Iselin v Resource Pacific Pty Ltd t/as Ravensworth Underground Joint Venture formerly Resource Pacific Limited t/as Newpac No. 1 Colliery

The first accident 4The plaintiff injured his right knee while walking along the "rib edge" of heavy damp sludge during his 2 September 2007 shift. He reported his injury to a Mr G Randall and, although he could not remember the time of the incident during the shift, filled out the rest of the Coal Mines Insurance Employee's Compensation form. 5This form, an annexure to the plaintiff's affidavit, contains his statement that he had suffered previous injury to this part of his body before the accident and that the knee had been "progressively getting worse". He described the circumstances of the 2 September 2007 injury as being at South Mains and being as follows: "HAVE TWISTED THE KNEE SEVERAL TIMES AND HAVE PERSERVERED [sic] WITH IT BUT THIS TIME IT IS VERY PAINFUL" He added, in the section "Other Similar Injuries": HAVE INJURED KNEE SEVERAL TIMES ON THE SLIPPERY & UNEVEN FLOOR CONDITIONS" 6The plaintiff first saw the doctor referred to in this form (Dr Bajic) three days after the injury. He then underwent extensive treatment, paid for by the workers' compensation insurer. That treatment included a right knee arthroscopy on 2 October 2008, following which he was certified fit for duties on 22 October 2007 by the specialist, Dr Petrelis, and returned to the mine on selective duties. He again sought medical advice on 14 September 2008, and Dr Caldwell performed a right knee tibial osteotomy on 29 September 2008. The plaintiff returned to pre-accident duties on 28 May 2009.

The second accident 7The plaintiff describes how the second accident occurred in his affidavit sworn 25 March 2014 (Exhibit A): "5. My right knee deteriorated and required a tibial osteotomy with internal fixation performed by Dr Bruce Caldwell at Toronto Private Hospital on 29 September 2008. When I returned to work subsequent to this surgery performing selective duties in 2009, I was advised that before being permitted to return to my pre-injury duties, I was required to walk the second egress. I recall the then Safety Officer coming to see me to advise of this requirement. I said to her in words to the effect: "I don't know how I'll handle that. From what I remember of the roads they are very rough and hard to walk on. I'm concerned for my knee." She responded: "Just do it. See if you can do it." Whilst performing this test on 12 August 2009, I suffered additional injury to my left knee. I was on my own at the time of performing this test. I doubt that the Safety Officer had ever walked the second egress." 8The plaintiff described this egress in his evidence as having been several kilometres long, most of it sloping, and culminating in a series of ten or more ladders of about 14 steps each. Despite suffering pain in both knees, the plaintiff continued working underground. He underwent an arthroscopy on 11 January 2010 on his left knee but the problem continued. In his affidavit, he described the circumstances of his continued deterioration as follows: "6. Despite the injuries to my bilateral knees, I persevered and continued working underground. My injuries progressively deteriorated to the extent that I required total knee replacements on 29 August 2011 with respect to my left knee, and 30 May 2013 with respect to my right knee. Coal Mines Insurance [CMI] paid for both these surgeries and all treatment I have ever required with respect to my right and left knee conditions since 2 September 2007. CMI are continuing to pay for my treatment with respect to my bilateral knee conditions to date. 7. It became apparent to my employer that I was no longer capable of continuing in my role as underground coal mining deputy on 7 January 2011. I recall that day clearly. I turned up for work. I was performing my pre-injury duties at that stage. I was working underground. I attended an Undermanager briefing as usual in the morning. I later instructed my crew as to the day's requirements. Subsequently, I was called to a meeting with the Manger [Ian Clifton], Gary Randall, the Safety Manager and two others. Mr Clifton advised me that I was to be medically retired to satisfy the Mine's duty of care to me. I was not expecting to be medically retired that day. I was shocked. I was not in a financial position to retire. I had hoped to be able to continue working until I was about 67 years of age. I said my goodbyes to my work crew and work mates and left the site. That was the last day I ever worked as a coal miner." The plaintiff seeks legal advice 9The plaintiff's medical expenses up until termination had been paid by his employer. After being medically retired on 11 November 2011, he contacted his union representative "for advice as to what to do" (affidavit, paragraph 9). He advised that the plaintiff should seek legal advice. 10In an apparent inconsistency, the plaintiff said that he consulted a Ms Michelle Lawrence of Emery Partners in or about February 2011, but that she advised him that his condition would have to stabilise before she could give legal advice as to the plaintiff's options and prospects. As the plaintiff had to undergo a total knee replacement on 29 August 2011, and was not formally terminated until 11 November 2011, it seems more likely than not that no formal legal advice was given. 11It was put to the plaintiff that he knew about limitation periods because he had been involved in a serious mining injury in the 1980s when he had been trapped in a mine in Queensland. It was put to him that he knew about common law rights and the three-year limitation period as a result. I propose to treat that submission with caution, as there is no evidence the relevant Queensland limitation period in the 1980s was in fact a three-year period. 12The plaintiff did learn about the limitation period when he consulted Ms Nada Vujat of Emery Partners in about April 2012. The plaintiff's condition still had not stabilised. After a medical assessment by Dr Hopcroft in August 2012, he had a further arthroscopy of the right knee and removal of plates by Dr Workman on 17 December 2012 . However, he was then advised he needed a total right knee replacement on 30 May 2013. Proceedings were then commenced on 24 October 2013.

