McCarthy v Coles Supermarkets Australia Pty Ltd

Relevant History

1. The plaintiff was working in the deli of the Coles Queanbeyan supermarket on 1 April 2016. After the end of shopping hours, at about 9:50pm, in the course of performing her end of day duties, the plaintiff stepped out of the deli area in order to clean the hot chicken stand. In the statement annexed to her affidavit of 13 December 2023, the plaintiff says that she had noticed that the cleaner had started cleaning the floors in the delicatessen area, and that he had thrown water and soap from a bucket onto the floor, instead of using the usual method. The plaintiff said that she had been given no training with respect to working with wet floors and wet feet. She said that there were no "wet floor signs" and that "we were generally advised to continue working regardless of the water".
2. The plaintiff said that she took a couple of steps away from the deli to get to the hot chicken stand, when she fell, landing heavily on her left side ('the incident'). She got up to continue to walk and felt "immense pain".
3. The plaintiff walked to "the break room". She rang the shop phone and told a staff member she "could not move". The night manager and another staff member attended to her in the break room and ultimately arranged for an ambulance to be called. The ambulance took the plaintiff to Queanbeyan Hospital where she stayed for a short time and was given Endone.
4. The incident was recorded on CCTV cameras.
5. The plaintiff was taken to Dr Rahman, a general practitioner, the day after the incident. Dr Rahman gave her pain medication and instructed her not to drive, to elevate her leg and to stay off work. Dr Rahman arranged for X-rays to be taken.
6. The plaintiff was off work for about two weeks immediately after the incident. She then returned to Coles on selected part-time work for three to four weeks. Following that, her doctor certified her as unfit to work. The plaintiff did not return to work at Coles. She did not work again until August 2021, when she began to work full-time as an administrative assistant with real estate agent LJ Hooker. However, she was unable to sustain full-time work, and, after 6 months, she reduced her hours to twenty-four hours per week. Eventually this, also, became unsustainable, and the plaintiff was certified unfit for work on 8 June 2023. She has not worked since then.
7. The medical treatment received by the plaintiff with respect to her left hip and other alleged health consequences of the incident on 1 April 2016 is set out in the affidavit of Mr Taouk, the solicitor for the plaintiff, dated 13 December 2023. In considering Mr Taouk's affidavit, I have not taken into account those passages objected to by the defendant.
8. The plaintiff received quite extensive medical advice, investigation and treatment for her left hip pain and other health consequences of the incident on 1 April 2016. Investigation and treatment included the following (among other things): 2016

• MRI scan of left knee and CT and MR arthrograms of left hip.
• X-ray scan of pelvis and left hip and ultrasound guided left hip intra-articular injections to the left hip,
• Left hip arthroscopic surgery,
• Physiotherapy, 2017
• X-ray scan of pelvis and left hip,
• Ultrasound guided steroid injection into left hip,
• MRI scan of left hip, 2018
• Revision left hip arthroscopic surgery,
• X-ray scans of hips and pelvis,
• MRI scan of left hip,
• Left intra-articular hip joint injection,
• CT scan of left hip, 2020
• Left hip replacement surgery (23 November 2020),

1. The plaintiff also took medication for pain from time to time.
2. Gerard Malouf and Partners were the plaintiff's solicitors in relation to this matter until 27 January 2022, at which time Withstand Lawyers assumed the conduct of the matter for the plaintiff.
3. In his affidavit, Mr Taouk sets out the interactions between Withstand Lawyers and the solicitors for the defendant with respect to the plaintiff's claim under the Workers Compensation Act 1987.

Considerations relevant to the exercise of the discretion

1. In Itex Graphix Pty Ltd v Elliott [2002] NSWCA 104 (Itex Graphix), Ipp AJA, with whom Spigelman CJ and Sheller JA agreed, said, at [87]: 87 In my opinion, in limitation legislation such as s 151D(2) of the Workers Compensation Act, where a broad discretion is conferred to grant leave to sue after expiry of the limitation period, the general question that has to be asked is what is fair and just (per Gleeson CJ in Salido). Or what does the justice of the case require (per McHugh J in Brisbane South Regional Health Authority). In answering such a question, the justice of the case must be evaluated by reference to the rationales of the limitation period that has barred the action, including the four rationales to which McHugh J referred.
2. At [78], Ipp AJA summarised the "four rationales to which McHugh J referred" as follows: 78 McHugh J (at 552) identified four broad rationales for the enactment of limitation periods, generally. These were: (a) As time goes by relevant evidence is likely to be lost; (b) It is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed; (c) It is desirable for people in the community to be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Many in the community have a significant interest in knowing that they have no liabilities beyond a definite period; (d) The public interest requires that disputes be settled as quickly as possible.
3. In Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 ('Howley'), McColl JA with whom Meagher JA and Barrett JA agreed, said at [47] to [52]: 47 McHugh J's rationales are those which underpin the notion of presumptive prejudice, a "prejudice [which] may exist without the parties or anybody else realising that it exists ... where important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed [where] ... time ... diminish[es] the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose": Brisbane South (at 551). 48 The effect of Brisbane South "is 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": Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 (at [119]) per Sheller JA (Meagher and Handley JJA and Brownie AJA agreeing). "Significant prejudice means such prejudice as would make the chances of a fair trial unlikely": The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 (at [96]). 49 In Itex Graphix following the passage to which the primary judge referred, Ipp AJA continued: "88. I have pointed out that the justice of the case is to be determined by its own individual circumstances. Often, a failure satisfactorily to explain the delay will not be decisive. Ordinarily, the issue of prejudice will be of paramount importance: Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 at [34] - [36]; Malone v New South Wales National Parks and Wildlife Service [2001] NSWCA 345 at [9]. Nevertheless, the justice of the case may be such that the failure to explain the delay and to prosecute the case with the requisite diligence will result in an extension of time being refused. 89. The rule that an applicant, who applies for leave to bring proceedings after a limitation period has expired, must provide a reasonable explanation for the delay (and show that there has not been an absence of diligence on his or her part) forms part of limitation legislation throughout the country and, independently, has long been recognised by the courts ... 90. The reason for this requirement is not hard to understand. A limitation provision is an expression of intent by Parliament that persons who wish to sue must do so within the stipulated time unless circumstances exist entitling them to obtain leave. A limitation provision is the general rule and an extension is the exception. In obtaining leave, a party is in effect obtaining an indulgence. To allow parties leave, when they have been careless of their rights and careless of the need to proceed with their disputes within the limitation period, would, ordinarily, be contrary to the justice of the case and would subvert the intent of Parliament. Just as the rules of court must prima facie be obeyed (Ratnam v Cumarasamy [1965] 1 WLR 8 at 12), so must the laws of Parliament." [I note that her Honour also referred to [89], see [26] above.] 50 It should be borne in mind, as Whealy JA (Hodgson and McColl JJA agreeing) explained in Nominal Defendant v Harris [2011] NSWCA 70; (2011) 57 MVR 492 (at [45]), that Ipp JA's comments "were intended to provide useful and cautionary guidance as to the way a court exercising a broad statutory discretion to extend a limitation period will ordinarily respond [but] do not ... supplant the language of the statute [nor] ... override the broad discretionary exercise entrusted to a court to take into account all the relevant circumstances in determining what is fair and just." 51 Where an extension of time is sought to extend time to bring proceedings pursuant to s 151D(2), "it is for the person seeking to be freed from the constraint imposed by the limitation statute to show that the relevant delay is not likely to make the proceedings unfair or to cause real prejudice to the proposed defendant, that is, the person having the benefit of the time bar": Gallagher Bassett Services NSW Pty Limited v Murdock [2013] NSWCA 386; (2013) 86 NSWLR 13 (at [26]) per Barrett JA (Gleeson and Leeming JJA agreeing); see also Brisbane South (at 550) per Toohey and Gummow JJ; Sea Coatings (Australia) Pty Limited v Pascoe [2008] NSWCA 54 (at [27]) per Handley AJA (Hodgson and Tobias JJA agreeing) ("Sea Coatings"). 52 Factors contributing to the justice of this case included the respondent's concession that the appellant had a prima facie case on liability. It would be otherwise if she had had a weak case, as "the apparent weakness of the plaintiff's case is a factor which militates against an extension of time": Commonwealth of Australia v Shaw [2006] NSWCA 209; 66 NSWLR 325 (at [40], [83]) per Basten JA (Handley and Ipp JJA agreeing), referred to with approval in Sea Coatings (at [51]).
4. The onus is on the plaintiff to prove that the justice of the case requires the discretion to be exercised in her favour (see also Itex Graphix, Ipp AJA at [82]).
5. Considerations relevant to the exercise of the discretion include the conduct of the applicant for leave and the reasonableness of the explanation for the delay (see Itex Graphix, Ipp AJA at [85]). The strength of the plaintiff's case is also a relevant consideration.

