McMartin v Hurlcon Manufacturing & Sales Pty Limited

Judgment 1By motion filed in November 2014 the plaintiff, Mr McMartin, sought orders under s 151D of the Workers Compensation Act 1987 (NSW), giving him leave to maintain these proceedings. The application was supported by affidavits sworn by Mr McMartin and his solicitor Ms Nikolovski. 2Mr McMartin was seriously injured in an accident at work in December 2004, when he fell from a forklift. He is receiving statutory benefits under the Act, as a result. The statutory limitation period provided by s 151D(2) of the Act to commence these proceedings against his employer, expired on 23 December 2007. The proceedings were commenced against the first defendant on 10 December 2007 in the District Court. The proceedings transferred to this Court in 2012. The second defendant was joined on 8 September 2008. At that stage, Mr McMartin's whole person impairment had still not been determined, given his condition and the treatment he was still receiving. 3Separate proceedings commenced against the third defendant, Mr McMartin's employer, in July 2012 were discontinued in October 2012, when it was joined as third defendant to these proceedings. The employer relies on s 151D as part of its defence. Sub-section 151D(3) provides that the Limitation Act 1969 (NSW) does not apply in respect of proceedings such as this. It follows, amongst other things, that any disability suffered by Mr McMartin did not, of itself, suspend the running of the limitation period. 4Section 52 of the Limitation Act otherwise suspends the running of a limitation period where a plaintiff "is under a disability", which is defined in s 11(3)(b) of the Act, relevantly, as arising "while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her own affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of ... any disease or impairment of his or her physical or mental condition, ..." 5There is no question here that the proceedings were commenced within time, so far as the first two defendants are concerned. 6In this case there was at the hearing of the motion finally no objection to granting of the leave sought by Mr McMartin under s 151D. Given that no prejudice was claimed to have flowed from the leave which he sought, I concluded that justice demanded that it be granted. These are the reasons for the orders which I, accordingly, made at the hearing of the motion. 7Whether a discretion under s 151D should be exercised must be approached in the way discussed by Ipp AJA's in Itek Graphix Pty Ltd v Elliott [2002[ NSWCA 104; 54 NSWLR 207: "[87] In my opinion, in limitation legislation such as s151D(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 South Brisbane Regional Health Authority [v Taylor (1996) 186 CLR 541]). 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 refers." 8Those rationales, identified by McHugh J in South Brisbane Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541 at 552 are: (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." 9In this case it was relevant that while the proceedings against the employer were not commenced until 2012, a claim for permanent impairment was served on the employer and insurer in December 2009. It was amended in February 2011, after which the insurer sought further information in August 2011. An application to resolve a dispute was lodged with the Workers Compensation Commission and served on the employer and its insurer. A workers compensation medical assessment certificate was issued in November 2011, assessing Mr McMartin to have suffered a 19% whole person impairment. In December 2011, a s 282 work injury damages claim was served on the employer. A pre-filing statement was executed and served in February 2012. An application for mediation was filed in March 2012. The matter was not resolved at the resulting May 2012 mediation. It was not until October 2012 that proceedings were commenced against the employer. 10In Saad v J Robins & Sons Pty Limited [2003] NSWCA 87 leave under s 151D was granted, Santow JA observing: "29 It is convenient to start with the guidelines for the exercise of such a discretion in the analogous context of s52(4) of the Motor Accidents Act 1988 (NSW). These were enunciated by Gleeson CJ in Salido v Nominal Defendant (1993) 32 NSWLR 524 at 532 which can be read substituting for the references to s52(4) section 151D: "To take up the words of Glass JA in Mc Gee v Yeomans, it is not possible by judicial decision to establish in advance categories of case in which it would be fair and just to grant leave to commence proceedings out of time under s52(4). However the following guidelines may be of assistance in obtaining consistency of decision-making: