Hawley v Wesley Community Services Ltd

Background

1. The plaintiff sues the defendant by a Statement of Claim filed on 27 May 2020. The plaintiff was employed by the defendant as an Assistant in Nursing. The plaintiff alleges that on 4 August 2011 in the course of her employment she had to manually lift a heavy patient and that during the course of the lift she sustained personal injuries.
2. The Statement of Claim pleads that the defendant was negligent.
3. The Defence filed on 25 June 2020 denies negligence and alleges contributory negligence. The Defence pleads that the plaintiff is out of time because of the three year limitation period in s 151D of the Workers Compensation Act 1987 (NSW) (the Act).
4. The plaintiff filed a Notice of Motion on 31 August 2020 seeking a grant of leave pursuant to s 151D for an extension of time to proceed with the work injury damages claim.
5. There was no affidavit from the plaintiff herself. The plaintiff tendered the affidavit of her solicitor Aadil Ahmed dated 31 August 2020 (PX 1). The plaintiff first instructed her present firm of solicitors on 8 September 2017. Prior to that she had instructed two other firms of solicitors.
6. Exhibit PX 1 annexed documents concerning a lump sum compensation claim made pursuant to s 66 of the Act on 15 January 2014 for a 17% Whole Person Impairment (WPI). On 26 September 2015 the plaintiff was assessed by an Approved Medical Specialist at 11% WPI. On 31 December 2014 the Workers Compensation Commission issued a certificate confirming the Medical Assessment Certificate. Apart from the bare recitation of these matters there was no other information.
7. Exhibit PX 1 says that in 2012 the plaintiff came under the care of Dr Maxwell, an orthopaedic surgeon. In May 2017 she was referred to Associate Professor Papantoniou, a spinal surgeon. In November 2017 the plaintiff underwent a L4/5 discectomy. She then had several months of rehabilitation. In January 2019 the plaintiff underwent a lumbar spinal fusion operation. There were no reports from these treating doctors.
8. Exhibit PX 1 then sets out the pre-litigation steps taken by the plaintiff's current solicitors. The chronology of steps taken commences on 20 August 2019. There was no evidence about any steps taken by the plaintiff's current solicitors between 8 September 2017 and 20 August 2019. There was no evidence about any advice given or steps taken by the plaintiff's previous solicitors who acted for her between a date unknown and 8 September 2017.
9. The defendant had the plaintiff examined by Dr Pillemer on 13 January 2020. On 7 February 2020 the solicitors for the defendant conceded that the plaintiff had satisfied the 15% WPI threshold, which effectively enabled her to bring court proceedings for a work injury damages claim.
10. No evidence was called by the defendant.

Legislative Framework

1. Subsection 151D of the 1987 Act relevantly 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."
2. In Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447, McColl JA (Meagher and Barrett JA agreeing) said at [44]: "Section 151D(2) does not spell out specific criteria to be taken into account by the court when exercising the discretion to extend the time to commence court proceedings sought to be commenced more than 3 years after the injury was received: cfs58(2), 60C(2) Limitation Act 1969 (NSW); s l09 Motor Accidents Compensation Act 1999 (NSW)."

The Test

1. The general principles applying to an "extension" of time (as opposed to the present approach in limitations actions) were discussed in Salido v Nominal Defendant (1993) 32 NSWLR 524 at 537- 538: "The primary rule is that each case must be determined on its own facts; The onus of establishing an entitlement to a grant of leave is upon the applicant. The fact that the defendant will suffer some forensic disadvantage through the extension is not of itself decisive, although it is a relevant consideration; and while the discretion is not to be narrowly construed, the applicant must demonstrate that it is fair and just that leave be granted."
2. The question to be asked then when considering whether to exercise the broad discretion conferred by s 151D(2) is what is fair and just in the circumstances or alternatively what the justice of the case requires: Itek Graphix Limited v Elliott [2001] NSWCA 442; (2002) 54 NSWLR 207 per Ipp AJA, at [87]: "In my opinion, in limitation legislation such as s151D(2) of the Workers Compensation Act, where a broad discretion is conferred to grant leave to sue after expiry of the limitation period, the general question that has to be asked is what is fair and just (per Gleeson CJ in Salido). Or what does the justice of the case require (per McHugh J in South Brisbane Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541]). 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 refers."
3. McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at [6] identified four rationales when considering extending the limitation period: 1. As time goes by relevant evidence is likely to be lost. 2. It is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed. 3. It is desirable for people in the community to be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Many in the community have a significant interest in knowing that they have no liabilities beyond a definite period. 4. The public interest requires that disputes be settled as quickly as possible.
4. The test for determining what is "fair and just" or what the justice of the case requires can be broken down into two central issues.
5. In Itek Ipp AJA said that the first issue to be resolved by the court is whether the applicant, who applies for leave to bring proceedings after expiry of a limitation period, provides a reasonable or adequate explanation for the delay and shows there has not been an absence of diligence on his or her part. The second issue to be resolved concerns prejudice and whether leave to commence proceedings would result in an unfair trial.

