Ali Moradi sought relief, as set out in a Further Amended Notice of Motion ("the Motion"), that an order be made pursuant to s 151D of the Workers Compensation Act 1987 (NSW) ("the Act") that he, the plaintiff, be granted an extension of time to bring and maintain proceedings against the second defendant, North Shore Property Construction.
The Motion was supported by affidavit evidence which came before the Court without objection. That evidence consisted of the affidavit of Tanya To of 5 July 2023, the plaintiff of 5 July 2023 and Paul Henderson of 22 September 2023.
At the outset of the matter being called before the Court today, Mr Perry, who appeared for the second defendant, asked for some time to consider his position in the light of a response to a subpoena from a Mr Martin and potential impact that that may have had upon the question of prejudice. After the provision of a short adjournment, Mr Perry indicated on behalf of the second defendant that the second defendant did not oppose the relief sought in the first prayer for relief in the motion. It may be immediately added, in that respect, that the plaintiff does not, momentarily at least, seek the relief in the third prayer for relief in the Motion and there is no opposition to the Motion by the first defendant Hyecorp Property Group.
Section 151D(2) of the Act provides that a person to whom compensation is payable under that Act is not entitled to commence Court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than three years after the date on which the injury was received, except with the leave of the Court in which the proceedings are to be taken. These proceedings by the Motion, in substance, sought that leave, as became evident from the chronology, to which I will return, from a date in 2021.
It is useful at this juncture to also refer to two other components of the Act and some provisions of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the 1998 Act").
Section 151DA of the Act delineates that time does not run for the purposes of s 151D, relevantly, while a medical dispute as to whether the degree of permanent impairment of the injured worker is at least 15 per cent, or whether the degree of permanent impairment of the injured worker is fully ascertainable, is the subject of a referral for determination by the Commission or a referral for assessment under Pt 7 of Chap 7 of the 1998 Act.
Subsection 151H(1) of the Act provides that no damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15 per cent. It is that threshold which is central to the consideration of the motion today.
The 1998 Act also refers to the 15 per cent threshold in s 314. However, most relevant are the provisions of s 313 of the 1998 Act, which provides that if there is a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages, the claimant cannot commence court proceedings for the recovery of work injury damages and cannot serve a pre-filing statement under Div. 3 unless the degree of permanent impairment has been assessed by a medical assessor under Pt 7.
Ms Welsh, who appeared on behalf of the plaintiff, drew my attention to the decision of the Court of Appeal in Howley v Principal Healthcare Finance Pty Limited [2014] NSWCA 447. In that judgment, McColl JA (as her Honour then was, with whom Meagher and Barrett JJA agreed), succinctly set out the relevant legal principles bearing upon the operation of s 151D(2) commencing at [44] of that judgment.
Her Honour stated that s 151D(2) does not spell out any specific criteria to be taken into account by the Court when exercising the discretion to extend the time to commence court proceedings sought to be commenced more than three years after the injury has been received. I pause at that juncture to note that the accident in this case occurred on 15 May 2015 and that a period of greater than three years has elapsed, thereby exciting the provisions of s 151D(2).
By reference to Itex Graphix Pty Limited v Elliott [2002] NSWCA 104, her Honour indicated that s 151D conferred a broad discretion to grant leave to sue after expiry of the limitation period.
The general question relevant for consideration in the assessment of an application such as the present one is what is fair and just in the circumstances of the matter.
The justice of the case must be evaluated by reference to the rationale of the limitation period that has barred the action. Amongst those considerations is whether, by the passage of time, evidence might be lost; that there would be some oppression to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed; and the desirability of people being able to organise their affairs without the remainder of litigation.
It might be noted at this juncture that in the present matter the position adopted by the second defendant, both in terms of the absence of opposition and more generally because of the ascertaining of the position of Mr Martin, is such that there is no actual or putative prejudice in this matter to the second defendant.
I would also add in that respect that the time which has elapsed relevant to the provisions of s 151D, whilst exceeding the limitation period, is not as long as one finds often in cases of this kind where leave is sought.
Nonetheless, the provisions of s 151D(2) are excited and the Court needs to consider the exercise of its discretion as stated by the above principles to determine the present motion. That, relevantly, brings attention to two considerations. The first is the affidavit evidence of the plaintiff himself in the matter; and, secondly, some other chronological considerations.
