Klimovska v George Weston Foods Limited

4The affidavit of the plaintiff included within it a limited explanation in relation to the delay in making this application of some two years since the expiration of the limitation period under s 151D. She says in paragraphs 34 to 37 of her affidavit: "34. I have no knowledge of any time limits in relation to my claim. 35. I was aware I could make a claim for workers compensation but knew nothing else in relation to my entitlements. 36. The legal representatives of the insurance company refused to make me an offer at mediation due to their issue with Section 151D of the Workers Compensation Act. 37. Since April 2009 I have left it up to C & M Lawyers and, more recently, Paramount Lawyers, to deal with my claim as they see fit." 5The plaintiff says that leave should be granted, because the plaintiff has suffered significant injuries which were not resolved at the time of expiration of the three-year period. The defendant says leave should be refused, because there was a lack of an adequate explanation by the plaintiff. 6The defendant makes no assertion of prejudice, whether actual or presumptive, perhaps because well within the limitation period the plaintiff served the statutory notice under sections 281 and 282 of the Workplace Injury Management and Workers Compensation Act 1998, a pre-condition to a damages claim under that Act. 7No dispute was raised about the plaintiff's submission that the plaintiff's condition had worsened after the expiry of the limitation period on 26 September 2010. As the chronology reveals the plaintiff underwent a total hip replacement on 24 March 2010. The plaintiff's lawyers served a medical report on 24 January 2011 evidencing an increase in whole person impairment to forty-five per cent, an increase from the earlier figure of seventeen per cent agreed in November 2009. Ultimately, the parties agreed on twenty-nine per cent whole person impairment in June 2011. 8On 29 February 2012 the plaintiff had a hip arthroscopy and bursectomy of greater trochanter and further hip replacement surgery on 7 June 2012. It is submitted that the plaintiff was only able to pay for these operations, because of her Workers Compensation entitlements and that those entitlements would not have been available had proceedings been concluded prior to the operations. 9The defendant says that notwithstanding this worsening condition the plaintiff should not be granted leave because of the failure to provide an adequate explanation for the delay. It is submitted that the need for the plaintiff to have an operation did not preclude the commencement of proceedings. The proceedings could have been placed in the "not ready list" and further that the plaintiff could have obtained leave to amend the pre-filing statement in respect of any increased or worsening medical complaints. 10In relation to the decision to grant leave there is authority for the importance of an adequate explanation for the delay: see Gleeson CJ in Salido v Nominal Defendant (1993) 32 NSWLR 524 at 530. In Holt v Wynter (2000) 49 NSWLR 128 a five member bench of the Court of Appeal applied the test espoused by Toohey and Gaudron JJ in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 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." Although this quoted passage dealt with a different limitation provision it was adopted by the Court of Appeal in Holt v Wynter to have application to section 151D(2). The principal judgment in Holt v Wynter was delivered by Sheller J and in Parsons v Doukas (2001) 52 NSWLR 162 Sheller J reiterated that approach. 11However, in Itek Graphix Pty Ltd v Elliott [2002] NSWCA104 the Court of Appeal (per Ipp AJA, with whom Spigelman CJ and Sheller JA agreed) determined that those remarks were not intended to be applicable to a case involving a lack of diligence on the part of an application for leave (at [55]) nor, it seems, to "a deliberate decision to allow the limitation period to expire." (at [62]). 12In Itek Graphix the reasonableness of the explanation for the delay was held (at [82]) to be a relevant consideration for leave although it was recognised (at [88]) "that often a failure satisfactorily to explain the delay will not be decisive. Ordinarily the issue of prejudice will be of paramount importance." Further, (at [91]) "A deliberate decision to allow a statutory limitation period to expire would be a powerful factor against a grant of leave" and (at [98]): "In my opinion to grant leave to sue long after the expiration of a limitation period, when the applicant has made a deliberate decision to allow the statutory period to expire, in the absence of special circumstances explaining satisfactorily the conduct of the applicant, would set at naught the purpose of the legislation." 13Mr Robertson, who appeared for the defendant, also referred the Court to the decision of ASB-Tech Services Pty Ltd (In Liquidation) v Doeland & Anor [2003] NSWCA167. The judgment of the court was delivered by Hodgson JA. His Honour (at [30]-[33]) emphasised the need for the applicant to provide an explanation for the delay including, in an appropriate case, evidence whether by documents or otherwise from the plaintiff's solicitor. 14At [34] Hodgson JA stated: "The correct approach is to regard the provision of an explanation as a necessary step in the application, and the nature of the explanation as being a matter which has to be taken into account in the ultimate determination of whether it is fair and just to grant the extension. The weaker the explanation, the greater the need to show that there would be little prejudice to a respondent." 15In my view, the explanation proffered by the plaintiff in her affidavit, quoted above, is not a full and satisfactory explanation. 16Mr Hickey for the plaintiff sought to supplement that explanation by inferences from the chronology to the effect that there were other justifying reasons for the delay, namely, the unresolved and increasing medical problems of the plaintiff, the continuing need for the plaintiff to receive medical treatment which, he submitted, she could not afford to undertake except by reason of her Workers Compensation benefit which would have been unavailable if her damages claim had been finalised. It was common ground that those medical expenses could not be part of any damages claim. 