Masic v Western Sydney Local Health District

District Court of NSW|2023-06-29|Before: White JA, Simpson JA, Basten JA

Introduction

HIS HONOUR: By notice of motion filed 13 March 2023 the plaintiff seeks orders nunc pro tunc to maintain these proceedings pursuant to s 151D(2) of the Workers Compensation Act 1987.
The plaintiff alleges that she was injured at work at the Westmead Hospital on 19 July 2010, whilst manoeuvring a trolley laden with dental equipment through a crowded hallway. Her case is that, as a consequence, she sustained a back injury which has progressively got worse.

The relevant dates

The relevant date for the calculation for time to start and stop running pursuant to s 151DA(i)(b) are 19 July 2010, the date of the alleged incident, and 23 February 2022, when the plaintiff attended to service of the "pre-filing statement".
The three-year time limit prescribed by s 151D of the Act starts to run from the date of the incident and so expired on 19 July 2013.
Thus, the pre-filing statement was served some 12 years after the accident and some nine years after the prescribed limitation period expired.

Some legal propositions

I have been referred to a number of authorities, in particular, what was said by McHugh J in Brisbane South Regional Health Authority v Taylor 168 CLR 541at 551, 552, 554 and 555.
That case holds that Parliaments enact limitation periods because they make a judgment inter alia that the chance of an unfair trial occurring after the limitation period has expired, is sufficiently great to require determination of the plaintiff's right of action at the end of the period. It is also well-known authority for the proposition that the greater the passing of time the more prejudice there may be to parties, which prejudice is not recognisable even by the parties. Finally, the case explains that the rationale for the enactment of limitation periods includes, first, as time goes by, relevant evidence is likely to be lost, second, is oppressive, even cruel to a defendant to allow an action to be brought long after the circumstances which give rise to it have passed, third, people should be able to arrange their affairs and utilise their resources on the basis that those claims can no longer be made against them.

The tension between s 151D(2) and ss 280A, 151H and s66

As Simpson JA said at [229] of Gower: By s 280A of the Workers Compensation Act, the appellant could not make a claim for work injury damages under s 151H, unless, at the time or before he made a claim for permanent impairment (lump sum) compensation under s 66 of the Act …
As Simpson JA concluded in Gower at [233]: The appellant could not serve a pre-filing statement unless and until he was in possession of evidence that the degree of permanent impairment was at least 15%.
McHugh J's observations in Taylor were applied with approval by the High Court in Prince Alfred College Incorporated v ADC [2016] 258 CLR 134 at [99] and [100]; [2016] HCA 37, Itec Graphics Pty Ltd v Elliott [2003] 54 NSWLR 207, where Ipp AJA said in relation to s 151D(2) when referring to what Justice McHugh J said in Brisbane South Regional Health Authority v Taylor at [87]: In my opinion in limitation legislation such as 151D(2) of the Workers Compensation Act, where a broad discretion is conferred to grant leave to sue after the expiration of a limitation period, the general question that has to be asked is what is fair and what is just. In answering such a question the justice of the case must be evaluated by reference to the rationales of the limitation period that had barred the action including the four rationales to which McHugh J referred.

Gower letter

Finally, in Gower v State of New South Wales [2018] NSWCA 132, the proper exercise of the discretion granted by s 151D(2) was again discussed by the Court of Appeal in the context of what I have observed is the apparent irreconcilable conflict between the limitation period itself which starts to run from the time of the injury as opposed to the time the cause of action accrues, viz a finding or certification of a 15% impairment which may occur on a date long after three years from the date of the accident.
As an acknowledgment of that tension and with a view to reconciling the inability of a plaintiff in those circumstances to commence proceedings, White JA at [188] recommended, but in my view did not mandate, that notice be given as soon as it was apparent that the prospect of a claim out of time might be brought advising the punitive defendant of that fact. As I read the case, this notice or warning was designed so as to limit any prejudice to the defendant because from the time of receipt of what is apparently now known as a "Gower letter", that defendant could choose to operate upon the basis that there is such a claim and prepare for one/ thus reducing the prejudice that would otherwise be caused by the effluxion of time.
I do not read anything in Gower as being a mandatory fetter on the exercise of what is otherwise a broad judicial discretion. To put it another way, Gower is not, nor could it be authority for the notion that absent a "Gower letter" leave must not be granted. Rather, it is a suggested means by which a plaintiff can take steps to alleviate, as best it can, prejudice to a defendant in not knowing a case may be coming, thus giving it the opportunity to preserve evidence and the like. How much significance, if any, a particular judge exercising the broad discretion given to the presence or absence of a "Gower letter" will depend on all of the circumstances of a case.