Firstly, in terms of the background circumstances of the plaintiff, I note the following:
1. He is a single man born in Iran in 1989.
2. He is presently in receipt of Centrelink benefits and until last year was receiving statutory benefits under the Act.
3. He is presently on a temporary protection visa and expects to be made a permanent resident in the near future.
4. His first language is Farsi and English is his second language. He states that he is better at English now than when he arrived in Australia in 2013. He has a degree in civil engineering which was awarded in Iran but is not familiar with technical language in English.
5. At the time of the injury, he was working for the second defendant as a labourer. The accident occurred on a building site which was under the control of the first defendant. He was injured when he slipped and fell off a wall which was about 1.5 metres high. He immediately became aware of pain in his left knee. He said that his left knee had landed on uneven ground and his right knee had been caught in the wall. He was unable to go straight to hospital because there was a problem with the concrete which had been poured and, in fact, he continued to undertake work after the injury. (I will return to some medical considerations in the course of considering the chronology, but his affidavit then sets out various medical procedures and/or treatment received from his attendance in hospital thereafter).
6. He did not make a claim for workers compensation at the time of the accident in 2015 because his employer had told him not to do so. If that is correct, and there is no dispute as to the fact today, it is a troubling consideration. He states that he decided to make a claim in February 2016 because "I really had no alternative". He stated that he was unable to work and had no financial support and the workers compensation insurer had rejected his claim.
7. Because of the delay in his workers compensation claim being made there were disputes with the insurance company. He first sought advice about his workers compensation from Law Partners at Parramatta. He subsequently was advised to consult Shine Lawyers at Fairfield. He stated in his affidavit that neither Law Partners nor Shine Lawyers did anything to advance his claim for workers compensation benefits. He then sought the advice of One Law at Blacktown because a solicitor from Shine stated to him that he could look after his case for him at One Law. He stated again nothing was done to advance his claim and he did not remember the exact dates of the consultation; although, it may be reasonable to infer that the process he described would have involved a reasonably significant period of time.
8. The plaintiff had to stop work altogether in 2019 when his back and leg pain became so bad that he had to undergo surgery. I will return to that consideration.
9. He stated that he understood in 2019, when his back deteriorated, that there was a possibility of an additional type of claim that Brydens Lawyers, who he had engaged, would make for him. Brydens Lawyers are his present solicitor.
I turn then to some aspects of the chronology.
The workers compensation proceedings were commenced on 26 May 2023. A pre-litigation requirement of the Act was to serve a pre-filing statement. That was done on 23 July 2021. Time did not run from that date by the operation of s 151DA of the Act. The three-year limitation period expired on 15 May 2018.
The plaintiff underwent a CT lumbar spine examination on 16 December 2016. He ceased work in February 2016 and sought legal advice, as I have described, between mid-2016 and October 2017, at least so far as that fact is described in a chronology provided by counsel on the plaintiff's behalf. Brydens were retained on 4 October 2017.
The claim for 13 per cent whole person injury was made based on a report of Dr Habib dated 23 January 2017. That claim was made on 4 June 2018 and was resolved on 9 August 2018.
As I have noted from the plaintiff's affidavit, he received approval for spinal surgery by the insurer and underwent spinal surgery. That approval was received in October 2019. In September 2019 a work injury damages claim was served on the employer. A concession was sought in that respect; namely, for the purposes of the provisions that I have earlier identified, for a WPI greater than 15 per cent on 23 October 2019.
Dr Pope operated on the plaintiff for spinal surgery in November 2019. A report was received from Dr Dias on 11 August 2020, which was served with a request for concession as to greater than 15 per cent WPI in November 2020.
There then followed an application to resolve the dispute lodged in the Workers Compensation Commission in January 2021, after which the plaintiff was examined by the second defendant via Dr Stephenson, ultimately resulting in the threshold being conceded on 30 April 2021. The pre-filing statement was thereafter served, as permitted by the relevant legislation, on 23 July 2021 and proceedings commenced on 27 September 2022.
In the written submissions prepared by Ms Welsh for the plaintiff, some discretionary matters were alluded to. I do not refer to all of them, but note the following:
1. A claim form was lodged with the workers compensation insurer in 2016.
2. Following the accident, the plaintiff attended Royal North Shore Hospital and was diagnosed with a fracture to his left knee and his leg was placed in a brace.
3. After taking some time off work, he noticed hip and leg pain but returned to normal duties shortly thereafter.
4. His employer encouraged him not to make a claim, but the claim form that he did ultimately lodge identified a witness to the accident and the people to whom it was reported, the site where it occurred and the circumstances of the accident.
