(1996) 186 CLR 541
Gower v State of New South Wales [2018] NSWCA 132
Holt v Wynter [2000] NSWCA 128(2000) NSWLR 128
Itex Graphix Pty Limited v Elliott [2002] NSWCA 104
Judgment (8 paragraphs)
[1]
Solicitors:
Lough & Wells Lawyers for the applicant
Leigh Virtue and Associates for the respondent
File Number(s): 2021/00015061
[2]
Judgment
Sean McCormick, the applicant in this matter, was injured when he fell from a horse in the course of his employment as farm manager by the respondent, Mount Pleasant Stud Farm Pty Limited.
The accident occurred on 29 December 2014. The applicant suffered injuries to his neck, back and right shoulder. Ongoing treatment of the injuries included surgery to repair the right rotator cuff and biceps and ultrasound injections in an attempt to relieve shoulder and neck pain.
The applicant developed gastrointestinal symptoms that medical opinion related to the use of pain relieving medication relied upon by the applicant. A gastroscopy was performed on 19 October 2018.
Medical records indicate that the applicant continued to suffer from significant pain and discomfort from the time of the accident to the date of the hearing of his application.
The applicant lodged a workers compensation claim on 30 December 2014. He took a holiday but upon his return to work he was certified unfit to perform all of his duties. His employment was terminated on 13 February 2015. He has not, to date, returned to work.
S 151D of the Workers Compensation Act 1987 required that a claim in respect of these injuries be made within 3 years of the date of injury. A statement of claim was filed on the applicant's behalf on 18 January 2021 which, disregarding the periods of suspension provided for in the workers compensation legislation, was more than 6 years from the date of injury and 3 years out of time.
The application for leave to bring proceedings out of time was heard on 17 August 2021. It was opposed by the respondent on the following grounds:
1. The explanation for delay was unsatisfactory;
2. The extent of prejudice to the respondent;
3. The absence of merit in the applicant's claim.
Chronology
The applicant first consulted Mr Wells on 13 July 2016. He was prompted to do so by the difficulties he encountered with the respondent's workers compensation insurer in securing approval for treatment.
A letter of advice to the applicant dated 27 July 2016 focused on the need to obtain necessary approvals from the Workplace Independent Review Office (WIRO) (now known as the Independent Review Office) and the steps to be taken following receipt of that approval.
It was apparent from the materials provided and from Mr Wells' evidence that efforts concentrated on ascertaining the degree of permanent impairment suffered by the applicant. For this purpose, it was necessary that the applicant's medical condition reached the point where it could be said to have stabilised. This point had not been reached by July 2016.
The applicant had experienced an unsatisfactory result from shoulder surgery and further treatment and medical advice was necessary to deal with his complaints of ongoing pain and discomfort. Medical experts declined to provide an assessment until, on 14 June 2018, Dr New assessed the applicant's permanent impairment by reason of his orthopaedic injuries at 20%.
This assessment did not conclude the matter, however, because by this stage the applicant had developed gastrointestinal symptoms, investigated by gastroscopy in October 2018. The assessment of impairment as a result of this condition, issued on 20 February 2019, was 4%.
A claim for lump sum compensation was lodged on 4 April 2019, the day after instructions to do so were received from the applicant. The basis for the claim was a degree of permanent impairment of 24%.
Following assessment by medical experts on behalf of the respondent, the claim was disputed. The dispute was resolved by agreement on 19 August 2019 at the level of 21%.
On 11 September 2019 Mr Wells provided written advice to the applicant concerning, inter alia, the commencement of a claim for work injury damages and pointing out that, since more than 3 years had elapsed since the date of injury, he should not delay in deciding whether or not to proceed.
On 25 September 2019 and 12 November 2019 the applicant met with Mr Wells to discuss the work injury damages claim further. On 18 November 2019 notice of intention to bring the work injury damages claim was served on the respondent's insurer together with the particulars required by s 282 of the Workplace Injury Management and Workers Compensation Act 1998 (WIM).
Procedural requirements then involved the service of the pre-filing statement on 6 April 2020. An attempt at mediation took place on 7 July 2020. This was unsuccessful in resolving the claim.
