Khalatabad v FLH NSW Pty Limited

Legislation Cited: Motor Accidents Compensation Act 1999
Workers Compensation Act 1987 ss 16, 66, 66A, 78, 151D, 151DA, 151H(1)
Workplace Injury Management, and Workers Compensation Act 1998 ss 280A, 280B, 281, 282, 315

Cases Cited: Gower v State of NSW [2018] NSWCA 132 at [4]
Smith v Grant [2006] NSWCA 244

Texts Cited: Nil.

Category: Procedural rulings

Parties: Plaintiff – Akbar Khalatabad
Defendant – FLH NSW Pty Limited

Representation: Counsel:
Plaintiff – Mr Eirth, M.
Defendant – Ms Nathan, A. (Sol.)
Solicitors:
Plaintiff – Norwest Lawyers
Defendant – Turks Legal

File Number(s): 2024/00375433

Publication restriction: Nil.

Judgment

1. HIS HONOUR: The Plaintiff, Mr Akbar Khalatabad, alleges that he sustained a personal injury by accident arising out of, and in the course of his employment with the defendant on 30 May 2019.

2. On 10 October 2024, he filed a statement of claim in this Court, claiming, in essence, work injury damages arising from that accident. The statement of claim was filed 5 years, and 19 weeks after the accident occurred.

3. The Workers Compensation Act 1987 (‘the Act’) provides in s 151D(2) that:

"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."

4. By motion, notice of which was filed on 27 March 2025, the plaintiff now seeks leave to extend the limitation period under s 151D nunc pro tunc. The relief sought is not consented to by the defendant, nor is the grant of leave opposed. The defendant filed written submissions, which have been marked 3 for identification. Essentially, the defendant's position is that the plaintiff is required to obtain the leave of the Court to proceed out of time. It is not up to the defendant to consent, but rather for the plaintiff to prove his entitlement to the relief which he seeks. As it happens, the defendant did not call any evidence, required no deponent for cross‑examination, nor made any submission.

5. I should indicate that on 16 December 2024, the plaintiff filed an amended statement of claim. Antecedent to that, the defendant filed a notice of appearance on 2 December 2024, but after the filing of the amended statement of claim, filed a defence to it on 13 December 2024. It has not been submitted that the plaintiff was not entitled to file the amended statement of claim. The plaintiff was born in Iran on 22 September 1986. He came to Australia in 2013. He is a single man. His native language is Farsi, and it appears that he does not speak English very well, if at all, other than what might be used in the workplace for basic interaction.

6. He appears to have worked in Australia in the construction industry. He has sometimes been referred to as a carpenter, but as I understand it, he has no trade qualifications. Rather, he is a labourer doing formwork carpentry. He started doing formwork carpentry work in Sydney in 2016. He obtained employment with the defendant, FLH NSW Pty Ltd in 2018. Initially, he started working for the defendant on a cash‑in‑hand basis, before being offered a permanent position in October 2018. He generally worked about six days a week for between eight and 10 hours a day. He was obviously working about 50 to 60 hours per week. He was earning, according to his affidavit, about $45 per hour.

7. He describes what befell him in this fashion in his affidavit of 27 March 2025, which is Exhibit D:

"13. On 30 May 2019, I was working at a multi‑level job site in Eastern Creek, NSW.

14. My task that day was to assist in building a deck by nailing down the timber, and plywood. I was directed to complete this work by two men known to me as Heisam and Khaled, who were foremen employed by the defendant.

15. The level I was working on was approximately 5‑6 metres in height from the level below.

16. I was wearing a hard helmet. There is also a handrail near the ladder used to access the deck. Otherwise, I was not provided with any additional safety equipment or material. I was not attached by a harness, and there was no safety railing or handrail where I was working.

17. I was told by the foreman, Heisam, to continue working during lunch, as he did not want timber to be left lying around for safety reasons.

18. At about 12pm, I was nailing plywood around the edge of the deck. This required balancing right near the edge of the deck on a thin plank. This plank was approximately 50 cm long.

19. I recall there were high winds on the day at the time. Although I had performed similar work to this kind I was performing on the site at the time of my injury, I do not recall ever doing so before in such high wind weather. I did not receive any training or instructions in relation to carrying out work of the kind I was performing in high wind conditions.