5. The plaintiff's claim was eventually accepted, and the plaintiff now has an agreement with the second defendant which constitutes assessments of his whole in person impairment of 19 per cent.
There are two further considerations. The first is, it appears to me on the material presently before the Court, the application has a prima facie case with respect to his claim. The second consideration is that which I earlier referred to, that there is no real or putative prejudice to the second defendant in the present circumstances of this matter.
Ultimately, it was submitted on behalf of the plaintiff that he had an adequate explanation for the failure to commence proceedings within three years as a result of the evidence he had brought in the proceedings. I agree. In my view, the interests of justice are best served in the present matter by allowing the extension of time via the grant of leave under s 115D as sought on the applicant's behalf.
There are a number of factors which, in my view, are applicable to the exercise of my discretion in that respect:
1. The applicant has a prima facie case.
2. There is no actual or putative prejudice to the second defendant and no objection is raised to leave being granted by the second defendant.
3. The plaintiff's antecedents would indicate some vulnerabilities in his capacity to make an assessment of his rights in all the circumstances absent the assessments of legal representatives on his behalf. It is plain from his evidence that there were deficiencies in that respect resulting in delay occasioned by or out of that legal representation.
I pause in that respect to note that that consideration is directed to a consideration emphasised by Ms Walsh in her submissions today that the Court should have regard to the whole of the period from the date of the applicant's injury in considering the exercise of any discretion in this case.
The factors that I've identified to this date do not entirely account for the period of delay. The remainder, in my view, falls for consideration under the provisions of s 313 of the 1998 Act. The question which arises in that respect is whether in circumstances where the applicant was barred from bringing proceedings, that consideration may be taken into account under those provisions for the purposes of the Court's exercise of discretion in the present matter.
I note in that respect that, whilst the applicant did take a step to identify a prospect for the bringing of a claim greater than the 15 per cent WPI threshold, that step was again taken during a period where he was out of time.
My attention has been brought to the judgment of the Court of Appeal in Gower v State of NSW [2018] NSWCA 132 ("Gower") and to a possible barrier to a consideration such as that in the judgment of Basten J. So much was relied upon by the defendant when the defendant was opposed to the matter prior to the commencement of the proceedings today. Nonetheless, that judgment remains for the consideration as to whether, in the circumstances the judgment of his Honour, Basten JA, would act as an impediment as the second defendant had originally proposed in the present circumstances. The second defendant is not here to agitate that position, and the judgment in Gower is a judgment attended by many greater complexities than are found in the present case.
It appears to me that attention should be drawn in that respect to the judgment of Simpson AJA with whom White JA agreed in Gower where her Honour reflected, albeit in a different context, upon similar considerations. At [228] of her judgment, Simpson AJA states:
[228] For that to be the case, he had to have, within the limitation period, a viable cause of action. The premise was, in my opinion incorrect. It was not, in any realistic sense, open to the appellant to commence the proceedings within that time. He could only have had a viable cause of action if he had evidence to the relevant degree of permanent impairment. That he did not have.
Her Honour then referred to the provisions of s 280A of the 1998 Act having the effect of barring claims under the threshold. I pass to [233] of her Honour's judgment where her Honour states:
[233] The consequence of these provisions is that the appellant could have served a Pre-Filing Statement unless and until he was in possession of evidence that the degree of permanent impairment was at least 15%.
Her Honour then referred to the fluctuating nature of the appellant's condition. In respect of matters not relevant to this case, but I note by way of comparison, the later onset of conditions requiring spinal surgery by the plaintiff as a relevant interlocutory consideration.
Her Honour then ultimately states at [235] that:
[235] For these reasons, I agree with White JA that it was an error for the primary judge to use as a reason for refusing the extension of time, that the appellant 'deliberately allowed [the limitation period] to expire.
With respect to that last consideration no such observation can be made in the present case. In my view, albeit affected by the limitation of his personal circumstances, the plaintiff has diligently attempted to obtain legal assistance over time, and after surgery, and with the acquisition of medical opinion stating WPI in excess of 15 per cent, diligently pursued his claim.
For those reasons, in my view, the Court should exercise its discretion in all the circumstances to grant the relief sought in the Notice of Motion under prayer 1.
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Decision last updated: 11 October 2023
Parties
Applicant/Plaintiff:
Moradi
Respondent/Defendant:
Hyecorp Property Group; North Shore Property Construction Pty Ltd