Humble v HMS Australia Operations Pty Ltd

Supreme Court of NSW|2020-07-15

Judgment

HER HONOUR: By summons filed 25 March 2020, the plaintiff seeks an order that leave be granted to file and serve a statement of claim out of time. The defendant opposes the granting of leave.
The plaintiff is Rodney French Humble. The defendant is HMS Australia Operations Pty Ltd ("HMS Australia"). The plaintiff relied upon his affidavits dated 25 March 2020 and 23 April 2020, and of his solicitor Stuart Brendan Barnett dated 25 March 2020. Neither of the deponents were required for cross examination. The defendant did not rely upon any affidavit evidence.
This is an application pursuant s 151D of the Workers Compensation Act 1987 (NSW) as amended, as it applies to "workers in or about a coal mine".
Section 151D of the Workers Compensation Act relevantly reads: "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. …"
This summons was filed two years and eight months outside of the three year limitation period under s 151D(2).

The plaintiff's submissions

For the purposes of this application only, I have taken the plaintiff's evidence at its highest, which is as follows.
The plaintiff was born in 1967. The plaintiff grew up in Boggabri and attended Gunnedah High School, leaving in 1983 without a certificate. Although he was married, he and his wife have been separated for over a year. She is not dependent upon him.
In January 2014, he commenced work with LOE Corporation Pty Limited ("LOE Corporation") in a logistical/supervisory role in drill and blast operations at the Werris Creek Open Cut Mine ("the mine"). After LOE Corporation was bought out by HMS Australia, the plaintiff was appointed as a supervisor at its Bluevale ANE Plant.
On 5 June 2014, while working at the mine, the plaintiff injured his left knee when he stepped into a gap between a set of steps and a storage container ("the accident"). Previously the steps and the container had been connected, so he had had no reason to suspect that the gap was there. The defendant has conducted an investigation, and three photographs of the stairs are annexed to the plaintiff's latter affidavit.
After the accident, the plaintiff began to favour his left knee and leg, resulting in increasingly severe symptoms in his right knee.
The plaintiff has undergone numerous surgical procedures on his left knee at the hands of his orthopaedic surgeon, Dr Bruce Caldwell. Those surgeries occurred on 26 August 2014, 12 January 2015, 11 January 2016, 20 February 2017, 6 March 2017, 10 July 2017, 31 August 2017, 27 November 2017, 4 March 2019 and 20 June 2019. The plaintiff has also sought a second opinion from orthopaedic surgeon Dr Richard Verheul.
On 25 February 2019, the plaintiff was made redundant, despite his hope to return to work with HMS Australia. Since his redundancy, he has been able to find employment with TFSS Pty Ltd at Tamworth. He hopes to be a youth support worker. He says that his role is casual and pays approximately $33 per hour, and that he does not expect to receive many hours per week.
The plaintiff had hoped to retain work either with the defendant or in the coal industry generally, where there is demand for the sort of work he did in the open cut mining sector. He enjoyed his work and was accustomed to earning $1,500 net per week and more.
On 30 April 2019, the plaintiff first consulted Stuart Barnett of Slater & Gordon. Mr Barnett informed him that the time for bringing any claim for damages arising out of the accident had expired, and depending upon the result of investigations and advice from counsel, it would be necessary to make an application to proceed out of time.
On 24 July 2019, the plaintiff had a telephone conversation with his barrister, Dennis Richard Benson, from the rooms of Slater & Gordon in Newcastle. Mr Benson asked the plaintiff a number of questions relating to the accident and the plaintiff's treatment and work.
On 18 December 2019, the plaintiff had a telephone conversation with Mr Barnett. The plaintiff told Mr Barnett that he had learned that the day before the accident, an employee of the defendant named Nathan Bendall was reversing a truck which collided with the steps and/or container on the work site, creating the gap into which the plaintiff stepped. The plaintiff had also learned that another employee of the defendant, Kevin Waldock, was guiding Mr Bendall as he reversed. The plaintiff's lawyers advised him that the accident appeared to be the result of a breach of duty of care, particularly on the part of Mr Bendall, for which the defendant was vicariously liable. This was a term the plaintiff had never heard of before.
The plaintiff says that his lawyers advised him that if his evidence and the medical evidence were accepted, he would be likely to discharge his onus under ss 151G and 151H of the Workers Compensation Act.
The plaintiff's solicitor, Mr Barnett, largely confirms the plaintiff's evidence. He also stated that the plaintiff first consulted Slater & Gordon on 30 April 2019, instructing him to investigate his rights pursuant to the Workers Compensation Act as it applied to coal miners.
With this is mind, Mr Barnett arranged to obtain a copy of the clinical file of Dr Caldwell, which he ultimately received on or about 10 July 2019.
On 8 July 2019, Mr Barnett arranged a telephone conference with the plaintiff and Mr Benson of counsel. Based upon the advice of Mr Benson, Mr Barnett arranged for the plaintiff to be assessed to determine the presence and extent of any permanent injuries and disabilities resulting from the accident. Mr Barnett also made investigations into who owned and operated the truck which is alleged to have backed into the access steps and container. These investigations confirmed that the vehicle was operated by Mr Bendall, with the guidance of Mr Waldock, both of whom were employees of the defendant.
Both Mr Benson and Mr Barnett agreed that there were reasonable prospects of proving the following: 1. that the defendant was vicariously liable for the negligent act or omission of Mr Bendall in colliding the vehicle into the container and/or access steps; 2. that the defendant had breached its duty to the plaintiff by failing to enforce a safe of system of work with respect to operating the vehicle around the container at the mine; and 3. that the defendant had beached its duty to the plaintiff by failing to either inform workers that the access way had been damaged, or otherwise barricading it off to alert workers to the defect.
Mr Barnett was of the opinion that as a consequence of the accident, the plaintiff had sustained an injury serious enough to discharge his onus under ss 151G and/or 151H of the Workers Compensation Act as it applies to coal miners, potentially entitling the plaintiff to significant damages.
In this application, the plaintiff relied upon Salido v Nominal Defendant (1993) 32 NSWLR 524; (1993) 18 MVR 1 ("Salido"). While the application in Salido related to an application under s 52(4) of the Motor Accidents Act 1988 (NSW), the applicable principles are similar if not identical to those to be applied in the current application.
In Salido at 532, Gleeson CJ provided the following guidelines with respect to the exercise of the discretion available to the court: "1. Section 52(4) confers a discretion which is to be exercised judicially, in a manner that furthers the purposes of the statutory context in which it appears. The immediate purpose, as with any limitation period, is to protect defendants against the injustice of stale claims; the statute is also aimed at promoting forensic diligence. 2. Bearing in mind those statutory purposes, the question is whether, in the circumstances of each individual case, the applicant for leave has demonstrated that it is fair and just that leave should be granted. 3. The diligence, or lack of diligence, shown by a plaintiff or a plaintiff's representatives, in ascertaining and asserting his or her rights will ordinarily be a material factor, as will the extent of the relevant delay, and the reason for it. 4. The nature and extent of any forensic disadvantage to a defendant resulting from a plaintiff's delay will also be material. The effect, if any, of the delay upon the defendant's ability to defend an action is a matter to be taken into account, and may in some cases be of decisive importance. 5. Leave under s 52(4) may be refused if it would be plainly futile to grant it, and in that connection an applicant's willingness and ability to give a full and satisfactory explanation of any delays in reporting to police, notifying claims and commencing proceedings will be material."
In Holt v Wynter at [118], Sheller JA referred to Salido as follows: "[118] Powell JA in Salido at 541 said that two questions needed to be determined by the Court: '1. Whether a sufficient explanation has been given for the failure to commence proceedings in due time; and 2. If so, whether, having regard to all the circumstances of the case, it is fair and just to grant, or to refuse, the application." His Honour did not address the particular situation of a finding of significant prejudice to the potential defendant."
The plaintiff's counsel submitted that the defendant and its insurer have fully investigated the plaintiff's injury and claim. The defendant, through its insurers, continues to pay benefits to the plaintiff pursuant to the Workers Compensation Act. The plaintiff has taken every step by way of treatment and rehabilitation, and returned to work to mitigate his loss. He took timely and reasonable steps to ascertain his legal position once he became incapacitated for work on 25 February 2019, not having had prior legal advice.
Counsel for the plaintiff submitted that the plaintiff's affidavit, together with that of his solicitor Mr Barnett, satisfies the following criteria: 1. It sufficiently explains the reasons for delay, in that beyond the three-year time limit following the injury, the plaintiff reasonably believed that he would remain in the employ of the defendant. 2. It provides a sufficient basis on which to expect that the proposed proceedings are more than merely arguable both in respect of liability and damages. 3. It demonstrates that the injury is sufficiently serious to allow the plaintiff to discharge his onus under ss 151G and/or 151H of the Workers Compensation Act as it applies to coal miners. The available medical evidence is significantly supportive, noting that the plaintiff's pre-injury earnings were about $1,600 net per week. Even in the event that it was found at trial that the plaintiff's loss of economic capacity was only 50% of this amount, then damages for future economic loss may amount to $375,000.