Calculation of time

1. The defendant submitted that the extent to which the plaintiff's claim is out of time should be calculated in the following way (written submissions of the defendant dated 28 February 2024): 10. …it was not until 13 July 2022 that a claim for lump sum compensation was made and only on 6 October 2022 was time permissibly stopped by the service of s 281/2 particulars under the Workplace Injury and Workers Compensation Act but only for 2 months. (s 151D(1)(a1) Workers Compensation Act 1987 (WCA). The period of time to 6 October 2022 (from the 3 year period of 1/4/19 is 3 years, 6 months and 5 days. Time commenced again from 6 December 2022 and was then stopped on 27 February 2023-29 March 2023 (s 151DA(1)(a) WCA) and re-commenced until the Pre-Filing Statement (PFS) was served on 26 April 2023 (s 151DA(1)(b) WCA). The entire period is calculated by the defendants as 3 years, 6 months and 19 days beyond the three year limitation period but over 6½ years from the incident itself to the filing of the PFS.
2. I accept that the defendant's calculation accurately describes the extent to which the plaintiff's claim is out of time. In the context of a three year time limit, the plaintiff is three years, six months and nineteen days out of time, which is obviously a substantial period.

Conduct of the plaintiff and reasonableness of the explanation for the delay

1. In addition to providing an affidavit, the plaintiff gave oral evidence and was cross-examined.
2. In her affidavit, the plaintiff said: 87. My treatment by way of hip replacement surgery initially recommended by Dr Burns in December 2018 was essentially delayed almost two years from the time of the Dr Burns recommendation. I understood from discussions with my then Solicitor that there couldn't be any assessment of or determination of whole person impairment until about 12 months after I had undergone the hip replacement surgery. It was never discussed with me that Coles Insurance could, or should, be put on notice of my intention to pursue a Work Injury Damages claim or that steps could or should be taken to initiate such a claim by service of particulars of such a claim on the basis that even though final whole person impairment could not be assessed I would, inevitably, have impairment of or in excess of 15% once I had undergone hip replacement surgery. Once again, I don't recall ever being told in 2018, 2019 or 2020 of a three-year limitation period for commencement of Court proceedings against Coles.
3. In her affidavit, the plaintiff said the following in relation to the period from 9 March 2021 to September 2021: 93. On or around 9 March 2021, my husband hurt his hip, back and shoulder at work. He had fallen through the roof or a pergola which was 2.5m off the ground. My husband's injuries caused him to be off work for 6 months. In addition to being off work, he was also unable to operate his own business. 94. When he returned to work, he could only work reduced hours. Financially speaking, our household was significantly dependent on my husband's income and since he could not work for 6 months, this prompted me to recommence work despite feeling as if I was incapable of doing so. 95. As such, in or around August 2021, I found and commenced employment as an Administrative Assistant for LJ Hooker, Manuka. My duties involved performing admin and reception work such as meeting with clients and tenants, letting tenants into properties, collecting strata keys, and undertaking post office runs. I performed my duties on a full-time basis. 96. As I continued to work, my left hip pain progressively became worse to the point where I was in chronic pain and had regular flare-ups. 97. This was especially the case since my duties required me to sit for prolonged periods of time. 98. What did not help was the fact that it was difficult for me to look after my family and kids during this chaotic period of tie. I was caught up trying to balance my compensation claim, preventing my injuries from getting worse, seeking treatment for my injuries, and working to support the household. It felt as if I was fighting for my survival and, as such, I trusted that my solicitors at the time, GMP, were on top of my claim and attentive to it.
