Muller v Mt Arthur Coal Pty Limited [2024] NSWSC 677 | Case summary

Muller v Mt Arthur Coal Pty Limited [2024] NSWSC 677 | Case summary | Zoe

[3]

JUDGMENT

This judgment involves an application by the plaintiff to extend time pursuant to s 151D(2) of the Workers Compensation Act 1987 (NSW) ('WCA') and the Limitation Act 1969 (NSW) ('Limitation Act') on the basis that she was persistently bullied and harassed at work.
The plaintiff is Janelle Muller. The first defendant ('1D') is Mt Arthur Coal Pty Limited ('Mt Arthur'). The second defendant is TESA Mining (NSW) Pty Limited ('TESA'). The third defendant ('3D') is Readyforce, a division of Chandler Macleod Group Limited ('Chandler'). TESA and Chandler are labour hire companies that employed the plaintiff at times.
The plaintiff is represented by R. O'Keefe and K. Young of counsel. At the hearing of the motion, unusually I permitted counsel for the first defendant to cross-examine her as to her state of mind at mind during a conference held on 29 July 2019. The first defendant is represented by B. Jones of counsel. The second defendant is represented by L. King SC of counsel. The third defendant is represented by F. Doak of counsel. The parties relied upon a Court Book, comprising 2 volumes ('Ex A').
The plaintiff was employed by: 1. Mt Arthur from 16 January 2012 to 15 January 2014; 2. TESA from 16 January 2014 through to December 2014; and 3. Chandler from January 2015 to August 2016.
The position of Mt Arthur from 16 January 2012 to 15 January 2014 was that it was both the owner and occupier of Mt Arthur mines and the employer of the plaintiff. Throughout the whole period of the plaintiff's employment, Mt Arthur was the owner and occupier of Mt Arthur Mines. As against Mt Arthur as owner and occupier, the plaintiff's claim is for damages for negligence and brought pursuant to the provisions of the Civil Liability Act 2002 (NSW) ('CLA') and of the Limitation Act. The proceedings are brought against all the defendants, including Mt Arthur, as employers of the plaintiff pursuant to s 151D(2) of the WCA, as saved and applicable to coal miners. Mt Arthur is also sued as an employer of the plaintiff. Under the WCA, the plaintiff falls within the definition of employee during the periods when she was also employed by all defendants. Pursuant to WCA s 7A(5), employer in the coal industry has the same meaning as in the Coal Industry Act 2001 (NSW) ('Coal Industry Act'). Section 3 of the Coal Industry Act defines an employer in the coal industry as any employer who works in or about a coal mine. The plaintiff worked in or around Mt Arthur Coal Mine throughout her employment. Hence, Mt Arthur falls into the definition of employer under the WCA.

[5]

The pleading in the SOC filed on 10 May 2022

The plaintiff alleges she suffered a psychological injury caused by behaviour towards her as bullying and harassment by other workers at Mt Arthur and by one worker in particular ('the employee'). The plaintiff alleges she reported the bullying and harassment to employees and representatives of Mt Arthur at various times throughout 2015 and 2016 and also to Chandler. She ceased work at Mt Arthur in August 2016 due to the adverse psychological effects of the bullying and harassment.
The worker who is alleged to have perpetrated the bullying and harassment of the plaintiff was at all times an employee of Mt Arthur. The persons to whom the plaintiff says she reported the behaviour of the employee to were also employees or representatives of Mt Arthur.
As against Chandler the plaintiff alleges that in May 2016, she attended the offices of Chandler and notified Phoebe Goddard, an employee of Chandler. This is the repeated instance of the plaintiff alleging bullying and harassment by other workers at Mt Athur and Chandler. I accept that she did not directly report the bullying and harassment to TESA. However, TESA and Chandler have never made any attempt to comply with their non-delegable duties of care, a subject to which I will return.
From January 2014 to August 2016, the plaintiff's employers, TESA and Chandler, never attended the Mt Arthur site to supervise the plaintiff's work or to check upon her wellbeing.
The plaintiff relies upon the affidavits of Martin Philip Rowney (her current solicitor) affirmed 2 November 2022 or 'the First Rowney Affidavit' ('1R Aff') and 'the Second Rowney Affidavit' affirmed on 24 April 2023 ('2R aff') her affidavit sworn 20 December 2022, as well as a bundle of primary contemporaneous documents created by Mt Arthur, the lengthy investigation of the NSW Department of Mines and a bundle of selected medical reports from treating medical practitioners. They have been reproduced in the court book by the plaintiff.
TESA relies on the affidavit of Najeh Marhaba dated 13 April 2023 ('Aff Marhaba'). Chandler relies on the affidavits of Paul O'Rourke dated 12 April 2023 and Shaun Cockle dated 13 April 2023 (the former legal representatives acting for the plaintiff) and the statement of Angela Megan Gardiner (a fellow employee at Mt Arthur) dated 21 April 2023.

[7]

The background

From December 2013, the plaintiff was a trainee and then as an employee of Mt Arthur which was owned and occupied by Mt Arthur, and was under the supervision, direction and control of senior or supervisory staff employed by Mt Arthur. The person who allegedly bullied and harassed the plaintiff was also an employee of Mt Arthur.
After December 2013, the plaintiff was employed consecutively by Mt Arthur and TESA (from January to December 2014) and by Chandler from January 2015 until she ceased work in August 2016. Both TESA and Chandler, while being the legal employers of the plaintiff, hired or contracted her services out to Mt Arthur.
The plaintiff's claims against her employers are confined to work injury damages quantified under the WCA s 151D(2). TESA and Chandler are concerned only with the operation of WCA s 151D(2).
Mt Arthur is as an employer that owed the plaintiff a duty of care in relation to the conduct of the employee. I understand that the TESA and Chandler allege that the employee was acting on a frolic of her own and hence they are not liable for her actions: State of New South Wales v Lepore [2005] HCA 4; (2003) 212 CLR 511 ('Lepore'); Deatons Pty Ltd v Flew (1949) 79 CLR 370. During this period, TESA and Chandler were the plaintiff's employer. Whether the employee was acting on a frolic of her own is a matter that can only be determined at trial. Liability on these bases is covered by WCA s 151D(2). The Limitation Act, the "disability" and postponement provisions apply to Mt Arthur as owner and occupier.
The period from January 2014 to August 2016 when the plaintiff was employed by TESA and Chandler, they submitted that she was under the supervision and control of Mt Arthur and effectively part of its workforce, and thereby Mt Arthur brought her into contact with the alleged bully.
In other words, the claims brought by the plaintiff in relation for work injury damages in respect of any injury caused between January 2012 and August 2016 while employed with Mt Arthur, TESA and Chandler are brought under WCA s 151D(2), which applies to the claims against all three defendants. For the periods when the plaintiff was employed by TESA and Chandler, the plaintiff sues Mt Arthur as an owner and occupier and as an employer.
In summary, the plaintiff seeks leave to proceed against all defendants out of time pursuant to s 151D(2) of the WCA. Additionally, the plaintiff seeks a declaration as against Mt Arthur as an owner and occupier under the Limitation Act. She seeks that the time for commencing proceedings was suspended by reason of her disability and further her claim was not discoverable until April 2021.