20. When I stood up, I lost my balance. I tried to reach for the handrail near the ladder, but was unsuccessful.

21. I fell backwards, and landed on the level of the plywood below.

22. There was no kind of fall arrest system, guardrails, harnesses, nets or any other equipment or device to ensure that in the event that someone lost balance, they would not fall to the deck below.

23. I felt an immediate burning pain in my back, as I was wearing a belt carrying tools around my waist at the time I fell.

24. To my knowledge, no workers onsite witnessed my fall, as everyone had left for lunch.

25. After falling, I was in significant pain, and I had trouble getting up, so I called out for help to co‑workers nearby.

26. I told Heisam that I fell. He spoke with my main supervisor, Khaled, over the radio, and told him about the accident.

27. After my accident, I went to the Eastern Creek Medical Centre near the jobsite. I saw Dr Dorothy Ting."

8. The gist of the plaintiff's accident was that he fell from a deck at one level, to a deck at a lower level, the distance being between 5 and 6 metres, as stated in [15] of the affidavit I just quoted. Sometimes, the distance given is between 6 and 7 metres. In old fashioned terminology, which would be unfamiliar to the plaintiff, he fell about 20 feet.

9. Much to my surprise, there is not before me any claim for compensation made by the plaintiff, nor is there any employer's report of injury form. The defence to the amended statement of claim alleges that there is no record of any incident involving the plaintiff, having occurred on 30 May 2019. The defendant did not admit that he was working at a height that was 5 to 6 metres from the level below him and does not admit that on the day of the alleged incident there were high winds, and otherwise denies the allegations of injury contained in the amended statement of claim. However, it appears to me to be common ground that the plaintiff has been paid workers compensation benefits by his employer.

10. In the plaintiff's written submissions, which have been marked for identification 2, Mr Eirth stated this:

"21. The plaintiff lodged a workers compensation claim within a month or two of this accident. [For that proposition, he relied upon the plaintiff's affidavit.]

22. On 7 February 2020, the insurer accepted liability for the claim: see affidavit of Ms Corinna Cook dated 6 May, page 2, paragraph 4."

That affidavit was one which had been served upon the plaintiff by the defendant but was not read by the defendant. It appears, therefore, to be common ground that the plaintiff was eventually paid compensation commencing on 7 February 2020. That is strictly relevant because under s 151D, it is an employer who is liable to pay compensation under the Act, whose worker is caught by s 151D.

11. There being no challenge to the plaintiff on his affidavit, I have to accept for the purposes of this application, that the event deposed to by the plaintiff occurred. The only things which cause me concern are two things, which are annexed to the affidavit of the plaintiff's solicitor, Mr Michael John Petricevic, affirmed on 27 March 2024, which is Exhibit A. There is a copy of a certificate signed by Dr Dorothy Ting of the Walters Road Medical Centre at Blacktown on 3 July 2019. That records this history:

"Exacerbation of back pain, back pain started when block of wood fell onto head, and patient subsequently fell sideways onto right side."

According to the same certificate, the plaintiff was first seen at Dr Ting's practice on 26 June 2019, some 27 days after the event alleged. Dr Ting also arranged for an MRI scan, which was made on 5 July 2019. The history recorded by the radiologist, Dr Tushar Singh was, "L2‑3 neuropathic pain. Fall four weeks ago? Fracture? Nerve root compression." I do not know whether Dr Singh took that history from Dr Ting, or was his view of what the history ought be. The significant finding of the MRI scan was, to use Dr Singh's terminology, "large L5‑S1 posterior central disc protrusion which compresses the S1 nerve roots." That appears to have been the diagnosis of the plaintiff's condition ever since.

12. However, I suspect that neither Dr Dorothy Ting, nor Dr Tushar Singh speak Farsi, and there may well have been communication difficulties. Eventually, the plaintiff was referred to Dr Peter Khong, a neurosurgeon. The plaintiff appears to have first seen Dr Khong on 29 January 2020. The history recorded by Dr Khong is consistent with what the plaintiff stated in his affidavit:

"Accident 5‑6 months ago. Working on a deck, fell from one level onto plywood below (7 metres), landed on back. Initially, midline lower back pain. Then started to develop left leg pain. Left buttock and posterior thigh. When standing or walking long distance, first pain and numbness in thigh, but then to posterior calf and heel, then has to sit."