The Explanation

1. Adequacy of explanation is of most relevance where the plaintiff has made a deliberate and fully informed decision to allow a statutory limitation period to expire (Itek, at [91]).
2. Ipp AJA observed that where a delay is deliberate and fully informed, it would be a powerful factor against the grant of leave and ordinarily it will be difficult to provide an explanation for such a decision sufficiently cogent to warrant the grant of leave (at [91]). Sheller JA agreed with Ipp AJA describing it as a "potent circumstance which must be taken into account and will ordinarily weigh heavily against an applicant" (at [4]).
3. Expanding on this point, Handley AJA in Walters v Cross Country Fuels Pty Ltd [2009] NSWCA 10 at [37] said: "In my judgment, the principle applied by the court in Itek Graphix Pty Ltd v Elliott is of some generality and does not depend on a deliberate decision with knowledge of the precise limitation period prior to its expiry. Rather, it depends on a deliberate decision on legal advice that proceedings should not be commenced at common law that is adhered to until after the limitation period had expired."
4. The Court of Appeal in Howley (per McColl JA) held that it is important to take into account Ipp AJA's statement in Itek "that a failure to give a satisfactory explanation will often not be decisive and that ordinarily the issue of prejudice will be paramount". As Hodgson JA explained in ASB-Tech Services Pty Ltd (In Liq) v Doeland [2003] NSWCA 167 at [34], the question of an explanation is not a discrete one.

The Prejudice

1. Ordinarily, the issue of prejudice is of paramount importance (Itek at [3]).
2. Here, the defendant points to no actual prejudice and relies only on presumptive prejudice.
3. With respect to "prejudice", in Howley McColl JA pointed out at [48]: "The effect of Brisbane South 'is 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 (Meagher and Handley JJA and Brownie AJA agreeing). 'Significant prejudice means such prejudice as would make the chances of a fair trial unlikely': The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 (at [96])."
4. In Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 a five member bench of the Court of Appeal applied the test of Toohey and Gaudron JJ in Brisbane South (at 550): "The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent."
5. Presumptive prejudice is not an automatic bar in the absence of demonstrated significant prejudice: Saad v J Robins & Sons Pty Limited [2003] NSWCA 87 at [35]; McMartin v Huricon Manufacturing & Sales Pty Limited [2014] NSWSC 1812 at [35].
6. If the defendant does seek to rely on actual prejudice, the onus is on the defendant to adduce evidence pointing to actual prejudice caused by the passage of time: Sydney City Council v Zegarac (1998) 43 NSWLR 195, per Mason P at 197.

The Onus

1. In Brisbane South Regional Health Authority v Taylor, after referring to this persuasive onus, Toohey and Gummow JJ said (at 547): "There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission (Viet) in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Ptv Ltd: 'It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.'"

Issues for Determination

1. The issues for determination are: 1. Whether the plaintiff has an arguable cause of action. 2. Whether the plaintiff has provided a reasonable or adequate explanation for the delay. 3. Whether there has been an absence of diligence on the part of the plaintiff. 4. Whether the plaintiff has made a deliberate and fully informed decision to allow the statutory limitation period to expire. 5. Whether there is prejudice. 6. Whether leave to commence proceedings would result in an unfair trial.

Consideration of the Issues

1. There is no evidence from the plaintiff about how her injuries were suffered. It is usual in these applications to see an affidavit by the plaintiff, or at least a signed statement by the plaintiff which has been provided by the plaintiff to the defendant some time before. It is not uncommon to see an expert report which considers the system of work which the plaintiff alleges, and offers an opinion relevant to the particulars of negligence pleaded. In this case there is no such material. One suspects that it may exist, but the plaintiff bears the onus of convincing the court to exercise a discretion in her favour. She has provided no evidence to establish that she has an arguable case. Counsel for the plaintiff pointed to the allegations pleaded in the Statement of Claim, but they are not evidence. The weakness of a plaintiff's case is a matter relevant to the exercise of the discretion under s 151D: Gower v State of New South Wales [2018] NSWCA 132 at [149].
2. The plaintiff has provided no explanation for delay, either by her own evidence or by evidence by any of her solicitors about events prior to August 2019. Further, there is no evidence from which the court can make findings about diligence or lack of diligence, or about whether the plaintiff has made a deliberate and fully informed decision to allow the limitation period to expire. These are matters which should be the subject of evidence, but there is none. Again one suspects that such evidence might be available, but it is not enough just to point to the date on which a 15% WPI assessment was made and submit that there was nothing the plaintiff could have done before then anyway.
3. There was no submission for the defendant that there is actual prejudice. In the absence of any detail about the plaintiff's case on liability, and the sketchy information put before the court on medical matters, the risk that presumptive prejudice exists cannot be glossed over.

Conclusion

1. There is no evidence to establish an arguable cause of action. There is no reasonable or adequate explanation for the delay. There is no evidence on the crucial matter of whether the plaintiff has been guilty of a lack of diligence. There is no evidence on the crucial matter of whether the plaintiff has made an informed and deliberate decision to delay commencement of proceedings until after expiry of the limitation period. While there is no actual prejudice, I must take into account presumptive prejudice.
2. Because of the lack of evidence in the circumstances I cannot even form a view as to whether or not the delay has made the chances of a fair trial unlikely. This court is not a rubber stamp for applications under s 151D. The plaintiff has to call sufficient evidence to persuade the court to exercise a statutory discretion in her favour. She has failed to do so.

Orders

1. The orders are: 1. Dismiss the plaintiff's motion filed on 31 August 2020. 2. Order the plaintiff to pay the defendant's costs of the motion.

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