The competing submissions / disposition

It has been submitted by Mr Flett for the defendant, with some force, that as no Gower letter was ever sent, the inferred prejudice to his client should be seen to such a significant degree that it would be impossible for his client to receive a fair hearing after the passage of so much time.
To this, Mr Dodd of counsel, who appeared for the plaintiff, pointed me to a number of contemporaneous incident reports prepared by the defendant at and not long after the time of the incident. The first is a document titled "Incident Report form" dated 26 July 2010, where the plaintiff describes the incident in the following terms: I was pushing dental trolley for afternoon pickup then suddenly felt a strong pain in my lower back.
Mr George Fadel, staff member of the defendant, is identified as someone who was notified of the incident. Mr Fadel signed the document in his capacity as manager/supervisor and certifies the control measures put into place following the reported incident were satisfactory.
That document went on to say in relation to the question "what were the main causes of the incident identified": Limited room to move heavy trolley in the clinic. To move trolley from clinic into corridor. Too many people waiting - working around trolley in the clinic.
In answer to the question as to what corrective/preventative action/systems changes had been implemented as a result of the risk assessment, the answer was: To wait until personnel had moved away from the area or tell them to move before trying to move trolley. Do not twist body to move trolley, move feet and correct manual handling techniques on how to push trolley indicated by our procedures.
There is a further document dealing with the incident dated 4 March 2015 created by the defendant. It is titled "Accident Investigation Form".
Again, Mr Fadel is identified as the manager and has signed the document.
The plaintiff has also signed the document, as has an unidentified person called Brad (surname indistinguishable).
That document summarises the incident as follows: "Pushing trolley on carpeted area, trolley over-stocked by dental students and congestion in corridors (linen trollies) making it difficult to manoeuvre trollies."
A further cause / contribution explanation is as follows: "… difficult to push trolley in environment (and weight of trolley and corridor congestion."
Under 'Corrective and preventative actions to be taken' the following is to be found: "Consult with linen services to renew quality of trollies stored in area, George liaise with Oral Health to minimise stocking of equipment on trollies. Altered collection times to minimise traffic in the area."
Under the heading "Long term controls" the following is stated: "Push / pull testing of dental trollies to determine if there is a requirement to increase frequency to minimise weight over-stocking … recommend vinyl and not carpet in corridors."
Under the heading "Lessons learned" the following is said: "Incident caused by weight and over-stacking of trolley making it difficult to manoeuvre on carpet area, congestion in corridor also adding to issues … consulting with various parties to minimise over-stocking and corridor congestion and review …."
It is clear that the defendant, in a way that is to be commended, took some care after the incident to identify what had occurred, why it had occurred and to put in place strategies to minimise a repeat of a similar incident.
To my mind, those inquiries and investigations substantially detract from the submissions made by Mr Flett to the effect that the effluxion of time itself has caused such prejudice to his client that it cannot be expected to have a fair trial. It may be accepted that presumed prejudice after the passage of 12 years is strong, see Commonwealth of Australia v Shaw (2006) 66 NSWLR 325, but in my opinion it is not determinative.
It may also be accepted that in the context of this case the passage of time will make things more difficult for the defendant, but it is also true that the defendant has not sought to call any evidence proving actual prejudice, for example, that the people whose names appear on the reports (Mr Fadel and/or Brad) are no longer available.
Mr Flett's point goes further though.
In a careful and detailed analysis of the various histories given by the plaintiff over time, the first being in the incident report to which I have referred, the second being the accident investigation report to which I have also referred, the next being a history given to Dr Casikar on 10 August 2014 where it is said (apparently for the first time) the plaintiff mentioned a twisting process to her back, which was followed by a further report of Dr Jacqueline McMaster of 14 December 2015, and subsequent follow up reports all of which also refer to a twisting mechanism, what the plaintiff said in her statement of 7 February 2018 and the assumptions made by Fiona Weigall, who has provided an expert report on liability, where Ms Weigall records a history of "a sudden twisting movement with her body to steer the trolley away".
Mr Flett's submission is that a fair reading of the expert report makes it clear that it was assumed by the expert that there was a twisting movement and thus is a critical element to the cause of action as can be seen by a review of the statement of claim. I think that is a fair submission. I proceed upon the basis that the "twisting movement" is an essential assumption upon which Ms Weigall's opinion is in part dependent.
Mr Flett puts it this way: The defendant acknowledges that there are issues when relying upon histories and medical reports, but submits that there should be some consistency describing the mechanism of injury. In this case the description of the mechanism of injury between 2010 and 2016 did not involve a body twist. The body twist is a vital ingredient in the mechanism of injury and only became an ingredient of the injury some six years after the event. The account now given by the plaintiff incorporates the preventative measures suggested by her supervisor when the plaintiff originally gave details of her accident. With time memories deteriorate and the type of confusion referred to by McHugh J (in Brisbane South Regional Health Authority v Taylor) becomes apparent. The plaintiff has in the defendant's submission done exactly that and the mechanism of injury has become with time a jumbled account incorporating words that came from others. Clearly the plaintiff was an unreliable witness ….. The plaintiff's cause of action is weak. With time memory deteriorates as referred to by McHugh J and that this has occurred in this case resulting in the only witness to the injury, the plaintiff producing an inconsistent historical account of breach and/or negligence. Relying only on that type of evidence would prevent a fair trial. In those circumstances clear prejudice to the defendant ….