Disagreements occurring between July and October 2020 with the workers compensation insurer concerning ongoing weekly payments were resolved by agreement.
After a further consultation on 25 August 2020 the report of an expert concerning the safety of the applicant's workplace was commissioned by letters in October and November 2020. The report was received on 4 December 2020.
The statement of claim was filed on 18 January 2021.
[3]
The Explanation
The basis for the respondent's concern regarding the quality of the explanation for the delay was Mr Wells' understanding that the claim could not or should not be commenced until the claim for lump sum compensation had been resolved.
This was a topic of discussion in the decision of the Court of Appeal in Gower v State of New South Wales [2018] NSWCA 132 where Justice Basten pointed out that there is no provision in the workers compensation legislation that prevents the issue of a notice of intention to bring a claim for work injury damages before or at the same time as the issue of a claim for lump sum compensation. The fact that the notice was not issued in that case until the degree of permanent impairment had been assessed and the claim for lump sum compensation resolved was one of the reasons why Basten and White JJ decided that the application for leave under s 151D of the WCA should be refused.
The applicant was cross examined about the advice provided to him by Mr Wells concerning the three year time limit. The workers compensation legislation is complex even to a trained and experienced lawyer. It was apparent from cross examination of the applicant that its complexities were beyond the applicant's capacity to comprehend.
He remembered that he was, at some stage in his consultations with Mr Wells, advised of the three year time limit but he did not remember when. He said he believed that he could not bring the work injury damages claim until his claim for lump sum compensation had been resolved. He stressed in his evidence that he trusted Mr Wells and relied upon him at a time when he was in great pain and discomfort and barely able to deal with more than his immediate needs for medical assistance.
Mr Wells did not remember when he advised the applicant of the limitation period. He agreed that he had done so before the limitation period expired but said he had not given him detailed advice.
He was frank in his evidence that he did not consider the limitation issue to be his first priority. That, he said, was his duty to maximise the applicant's entitlements as a whole. He said he was dealing with a high needs client whose condition was unstable and who was permitted by s 66 of the WCA to bring only one claim for lump sum compensation. The instability of the applicant's condition was the major factor that he took into account and it was a judgment call to determine when the applicant had reached the point of maximum medical improvement.
In addition to negotiating the complexity of the legislation, Mr Wells was required to deal with an organisation referred to as WIRO. He said WIRO had the role of approving the practitioner to be engaged. The approved practitioner was then able to apply for funding for the various procedures to be undertaken in pursuing a workers compensation claim. WIRO will not provide funding for an assessment of whole person permanent until the worker has reached the point of maximum medical improvement. In this respect the WIRO has no regard for s 151D of the WCA and is not pleased if a funded medical expert reports that the workers' condition is not stable.
Mr Wells agreed that it was permissible to give notice of intention to bring work injury damages claims before receiving WIRO approval. If that were done, it would not be funded.
He also agreed that there were times when he notified the employer informally of the upcoming work injury damages claim so that they might locate witnesses. In other cases, this was unnecessary because there was no prejudice.
The late service of notice of intention to bring a work injury claim was not the major consideration in the decision of Justices Basten and White to reject the application for leave in Gower. Justice White at [189] made it clear that the dominant considerations were the weakness of the applicant's case and the actual prejudice that faced the respondent. In that case, the failure to serve notice of a work injury claim was a factor that, coupled with the poor prospects of success in the claim and actual prejudice, militated against the grant of leave.
The respondent drew a comparison between the situation in this case and that in Itex Graphix Pty Limited v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207 where Ipp AJA said a deliberate decision to allow a limitation period to expire was a powerful factor against the grant of leave.
In Ipex Graphix an election was made to pursue one course of action and to abandon another, followed later by a decision to reverse that election. This was not the way in which the current applicant's rights were dealt with. His solicitor was required to negotiate the complexities of the legislation as well as the requirements of WIRO in order to secure funding to allow the applicant's claims to be pressed. There was no indication that the work injury damages claim was ever abandoned. The point where the applicant reached the maximum medical improvement was vital both to securing of funds in order to assist the applicant and to the assessment of the viability of the claim.
