficient of itself to justify refusing the application (contrary to the indication, in [123], that it was).

(iv) Prejudice

The respondent's case on prejudice fell into the two categories mentioned above (the detail of which is more fully spelled out in the judgment of White JA) - (i) actual prejudice as a consequence of the unavailability of some witnesses (one school student who has died, another - the alleged perpetrator of the soccer ball-throwing incident - who has to date not cooperated with the respondents); (ii) actual prejudice as a consequence of the destruction of some medical records (detailed in the reasons of White JA).
The primary judge appears to have accepted each. Like White JA I consider that the loss of witnesses is of limited significance. Most of the school staff are available, and the respondent is in possession of detailed and contemporaneous statements. It seems to be that the liability issues in any trial would include the duty of the respondent to take steps to prevent boisterous or even aggressive or violent behaviour on the part of students. That does not call for contemporaneous observation, and, indeed, an expert report was in evidence. As indicated above, another principal issue would likely be the cause of the appellant's psychiatric condition. The appellant's condition has been fully documented, as is apparent from the vast amount of medical reporting in evidence.
In my opinion, the impediments in the way of the respondent making an adequate defence to the claim are relatively insignificant.
I have concluded that the appeal should be allowed, and that, pursuant to s 75A(6) and (10) of the Suprease me Court Act, this Court ought to make an order extending the limitation period specified in s 151D of the WC Act to 23 March 2016. It follows that the respondent's notice of motion seeking an order that the statement of claim be struck out should be dismissed.
I cannot leave the subject, however, without making the following observations. By reason of s 318 of the WIM Act, the cases of the parties are fully laid out in their Pre-Filing Statements. A full appraisal of their relative prospects of success may thus be made. There are very obvious difficulties lying in the appellant's path to successful prosecution of his claim. Just as the respondent complains of the loss of relevant evidence, so the appellant may have difficulty in locating potential witnesses - and, even if he did succeed in marshalling further evidence, he would have to bring that within the strict confines of s 318(2).
There are also, as I have outlined above, serious difficulties lying in the way of the appellant attributing his present symptoms to the 2003 incident.
Before taking any further step, the appellant's legal advisors should, in my opinion, give very serious consideration to the consequences to the appellant of a failed claim.
The orders I would make are:
Appeal allowed; orders made in the District Court on 8 September 2017 set aside;
In lieu thereof, order that the time within which the appellant is permitted to commence proceedings under s 151H of the Workers Compensation Act 1987 be extended to 23 March 2016;
The respondent's notice of motion filed on 19 December 2006 dismissed.
The respondents to pay the appellant's costs of the appeal and of the proceedings in the District Court.

Endnotes

Gower v State of New South Wales [2017] NSWDC 60 ("Gower").
Workplace Injury Act, s 261(1).
Workers Compensation Act, s 66(3).
Workplace Injury Act, s 281(1).
Workplace Injury Act, s 281(2B).
Section 314 was amended in 2012, but not in a manner presently relevant.
Then known as the WorkCover Guides for the Evaluation of Permanent Impairment, gazetted on 21 December 2001.
WorkCover Guides (2001), p 8; now par 1.15 of the current Guidelines.
Compare Ali v AAI Ltd [2016] NSWCA 110 at [85] (Leeming JA).
Medical assessment certificate of permanent impairment, 9 June 2005, par 11.
Certificate, par 7.
The statement in Opoku v P & M Quality Smallgoods Pty Ltd [2012] NSWSC 478 at [63] that time under s 151D ran from the time the plaintiff's cause of action accrued which was not until his degree of permanent impairment was resolved was mistaken. Section 151D does not provide that time runs from the date of accrual of the worker's cause of action, but from the date of the worker's injury. As Gibson DCJ pointed out in Parry v Masterpet Australia Pty Ltd [2013] NSWDC 71 the statement was inconsistent with decisions of this Court including State of NSW v Donnelley [2004] NSWCA 133 and Scaltrito v NRMA Insurance Ltd [2003] NSWCA 63 where the degree of impairment had not been assessed or otherwise resolved; and Strasburger Enterprises Pty Ltd t/as Quix Food Stores v Sarina [2008] NSWCA 354 at [3], [15] and [29]).
It is unnecessary to consider what would be the position if the psychological injury for which proceedings were brought occurred at a materially later time to the physical injury, or at an indeterminate time.
The information was first conveyed by Mr Gower to Mr Evers on 23 October 2014. 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: 19 June 2018

Limitations of Actions Act 1974(Qld)

Workers Compensation Commission Rules 2011(NSW)

Occupational Health and Safety Regulation 2001(NSW)

(Limitation of Actions Act 1936(SA)

Workplace Injury Management and Workers' Compensation Act 1998(NSW)

Legal Profession Act 1987(NSW)

Legal Profession Act 2004(NSW)

At a glance

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Judgment (28 paragraphs)

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Legislation Cited (16)

Cases Cited (35)

Cited By (34)