The defendant's submissions

The defendant does not allege that it suffers from any actual prejudice due to this application, but says that it suffers from presumptive prejudice: see Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; (1996) 139 ALR 1 ("Taylor"). A copy of the proposed statement of claim is in evidence. The defendant does not dispute that the plaintiff has a real case to advance. However, the defendant contends that within the limitation period, the plaintiff was aware of the factual circumstances of the accident. He also knew that he had sustained serious injuries to his left knee, as he had five medical procedures performed in that time. The defendant inferred that the plaintiff was aware of his legal rights.
The defendant relied on Holt v Wynter (2000) 49 NSWLR 128; (2000) 31 MVR 467; [2000] NSWCA 143; Taylor and Itek Graphix Pty Limited v Elliott [2001] NSWCA 442 ("Itek Graphix"). In reference to Itek Graphix, counsel for the defendant submitted that it can be inferred that the plaintiff made an informed decision not to seek legal advice until he was made redundant.

Resolution

The plaintiff's explanation for delay is that he had hoped to keep working, but was instead retrenched on 25 February 2019. He had not received legal advice before that date. Contrary to the defendant's submissions, I do not infer that the plaintiff deliberately elected not to pursue his legal rights before he was retrenched. Rather, it is my view he wanted to "soldier on" and continue to work in the hope his injury to his left knee would improve. At best, he knew the factual circumstance as to how the accident occurred, but did not know he had a cause of action.
The plaintiff says he first consulted with Mr Barnett on 30 April 2019. Mr Barnett reached out to the plaintiff's orthopaedic surgeon and received the plaintiff's medical records on 10 July 2019. Shortly thereafter on 24 July 2019, the plaintiff spoke with his barrister, Mr Benson. They had another conversation on 18 December 2019, in which the plaintiff told Mr Benson and Mr Barnett that he had learned that Mr Bendall, guided by Mr Waldock, had driven the truck that created the gap into which the plaintiff stepped in his accident. It was during this 18 December 2019 phone conversation that the plaintiff's lawyers first told him that the defendant may be vicariously liable for this breach of duty. The summons was then filed on 25 March 2020, which is less than 12 months after the plaintiff first consulted with his solicitors.
For its part, the defendant fully investigated the accident and paid the plaintiff accident pay and compensation to date. It has not put on any evidence of actual prejudice in relation to this application. However, I accept that with the passing of five years and eight months since the accident occurred, there is presumptive prejudice.
The plaintiff has a real case to advance and has suffered serious injury to his left knee.
In these circumstances, I am satisfied that both parties will receive a fair trial. It is my view that the plaintiff's explanation for delay is sufficient and satisfactory. As such, I am satisfied that it is just and fair that I grant an extension of time for filing the statement of claim.
Costs are reserved.

The Court orders that: (1) Leave is granted to the plaintiff pursuant to s 151D of the Workers Compensation Act 1987 (NSW) to file a statement of claim. Such statement of claim is to be filed within 21 days. (2) Costs are reserved.

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: 17 July 2020

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