The parties' submissions 13The plaintiff submits that the degree of seriousness of the plaintiff's injuries and of his inability to continue working were vital questions to answer when determining whether or not to make an election under s 151A Workers Compensation Act 1987 (NSW). The plaintiff's condition had to stabilise in order for him to obtain an assessment accurately reflecting his medical condition. The defendant had been aware from the first of the nature and extent of the plaintiff's injuries and how they happened, had been continuously informed throughout, and had in fact funded the plaintiff's ongoing treatment. Accordingly, an extension of time should be permitted. 14The defendant submits that an extension of time should not be granted because: (a)There is evidence that prejudice will be suffered over and above the presumptive prejudice likely by reason of the delay in commencement of proceedings; (b)The plaintiff's claim advances a case wholly inconsistent with the evidence of injury, in that the description of one accident occurring as pleaded conflicts with the history of other injuries set out in the claim form (Exhibit A); (c)There is real doubt, from the medical notes of the plaintiff's treating doctor, whether the second accident happened at all, as it is not specifically identified in the notes from Southlakes Medical Group (Exhibit 1); and (d)The explanation for delay after the plaintiff sought legal advice contains significant gaps.

The relevant principles 15Section 151D relevantly provides: "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." 16The relevant principles are helpfully set out in Merton v Manildra Energy Australia Pty Ltd [2013] NSWSC 1482 at [27]ff per Hoeben CJ at CL, where his Honour sets out the structure of the legislation and its interpretation by Basten JA in Strasburger Enterprises Pty Ltd trading as Quix Food Stores v Serna [2008] NSWCA 354 (with whom Gyles AJA and Hoeben J agreed) at [52]: "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 535-539 (Kirby P) and 541 (Powell JA). Subsequently, the High Court provided guidance as to the correct approach inBrisbane South Regional Health Authority v Taylor [1996] HCA 25 ; 186 CLR 541, 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 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 ... ." 17There is always a presumption of some prejudice where there is a delay of this kind (three years and one year respectively) in commencing proceedings: Brisbane South Regional Health Authority v Taylor (1996) 206 CLR 54; I have carefully considered the four rationales explained by McHugh J at 552 - 3. Counsel for both parties referred me to the relevant principles for s 151D(2) as discussed in Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207. 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 was concerned with an additional consideration, namely that the prospective plaintiff had deliberately decided, on an informed basis, not to proceed within the specified period, but that is not the case here.) 18Having noted the importance of "actual significant prejudice", I now consider each of the submissions raised by Mr Stanton.

Is there actual prejudice? 19The first two objections (see (a) and (b) above) raised by the defendant are a claim that a fair trial of the proceedings cannot take place because of actual prejudice. The first of these rests on the plaintiff's statement during cross-examination that Mr Randall (to whom the first accident had been reported) had left the defendant's employ some time before 2011. The basis for the second such claim is the asserted inconsistencies between the description of the accident in the statement of claim and the claim form, which Mr Stanton submits are such that the defendant cannot understand whether one or more accidents occurred. 20Mr Randall was the person to whom the accident was reported by the plaintiff. It is agreed that his evidence would be limited to the circumstances surrounding that fact, and to the production of contemporaneous documentation in relation to the reporting of the accident, although his recollection of the circumstances of the time would also be of assistance. 21The mere fact that Mr Randall is no longer in the employ of the defendant is insufficient to amount to significant prejudice. The highest that such evidence could be put is that, if inquiries are now made, he may not be able to be located, or, if he can be found, he may not be able to recall these events. A similar submission was put in Taouk v Taouk [2010] NSWCA 372 at [73] - [77] but, when read in context, was considered by Sackville AJA to amount to a statement that the delay in reporting the accident may have affected the recollection of persons not asked to give statements at the time, which was insufficient to establish substantial prejudice. In addition, in Taouk, a number of witnesses fell into this category; in the present case, the other witness named by the plaintiff (Mrs Mrsic) was still working there when he left. 22The plaintiff's application for an extension of time in Taouk was rejected on other grounds, but not on this ground. The evidence in this case is significantly weaker, and must similarly fail. 23Mr Stanton did not articulate how the pleading of the first accident in the statement of claim meant that a fair trial could not take place, beyond conceding that if the statement of claim referred to the plaintiff having prior difficulties in negotiating the mine (which is a "wet mine" and therefore prone to slipperiness and uneven surfaces), that would obviate the problem. The extensive medical documents and histories given by the plaintiff should ensure that any uncertainties as to causation issues can be addressed by reference to this material. 24Mr Stanton also submitted that the limited description of the accident on the claim form meant that the precise act of negligence was not clear. In that regard, however, the defendant has a very clear account, in the statement of claim, of the precise description of remedial works the defendant failed to carry out which resulted in this part of the mine being in the state that it was. The particulars of negligence, while general, clearly relate to the circumstances in which the defendant failed to take steps to drain the mine adequately, steps which were later taken by another company, Glencore Xstrata PLC which, by the simple technique of digging trenches which were then filled with rubble, created drains to collect ground water which was then pumped to the surface (see paragraphs 4 - 6 of the statement of claim).

Did the second accident happen? 25Mr Stanton tendered a bundle of records for the Southlakes Medical Group, a medical centre where the plaintiff attended for treatment over the relevant period. He generally saw Dr Thrift but on occasion saw Dr Drew, Dr Shean, Dr Jonker, Dr Osmotherly, Dr Moses, Dr Dao, or one of the nurses . The notes for his visits are brief computer entries. 26Mr Stanton points to the entries for 12 August 2009. He was seen by the registered nurse, Ms Zaska, who only recorded "History obtained and relevant examination made. Treatment orders given as documented". He was also seen by Dr Thrift on 14 August, who noted: "I will complete his W/C form next week when his current limitations are confirmed." The actions recorded related to letters about the right knee injury only. In addition (although not referred to by counsel) the covering letter briefly listing the plaintiff's treatment in 2007 refers only to "hypertension". 27If that were the extent of the documentation, there would be some force in the submission. However, the entry for 17 August notes not only his hypertension problem but adds: "Discussion as the Second Egress walk exacerbated both knee pain, but it is settling and he has to be able to do it to keep his job." On this occasion, the entry has been made by Dr Thrift only. 28On 26 August he again saw the nurse and Dr Thrift. The note reads: "History obtained and relevant examination made. Treatment orders given as documented". On 2 September he saw Dr Thrift again, who noted: "He has strained the L knee when doing the Egress on Friday 12/8/09. He had an exacerbation for one week, and then it has partially settled, but not fully resolved. He was advised to report this at work. He enjoys working, but has pain 8/10 in R knee in am, and 8 - 9/10 on the L. It gradually eases to 4/10 for most of the day." Dr Thrift repeated this history in her letter to Dr Petrelis, adding "Thank you for your assessment." There was a bilateral examination of both knees. X-rays were ordered (the reason for which was noted as "Tender medial meniscus L knee after walking 8 km for Egress") on 18 September 2009, and a letter to the defendant sent on 28 September 2009. Further entries on October 14 2009 note progress and the creation of letters to the defendant concerning "both knees" is noted. 29Whatever the reason for the nurse's failure to make a specific entry for left knee injury on 12 August (or for Dr Thrift to correct this entry, or put it in her own entry on 14 August), subsequent entries a matter of days later clearly document this, as do the medical centre's letters of referral and letters to the defendant. 30How much weight should be put upon the failure of the nurse and Dr Thrift to note the left knee issue in their entries of 12 and 14 August? The need to exercise a degree of caution in relation to undue parsing and analysing of histories taken by treating medical practitioners has been emphasised by the New South Wales Court of Appeal many times: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35], Ferguson v McDonalds [2005] NSWCA 401 at [81], Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [56]; Container Terminals Australia v Huseyin [2008] NSWCA 320 at [8]; Mastronardi v State of New South Wales [2009] NSWCA 270 at [87]; Mason v Demasi [2009] NSWCA 227 at [2]; Hill v Richards [2011] NSWCA 291 at [23]; Gulic v O'Neill [2011] NSWCA 361 at [24]. This is because: "Experience teaches that busy doctors sometimes misunderstand or misrecord history of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury." (Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35] per Beazley JA) 31The notes made by a general practitioner or nurse working in a busy medical centre need to be seen in that context. The plaintiff has clearly reported his injury and sought treatment. This submission is without merit.