4. The plaintiff, in her affidavit, said that Gerard Malouf Partners ceased to act for her in January 2022. She said that she spoke to Mr Taouk on 24 February 2022, and that he explained her "entitlements and potential negligence claim", the 3-year time limitation period and the necessity to get the leave of the Court in the event that it was necessary to "bring Court proceedings" (paragraph 114, plaintiff's affidavit). It is the plaintiff's case that she was not aware of the 3-year time limit until that conversation with Mr Taouk.
5. A letter from Gerard Malouf and Partners, dated 2 February 2017, with a 4 page annexure entitled "Your Workers Compensation Rights" was tendered in the plaintiff's case (P1). In cross-examination, an extract of the text on page 4 of the annexure was put to the plaintiff. The extract came from a section of the document entitled "Work Negligence Claims - Modified Common Law Damages for Negligence". The extract says: (c) Normally such claims must be made within 3 years from the date of your injury but under various circumstances this time period can be extended.
6. In cross-examination in relation to that extract, the plaintiff said that she glanced through the annexure but did not read it. She said: "It's all legal jargon. I didn't understand it. I relied on George [her solicitor at Gerard Malouf and Partners]. I couldn't handle the claim. It was way over my head."
7. The plaintiff said, in evidence, that she had never had a conversation about a three year time limit with a solicitor at Gerard Malouf and Partners.
8. I accept the plaintiff's evidence on this issue. I find that she was not aware of the three year time limit until her conversation with Mr Taouk in February 2022.
9. In the written submissions filed in the plaintiff's case, the following submissions are made: 53. The Plaintiff clearly trusted and relied upon GMP to look after any claims she was entitled to pursue and continued to attend for treatment of her injuries and also attended part-time work, in order to minimise her economic loss, until she could no longer do so after June 2023. 54. Any failure on the part of GMP to, at the least, give early notice of and particulars of a potential Work Injury Damages claim may possibly be excused on the basis that it was not until May 2022 that the very first report containing an assessment of final whole person impairment was able to be and was obtained. There is no doubt that service of a Pre-Filing Statement which, pursuant to Section 151DA of the Workers Compensation Act 1987, would have stopped time from running, could not have been affected until after there had been an agreement or binding determination of the Plaintiff's final whole person impairment arising from injuries sustained in the accident. 55. Section 280A of the Workplace Injury Management Act 1998, provides that: "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." 56. Further, Section 280B of the Act also provides that although the Section does not prevent a claim for damages being made before any permanent impairment compensation to which the worker is entitled in respect of the injury has been paid: "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 permanent impairment compensation to which the worker was entitled, in respect of the injury, has been paid." In this matter that payment was not made until after 29 March 2023. 57. It is evident from the available evidence that the Plaintiff did not know, and was unaware, that if she did not pursue a Work Injury Damages claim against Coles within 3 years of the accident occurring that she would need to seek leave to do so and that such leave may not be granted. 58. It is also evident, from the available evidence, that a claim for Work Injury Damages could not be commenced and that time could not be stopped from running, by service of a Pre-Filing Statement, until, at the earlies, after 29 March 2023.
10. I accept the explanation for the delay, which is consistent with the evidence before me. The explanation for the delay is reasonable.