Conclusion

I have decided to exercise my discretion in favour of extending the limitation period that would otherwise apply.
I have taken into account the matters identified as relevant in Gower. There can be no suggestion, and I don't think there is a suggestion, that the plaintiff deliberately allowed the limitation period to expire. Indeed, on the evidence before me, the plaintiff had no claim she could bring until 1 October 2021.
I am satisfied that the plaintiff has provided a full explanation as to the reasons for the delay.
I am also satisfied that the explanation is satisfactory.
Indeed, in the circumstances, other than the failure to send a "Gower letter" I don't really see that there was anything else the plaintiff could do but to let time run.
As to the strength of the plaintiff's case on liability, whilst I appreciate Mr Flett's submissions, on the evidence before me, she appears to have a reasonable case. The case will not be simply based on her giving an account of the incident from her memory but will be supported by the two accident investigation reports to which I had referred which will be admissible as business records to prove the facts stated therein but also give a reasonably clear picture of not only what the plaintiff said happened at the time, but also the fact that version seems to have been accepted by her supervisor and the defendant, who thereafter took steps to try and stop the same situation repeating itself. In those circumstances, I am not prepared to find that the plaintiff has anything other than a reasonably arguable case.
That then brings me to Mr Flett's ultimate submission which is that, regardless of all other relevant factors, so much time has passed that it is not possible for his client to have a fair hearing. He emphasises the strength of the presumption of prejudice after such a long period of time as explained in cases like Shaw.
It is important to remember that the concept of a "fair hearing" is not only a flexible one but it also does not equate to a "perfect hearing". Parties are entitled to the fairest hearing that can be afforded them in light of all of the relevant circumstances. In the circumstances of this application, it cannot be overlooked that the plaintiff will have no hearing at all if leave is not granted. That may be no more than the consequence of the arbitrary time frame imposed by Parliament but in light of the lack of fault on the plaintiff's behalf is a weighty matter.
I would have much more sympathy for the defendant as to prejudice to it, if not for the accident investigation reports to which I have referred, together with the fact that the defendant has been aware for many years of the plaintiff's symptoms referable to the injury, and the fact that they were progressively getting worse.
Whilst I accept that the defendant will have a more difficult time defending the case now than it would have 12 years ago, the same can be said about the plaintiff proving her case. I do not accept that the hearing cannot be a fair one from the defendant's perspective.
If Mr Flett's submissions are to be accepted, it is open to the defendant even today to confidently make the submission, based on what is said to be an evolution over time of the plaintiff's description of how the accident happened, that the plaintiff is an unreliable witness.
If that be a correct analysis of the evidence then the plaintiff herself will be prejudiced by the effluxion of time. Certainly, other than prejudice to be inferred from the passage of time, I do not see any particular actual prejudice to the defendant. Taking into account all of the circumstances and the other relevant factors, and in particular the satisfactory explanation for the delay provided by the plaintiff, that prejudice to the defendant to my mind is not sufficient reason to not grant the leave sought. Moreover, whilst the onus remains on the plaintiff to persuade me to exercise my discretion in her favour, I do think it is of some significance that the defendant cannot point to any specific prejudice.
Finally, I have considered the submissions made based on the failure to send a "Gower letter". As I have said, my understanding of Gower is not that the sending of such a letter or failure to do so is a determinative matter that must be taken into account on what is otherwise an unfettered exercise of discretion.
Rather, I read it as a suggestion by the Court of Appeal as to a method that might be used by a plaintiff so as to try to reduce potential prejudice to a defendant if a claim is being delayed in the type of circumstances confronted by the plaintiff.
In this case, I do not see what else the defendant would have done if it had received a "Gower Letter". It had already investigated the incident on at least two occasions and it kept a good and thorough written record of those investigations and had been aware during the whole of the period of the plaintiff's deteriorating medical condition and that there was a prospect that in due course she would be certified as having a 15% disability. It had the plaintiff medically examined in 2015.
Taking all those matters into account, I have concluded that it is appropriate to make the orders sought by the plaintiff.

Orders

The orders I make are: 1. Grant to the plaintiff leave pursuant to s 151D(2) of the Workers Compensation Act 1987 (NSW), nunc pro tunc to maintain these proceedings. 2. The costs of this application to be costs in the cause.

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: 07 July 2023

At a glance

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