13. Dr Khong's view of the MRI scan, to which I have earlier referred, was this:

"Degenerative disc disease with loss of disc space height, and hydration at L5‑S1. Central, and left‑sided disc herniation at L5‑S1 causing compression of the left S1 nerve root. Mild loss of hydration at L3‑4."

14. Initially, the doctor carried out a left S1 perineural injection. Initially also, he recommended a microdiscectomy at L5‑S1. In a report addressed to the general practitioner, Dr Eric Lim, at Parramatta, Dr Khong said that if the left S1 perineural injection was not successful, and the medication that he prescribed did not control the plaintiff's pain, that the plaintiff should have a left S1 microdiscectomy. That is what occurred. However, on 18 March 2020, the workers compensation insurer of the defendant disputed the claim for the surgery. The allegation was that the treatment by microdiscectomy was not reasonably necessary as a result of the plaintiff's injury. That caused the plaintiff to seek legal advice.

15. Eventually, on 14 August 2020, the plaintiff consulted Mr Petricevic's firm, Norwest Lawyers, who have been acting for him ever since. Before working for the plaintiff however, they needed to seek funding for the work that they were to do under the workers compensation legislation from the Independent Review Office, known generally as IRO. Eventually, the insurer agreed to pay for the surgery proposed by Dr Khong. The surgery was practised on 29 April 2021 and was, as I stated earlier, a microdiscectomy at L5‑S1. On 30 June 2021, Dr Khong provided to the plaintiff's lawyers a report indicating that he might require further surgery, a fusion at the L5‑S1 level.

16. On 10 February 2022, the plaintiff attended his solicitors and advised them that he had been approved for a fusion at the lumbosacral level, and that was to take place on 12 February 2022. Three years from 30 May 2019 was the 30 May 2022. If the plaintiff was to undergo fusion on 12 February 2022, his condition clearly would not be stable for at least six months, and perhaps up to a year after the fusion.

17. As is well known, before the entitlement to bring a work injury damages claim, an injured worker has to have been paid his whole person impairment (‘WPI’), pursuant to s 66 of the Act. To obtain his WPI, his condition had to be stable, and permanent, and no medical practitioner would certify any permanent impairment for a man who had only recently undergone spinal fusion. On the third anniversary of the plaintiff's injury, his solicitors wrote to the insurer of the defendant, and said this:

"We refer to the above claim number, and confirm we act on behalf of Mr Akbar Khalatabad in relation to his workers compensation claim.

As a result of an unsafe system of work, our client has sustained physical injuries during his employment. In this regard, we are instructed that our client was nailing plywood from a high platform when he fell backwards from the platform, and landed onto plywood below, sustaining injury to his lower back.

We advise that, pursuant to ss 281 and 282 of the Workplace Injury Management and Workers Compensation Act 1998, we put you on notice that the claimant intends to claim work injury damages if he is assessed as having a whole person impairment of at least 15%.

We provide this notice so as to allow you the opportunity to further investigate this matter."

18. On 3 June 2022, the insurer acknowledged receipt of that letter. The insurer, however, did not concede that the plaintiff had suffered a 15% or greater WPI. The plaintiff's solicitors then commenced work to obtain a WPI finding. First, they had to communicate with IRO in order to obtain the appropriate funding. They then made arrangements on 8 September 2022 for the plaintiff to be seen by Dr Nigel Hope, an orthopaedic surgeon. The examination they had arranged took place on 31 October 2022. Although Dr Hope wrote a report, the report is dated 31 October 2022, but it was not received until 22 November 2022.

19. That, in my view, does not represent a delay in postage or the like, but the fact that medical practitioners who provide qualified reports, dictate them generally on the day of the examination, but there is often a lengthy delay before the reports are actually typed. Part of Dr Hope's report says this:

"Mr Khalatabad's attitude was good, and has contributed to his recovery. All pathology has an organic basis. There was no evidence of exaggeration, symptom fabrication, or functional overlay. The history, symptoms, signs, and investigations were all consistent."