Possible loss of evidence and oppression of defendant

1. The defendant argued that it may suffer prejudice if leave is given to bring the plaintiff's claim out of time.
2. An affidavit of Ms Morando, a litigated claims adviser employed by Coles Group Limited, dated 30 January 2024, was tendered in the defendant's case. In her affidavit, Ms Morando says that she has attempted to locate the CCTV footage of the incident. She says that she has been told by the Queanbeyan Coles Store Manager, Beau King, that CCTV footage from the store is only retained if it is "taken off the system and saved". Otherwise, it is overwritten two weeks after it was taken. Ms Morando says, at paragraph 5: "To the best of my knowledge and belief having made enquiries of Beau King this was not done."
3. I accept that it is probable that the CCTV footage of the incident was overwritten two weeks after 1 April 2016. However, I place little weight upon this circumstance, for two reasons. Firstly, given the very short time frame of two weeks before CCTV footage is overwritten as a matter of routine practice, any claim for common law damages in this matter, whether within time or out of time, would have had to have been conducted without the benefit of the footage because the defendant did not take steps to preserve it. Realistically, no claim could have been brought within two weeks of the incident. Secondly, the statement of Roston Bibb, who was, at the time of the incident, an Area Manager for Coles and Acting Manager at the Queanbeyan Coles Store, dated 23 December 2022, discloses that Mr Bibb watched the CCTV footage of the incident at 7am on the morning after it occurred. He says that he recalls watching the plaintiff, on the CCTV footage, slip and fall onto her side after walking out of the Delicatessen towards the "warm chicken area". A written description of the vision of the incident on the CCTV, with a timeline, is also in evidence (annexure C to the affidavit of Mr Taouk).
4. It was argued on the part of the defendant that a further kind of prejudice may affect its case, because the memories of witnesses are likely to fade over such a long time. I accept that memories can fade or change over time. I also bear in mind that the effluxion of time may result in the loss of evidence which no-one presently knows existed (see Howley at [47]). However, in this matter, there exists a contemporaneous risk assessment of the incident, conducted by Mr Bibb and two other people, which will assist in overcoming whatever prejudice may arise (annexure E to the affidavit of Mr Taouk). I note that no example of a witness experiencing difficulty with remembering an aspect of the matter has been raised. An apprehension was expressed that witnesses may be unavailable after the passing of so much time but, again, no example was given. Mr Bibb's statement was made in December of 2022.
5. On the basis of the evidence before me I am satisfied that a trial in this matter will not be unfair to the defendant on account of the claim being out of time.

Strength of the plaintiff's case

1. On the basis of the evidence before me, including the risk assessment mentioned in [36] above, it is apparent that the plaintiff has an arguable case for common law damages in negligence.

Conclusion: What is fair and just

1. I bear in mind the public interest in work injury claims being concluded quickly. I bear in mind the desirability of claims being conducted in such a way that the parties can move on and not be preoccupied with the claim for a long period of time. However, I also note that the medical evidence before me tends to indicate that the course of the physical symptoms suffered by the plaintiff militated against a quick settlement or assessment of a quantum of damages, as did the timing of her hip replacement surgery.
2. I am satisfied that it is reasonably arguable that the ascertainment of what constitutes a fair quantum of compensation in this matter only became possible in about November of 2021, a year after the plaintiff's hip replacement. In the absence of tangible prejudice to the defendant, where the delay is not attributable to the fault of the plaintiff, the justice of this case requires that leave be given to commence proceedings out of time.
3. Having regard to all of the considerations set out above, the plaintiff's application under s 151D of the Workers Compensation Act 1987 for leave to commence proceedings out of time will be granted.

Costs

1. The plaintiff sought an order that the costs of the application for leave be costs in the cause. The defendant did not wish to make submissions in relation to costs. In all of the circumstances, the appropriate order is that the costs of the application be costs in the cause.

Orders:

1. The following orders will issue: 1. Nadia McCarthy has leave, pursuant to s 151D of the Workers Compensation Act 1987, to commence proceedings in this Court for damages against Coles Supermarkets Australia Limited more than three years after the date on which she was allegedly injured on 1 April 2016. 2. The time for the filing of the Statement of Claim is extended to 15 August 2023. 3. The costs of the application for leave will be costs in the cause.

Amendments 15 March 2024 - Order (2) amended from 'The time for the filing of the Statement of Claim is extended to 15 August 2024.' to 'The time for the filing of the Statement of Claim is extended to 15 August 2023.' 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: 15 March 2024