17I was referred to the decision in Saad v J Robins & Sons Pty Limited [2003] NSWCA 87. Santow JA, agreed to by Mason P and Hodgson JA, stated (at [60]): " I consider that the decision not to bring common law proceedings is sufficiently explained by the diary notes, though the explanation leaves something to inference. One may properly infer that the Appellant did not want to bring common law proceedings against his employer whilst (a) his job continued; (b) he was receiving payments under the Act from his employer; (c) his condition had not stabilised but was getting worse; (d) while he had hope of a substantial payment under the Act by way of settlement and commutation; (e) there would be potential legal impediments; and (f) he had received no legal advice to commence proceedings at common law till very late. But the point was reached where his condition had worsened, where his job was terminated and no commutation payment was forthcoming. At that time, the inhibition against any proceedings would simply have been a potential legal impediment in revoking his election. Reasonably enough, with the benefit of legal advice, he then commenced proceedings in common law." 18His Honour then distinguished that decision from the Itek Graphix decision where there had been a deliberate decision to allow the limitation period to expire. In my view, the decision in Saad v J Robins & Sons Pty Limited seems closely to approximate the circumstances of the plaintiff in this case. 19The evidence does not enable me to find whether the ultimate decision not to commence proceedings within the limitation period resulted from a deliberate decision of the solicitor not to commence or alternatively from some failure, perhaps negligence, on his behalf to consider the matter. 20The evidence of the plaintiff, which was not objected to and not challenged by any cross-examination, at least confirms that she played no role in that decision or omission. 21I am not persuaded that the decision of a solicitor, deliberate or negligent, is determinative of whether a grant of leave is appropriate, although it is a matter to be taken into account. The decision of Salido (at [530]) indicates that a lack of forensic diligence by a solicitor is of no assistance to the plaintiff in an application for leave (see also Rufo v MacMartins Pty Ltd (SC(NSW), Master Malpass, No 300085/96, 28 August 1996, unreported) referred to in Mills Workers Compensation Practice (NSW) at p 4897). According to Itek Graphix neither would a deliberate decision to allow the limitation period to lapse give any assistance to the plaintiff. 22Of course each case must be considered on its own merits. In this case it seems to me to be relevant that the plaintiff has suffered a significant and worsening injury, that there is the existence of some, although admittedly a very limited, explanation, that there was an early notification of a potential claim by the section 281 notice, and perhaps especially because there is no actual or presumptive prejudice asserted and also because there seems to be commercial and medical reasons, in view of the medical operations needed by the plaintiff, for her not to conclude her damages claim. All of these matters are relevant and assist the plaintiff in establishing that it is fair and just that leave be granted to commence the proceedings, notwithstanding the expiration of the limitation period. 23I accept that it is possible that the proceedings could have been commenced and placed in the "not ready list" in this Court, but there would nevertheless be a need for leave for a plaintiff to amend any pre-filing statement that did not accurately reflect the worsening condition of the plaintiff over time. In my view, the approach taken on behalf of the plaintiff in this case, adopting the procedure of postponing commencement and subsequently seeking leave under section 151D(2) is not an unreasonable course. It removes the need to seek leave to amend a pre-filing statement, and it is an approach which finds some support in the decision of Saad, a decision which appears to excuse a failure to commence in a timely fashion where there are worsening injuries. 24In the circumstances of this case I propose to adopt the approach indicated by Hodgson JA in the ASB-Tech v Doeland decision at [34]. I find that there is an explanation for the delay, although not entirely satisfactory, but the absence of any prejudice lessens the need to provide a full and complete explanation. As indicated earlier, the circumstance that there was some financial and medical benefit to the plaintiff in postponing the commencement of proceedings whilst operations remained pending or likely, where Workers Compensation assistance was needed to pay for those operations, is a factor in favour of the grant of leave. 25In my view, the plaintiff has discharged the onus on her to establish that I should exercise my discretion to grant leave under section 151D(2) and accordingly I order that leave be granted to the plaintiff to commence proceedings for damages in respect to the injury under section 151D within a period concluding after the expiration of 14 days from today's date. 26I have not been addressed by the parties on the matter of costs. The ordinary rule which appears from the decision of Holt v Wynter (2000) 49 NSWLR 128 and also in Campbell v State of NSW [2002] NSWSC 230 is to the effect that the successful applicant who has allowed a limitation period to expire should pay the costs of the application unless the opposition of the defendant to the application was unreasonable. In the circumstances of this case the matter was not at all clear, given the absence of a full explanation by the plaintiff, so that I do not regard the opposition of the defendant to the application for leave as unreasonable. In that event I would order the plaintiff to pay the defendant's costs of the application. If either party wishes to make submissions about the costs order they can do so in writing to my associate within 14 days of today's date. In the event that I receive any submissions I will give further consideration to the question of costs. 27Accordingly, the orders of the Court are:

1. I grant the leave sought under section 151D of the Act; and
2. I order the plaintiff to pay the defendant's costs of the application for leave.

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