Dr Hope diagnosed a WPI of 26%. On 29 November 2022, the plaintiff's solicitors made a formal claim for the appropriate amount under s 66 of the Act, and served upon the insurer to whom the claim was addressed, a copy of Dr Hope's report. At this stage, the insurer retained Turks to act for them. They made arrangements for the plaintiff to be examined by a doctor of their own, and gave the plaintiff three options for medical examination, either by Dr Robin Diebold, by Associate Professor Craig Waller, or by Dr Paul Hitchen. The plaintiff was asked to advise Turks within three business days of which appointment the plaintiff would like to attend.

20. It is not immediately clear to me which of the three doctors the plaintiff attended. However, on 23 March 2023, Turks advised the plaintiff's solicitors that they were instructed to accept the plaintiff's claim for 26% WPI. They sent to the plaintiff's solicitors a complying agreement pursuant to s 66A of the Act. The document was completed, and returned to Turks on 27 March 2023. Approximately a month later, the plaintiff’s solicitors briefed counsel in relation to a work injury damages claim. The plaintiff conferred with counsel on 22 May 2023. On 16 June 2023, the plaintiff's counsel provided a draft pre‑filing statement for a work injury damages claim.

21. On 18 July 2023, the plaintiff’s solicitors wrote to Turks, giving formal notice that the plaintiff intended to bring a claim for work injury damages and, in essence, the letter goes on to disclose a statement of claim including all details of injury, disability, and a claim for loss of earnings. On 25 July 2023, Turks requested further and better particulars. On 30 August 2023, a draft response to the request for further and better particulars was sent to counsel for settling. However, the particulars were not delivered to Turks until 10 April 2024. The total delay in providing particulars was approximately nine months. However, thereafter things moved relatively quickly.

22. On 7 June 2024, the employer served a notice under s 78 of the Act, which declined the plaintiff's claim for work injury damages. On 12 June 2024, the plaintiff served a pre‑filing statement. On 10 July 2024, the defendant served a pre‑filing defence. On 8 August 2024, an application was made to the Personal Injury Commission for mediation. On 2 September 2024, the mediation took place, but it was unsuccessful. That lead to the filing of the initiating process on 10 October 2024. The requirement to have WPI of at least 15% in order to make a claim for work injury damages is contained in s 151H(1) of the Act.

23. Sections 280A, and 280B of the Workplace Injury Management, and Workers Compensation Act 1998 (‘the 1998 Act’) reinforce that provision. They are these.

“280A Claim for lump sum compensation a pre-condition to damages claim

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.

280B Lump sum compensation to be paid before damages recovered

(1) An injured worker cannot recover damages in respect of an injury from the employer liable to pay compensation under this Act in respect of the injury unless and until any permanent impairment compensation to which the worker is entitled in respect of the injury has been paid.

(2) This section does not prevent a claim for damages from being made before any permanent impairment compensation to which the worker is entitled in respect of the injury has been paid.”

24. It becomes obvious from the legislative scheme that no claim for work injury damages could be made until the plaintiff's WPI had been established, claimed, and paid. In essence, the delay between 30 May 2022, and 24 March 2023 is applicable to the statutory scheme itself. There then was a delay between 25 March 2023, and 18 July 2023 of some four months, but that is explicable by the need to confer, obtain instructions, and obtain counsel's advice, and lead to the formal claim under ss 281 and 282 of the 1998 Act.

25. The problem then, and when I say problem, I mean problem, is that after making the formal claim under ss 281 and 282, there was then a delay of some nine months until 10 April 2024 in providing the particulars requested by Turks. The proceedings then followed the compulsory statutory course without any, in my view, relevant delay. When one looks closely at the chronology provided, in essence by the affidavit of Mr Petricevic, the only relevant delay is that that I have mentioned between 25 July 2023, and 10 April 2024. That appears to be referable to counsel on the evidence before me. What attempts were made to hurry counsel up have not been established.