Unexplained gaps in relation to legal advice 32Mr Graham submitted, and I agree, that the election to pursue common law rights is a serious matter. Mines are inherently dangerous, especially "wet mines", and the establishment of negligence, as opposed to the comparatively straightforward principles applicable to work injury, is a matter requiring close attention. Proof of the matters set out in paragraphs 4 and 5 in the statement of claim will probably require expert as well as lay evidence. The degree to which the plaintiff is injured is also relevant, and he was having surgery as late as 29 May 2013, when he had a right knee replacement. 33The defendant complains of two periods of delay: February 2011 to April 2012 and April 2012 to October 2013. 34No objection is taken to the plaintiff having delayed commencement of proceedings while he was still working at the mine (until January 2011). In practical terms, the plaintiff's problems crystallised when he was terminated on 11 November 2011. The real issue is thus what I should make of delay during the second period, namely from April 2012 to October 2013. 35While a litigant is supposed to be diligent in his own interest (Wade v Judd [2004] NSWCA 355 at [43]), Mr Iselin consulted a solicitor over the relevant period and understood the solicitors were waiting for his condition to stabilise. Since he underwent a knee replacement a matter of months before the proceedings were started, it is understandable that he trusted the representations of his solicitor: Murdock v Lipman [2012] NSWSC 983 at [22] - [23] per McCallum J. This is not a case where there was a deliberate or informed decision not to commence proceedings, or even that he received conflicting advice: Coal and Allied Operations Pty Ltd t/as Hunter Valley Operations (Howick Mine) v Stringer [2003] NSWCA 271 at [5] - [6] per Hodgson JA and at [39] - [56] per Foster AJA. Mr Iselin's health concerns and impending operation would have preoccupied him for most of this period, and what little he knew about limitation periods from prior proceedings in Queensland in the 1980s would have been of slight assistance or practical use in understanding his rights and obligations. From my observation of his demeanour in the witness box, Mr Iselin has the same vulnerabilities as those discussed by Foster AJA at [39] - [56], and should be granted the same indulgence of an extension of time. 36I propose to grant the relief sought.

Costs 37Mr Stanton submitted that the plaintiff should pay the defendant's costs because the plaintiff is seeking the indulgence of an extension of time, this being put to me as the usual order. 38Costs orders are not always made against a plaintiff seeking an extension. For example, in Ryan v Forstaff Engineering Personnel Pty Ltd [2011] NSWSC 1009 at [49], after hearing submissions from both parties, Barr AJ made an order that costs be costs in the proceedings. Hoeben CJ at CL made a similar order in Merton, supra, at [36]. In my view, this is the order that I should also make in these proceedings.

Orders (1)An order pursuant to s 151D Workers Compensation Act 1987 (NSW), nunc pro tunc, granting leave to continue these proceedings against the respondent. (2)Costs to be costs in the proceedings.

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