I was satisfied that there was in this case a reasonable and cogent explanation for the delay in pursuing the work injury damages claim and that late service of the notice of intention to bring a work injury claim was not of itself sufficient to warrant refusal of the leave sought.
[4]
Prejudice
The respondent did not claim to be prejudiced in dealing with the medical issues raised by the applicant's claim. It was aware of those issues and had the opportunity for medical examination from the time the workers compensation claim was lodged the day after the accident.
The respondent's concern arose from the consequent delay in dealing with the liability aspects of the claim which, it said, involved both actual and presumed prejudice.
The evidence included a statement of Mr Hamilton, the sole director of the respondent, concerning the respondent's claim that the system in which he was required to work was unsafe. There was no indication in Mr Hamilton's statement that he had any difficulty in responding the applicant's allegations because of the lapse of time.
A second statement was provided by Ms Bolwell who was working with the applicant at the time of his accident and who witnessed it. Ms Bolwell recalled in detail the systems of work adopted at the respondent's establishment at the time of the accident. In respect of the accident itself she said 'I recall some of the incident …'. She then provided a reasonably detailed description of the conduct of the applicant leading up to his accident.
In the light of this evidence, I was not able to conclude that the respondent would suffer significant actual prejudice as a result of the delay in bringing the claim.
[5]
Merits of the Claim
As already noted, the relative weakness of the claim was a significant feature in the reasons of Basten and White JJ in Gower when they concluded that leave to commence proceedings should not be granted.
The respondent contended that the applicant had little prospect of succeeding in his claim that there was negligence on the part of his employer.
The dispute between the parties concerned issues of what were the standard procedures adopted in the horse training industry; who was responsible for the adoption and implementation of those procedures at the respondent's establishment; and principles of non-delegable duty. Although, the applicant's claim was not clear cut, these were arguable and serious issues, the resolution of which will depend on the presentation and assessment of evidence. The relevant legal principles will have to be applied to the resulting findings of fact.
The material made available to me for the purpose of this application was not sufficient to allow me to conclude that it was inevitable or more than likely that the work injury damages claim would fail.
[6]
Summary
In Gower, Justice Basten at [4] stated the propositions to be established to succeed in an application for leave were, in summary:
1. There was sufficient explanation for each period of delay;
2. There was a reasonably arguable claim of negligence;
3. The conduct of a trial significantly out of time would not cause the respondent significant prejudice so as to render the trial unfair.
These principles were derived from decisions such as Salido v The Nominal Defendant (1993) 32 NSWLR 524; Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; Holt v Wynter [2000] NSWCA 128; (2000) NSWLR 128; South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477; Itex Graphix Pty Limited v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207.
I have already provided reasons for my determination that the explanation was satisfactory and that there appeared to be little in the way of actual prejudice to the respondent.
There remained the question of the presumed prejudice involved in dealing with a claim made six years after the events on which it was based when, in the ordinary course of events, the respondent should be in a position to assume that there was no longer the potential for a claim and therefore could order its affairs accordingly.
Determination of this question depended upon whether a respondent would be placed in a position where a fair trial of the issues would not be available.
The need to establish that it would be fair and reasonable to allow an applicant to proceed was described as the ultimate issue in Salido and Gabriel. It was an issue canvassed at length in Brisbane South and Holt v Wynter.
In this case, the applicant appeared to have been injured in his workplace to the point where more than six years later he continues to suffer from significant pain and disability. Taking this factor into account with my determinations that the delay in bringing his claim was satisfactorily explained, that the issues in his claim raised arguable issues and that the respondent would not face significant actual prejudice in meeting the claim, I was satisfied that a fair trial of the issues was available to the respondent and that it was appropriate that the appellant be granted leave to bring his claim out of time.
[7]
ORDERS
1. The applicant is granted leave pursuant to s 151D(2) of the Workers Compensation Act 1987 to commence proceedings more than three years after the date upon which the injury was received.
2. The time for filing of the statement claim is extended to 18 January 2021.
3. Costs are reserved.
[8]
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: 19 August 2021