26. However, if there were some inordinate delay by the lawyers acting for the plaintiff, it was not a failure by the plaintiff himself. Delay by lawyers was considered in Smith v Grant [2006] NSWCA 244. That was a claim under the Motor Accidents Compensation Act 1999, but the same principles apply to the Workers Compensation scheme, the modified common law regime with the statutory requirements of the Workers Compensation legislation. In Gower v State of NSW [2018] NSWCA 132 (‘Gower’), a refusal by Gibson DCJ to extend the limitation period came before the Court of Appeal. Succinctly, Basten JA said at [4], this:

"To obtain leave to commence proceedings out of time, the appellant needed to establish three propositions, namely that:

(a) there was a sufficient, and acceptable explanation for each period of delay;

(b) he had a reasonably arguable claim of negligence against the State [the defendant]; and

(c) the conduct of a trial more than 12 years after the injury was suffered would not cause the State [the defendant] significant prejudice, so as to render the trial unfair."

27. There is, as I have pointed out, only one significant period of delay, and that can only be explicable by a tardiness in delivering the particulars requested by the defendant. On the question of whether the plaintiff has an arguable claim in negligence, on what the plaintiff deposed to in his affidavit, the plaintiff would have a very good cause of action. Clearly, the trial of this action if it proceeds may occur at the end of this year, or early next year. If at the end of the current year there would be a delay of six years between the cause of action arising, and the hearing, or if the trial occurs early next year, there might be a delay of seven years. The period is much shorter than the one that arose in Gower.

28. I ought to have pointed out that under s 151DA of the Act, there are periods of time which are not reckoned, on the basis, one assumes, that such time was allowable, that the statutory scheme prescribed time does not run in computing the limitation period of three years. Presumably, Parliament is stating that those times are reasonable in following the statutory scheme. For example, time does not run while a pre‑filing statement of claim has been served in accordance with s 315 of the 1998 Act in respect of the claim. The pre‑filing statement was served on 12 June 2024, and is still valid, therefore time stopped running on 12 June 2024.

29. When one works out the actual extent of the delay, excluding time when the claim could not have been brought, the delay amounts to, on my calculation, one year, 10 months, and 12 days. In the grand scheme of compensation matters, that is not particularly great. The real question, however, in cases of this nature is whether a trial that is fair to each of the parties can be held. As I pointed out, there was no submission made on behalf of the defendant. There was no evidence adduced on behalf for the defendant. There is nothing to say that the two men about whom the plaintiff speaks in his affidavit, Heisam or Khaled are not available to give evidence.

30. Later in his affidavit, the plaintiff mentioned the name of his employer's company secretary, Yusef, but he is not alleged to be unavailable. For example, two of the relevant paragraphs of the plaintiff's affidavit are these:

"29. Around one to two months after my fall, I was taken to see a different doctor [to Dr Ting], Dr Irfan Malik, by the company's secretary. The company secretary's name is Yusef.

30. Yusef and Dr Malik only spoke to each other in Arabic. I do not understand what they were saying to each other, as my first language is Farsi.

31. I was taken to see Dr Malik by Yusef around five times."

There is later reference to private conversations between Dr Malik, and Yusef, and another doctor whose identity is unknown to the plaintiff. That may be relevant to why there is no contemporaneous record of the plaintiff's injury, but what it concerns is unclear at this stage, and may only become clear if the plaintiff be cross‑examined, which did not occur clearly on this application. There is no evidence of any actual prejudice to the defendant, and no evidence that there are witnesses missing, or persons who cannot be interviewed. Furthermore, there is reference in the written submissions provided to me by Mr Eirth, for the Plaintiff, MFI 2, of two investigations being carried out on behalf of the defendant. That is, factual investigations. For one of those, he was relying again on the affidavit of Ms Cook, which was not read by the defendant.

31. As I said, there is no evidence of any prejudice, which would cause an unfair trial. One of the reasons often advanced for enforcing limitation statutes is the need for people to have certainty about finances, and not for example to be required to set aside large sums of money years after an event occurred for which no allowance was made at the time of the initial event. But in workers compensation matters, this is largely inappropriate because if there is no claim for work injury damages, in any event, there will be a large reserve provided for, for the continuing workers compensation claim in any event. That is, there is always a reserve made for any workers compensation claim. If there were to be a problem in that regard, the defendant would not have started make payment of the claim in 2020, in any event. In my view, there is no impediment to my granting the relief sought.

32. For those reasons, I grant leave to the plaintiff to commence these proceedings. I extend the limitation period until 10 October 2024.

33. By consent, costs of this application costs in the cause.

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