[10]

History of the plaintiff's employment

On 16 November 2012, the plaintiff obtained a 2-year traineeship with Mt Arthur at the Mt Arthur Coal Mine in Muswellbrook. Subsequently, she was employed by TESA and then Chandler. She was always employed to drive dump trucks at the Mt Arthur Mines.
The plaintiff was bullied and harassed by the employee, another truck driver, from the start of her traineeship. The employee was an employee of Mt Arthur throughout the time of the plaintiff's employment.
The employee would glare, ridicule and laugh at her, heckle her, call her a "dog" and "growl" at her. These incidents occurred on more than 150 occasions between 2012 and early 2016. The employee also engaged in egregious work practices that put the plaintiff and another employee on another occasion in a dangerous work environment. One very grave example of that was in 2015, when the employee flooded a ramp that the plaintiff was required to drive down in a dump truck, making it slippery and unsafe. The dump truck is a very large vehicle. The action taken by the employee could have had serious ramifications for the safety of the plaintiff and the other employee.
An extract from Ms Gardiner, a fellow employee, describes the plaintiff's circumstances while working at Mt Arthur mines. It is as follows: "9. [The plaintiff] had what I would describe as a psychological breakdown while we were chatting, as she was crying and seemed distressed about the situation. Above all she seemed very scared of [the employee] because of the things [the employee] had been doing to her around the workplace. 10. At the end of the conversation, I told [the plaintiff] the ways I might be able to help, to avoid [the employee] bullying her any further, and our friendship blossomed from there. 11. I think [the plaintiff] realised that I was one of the few people at work willing to support her and be there for her. We became best friends quickly despite her condition. 12. In the period following this, I observed that [the plaintiff's] psychological symptoms began to worsen. There were plenty of occasions where [the plaintiff] would turn up to work and tell me she felt physically ill because of her anxiety, and that she did not think she could face work. 13. I remember on various occasions while [the plaintiff] was still attending work that she would say things to me like, "I can't do this", or "I am terrified". I would often note that [the plaintiff] was shaking and looked teary. These symptoms have persisted for as long as I have known [the plaintiff] and can now affect her even when tasked with something simple like entering a shopping centre."
In the middle of 2014, the plaintiff recalls that she reported the bullying and harassment to her union delegate, Ms Sharon Smoothy, an employee of Mt Arthur. On 14 January 2015, she again reported the bullying and harassment to supervisors of Mt Arthur, Bevan Moir and Simon Hodge. On 10 September 2015, she again reported the bullying and harassment to the union delegate, Ms Sharon Smoothy. On 5 February 2016, several incidents were reported to Mr Andrew Thomas, the plaintiff's supervisor at Mt Arthur.
In about May 2016, the plaintiff began to suffer panic attacks. She took a lot of sick days to avoid contact with the employee, particularly during the period of May 2016 to July 2016.
Between 18 July to 7 August 2018, the plaintiff was a patient in St John of God hospital, Burwood, for PTSD treatment. In October 2018, she was again a patient at St John of God. At that admission, her psychiatric condition had worsened as she was admitted with suicidal ideation and self-harming.
Shortly after in February 2019, she became a recluse and moved into a caravan on her sister and brother-in-law's property.
The last day that the plaintiff worked was 2 August 2016. When she ceased working at Mt Arthur mines she became depressed and suicidal as a result of her injuries and was unable to perform the most basic of activities such as washing herself, combing her hair or preparing and eating meals. In about September 2016, she began receiving workers' compensation benefits from Chandler's insurer CGU Insurance.
There is no real dispute that the plaintiff suffered psychiatric and psychological injuries arising from the behaviour of the employee of Mt Arthur. However, each defendant alleges that she does not have an arguable case against them. Another subject to which I will return.
In about August 2017, she separated from her then partner, Kelvin.
From August 2016 and 24 October 2018, she was advised by Shine Lawyers at one telephone conference. She was informed she had a good claim against her employer or the mine site, Mt Arthur. She admitted that she did not respond to further communications that Shine Lawyers sent every few months until 25 January 2019, as she was mentally unwell. Other than that advice, she was not sent for any medicolegal assessments.
During this time, she was not coping with basic activities of daily living and was having suicidal thoughts. She was psychologically unable to read and respond to correspondence sent by Shine Lawyers regarding her claim. Also in February 2019, the plaintiff was living alone in a caravan and experienced the following symptoms: PTSD, high anxiety. She wouldn't go out and stayed in bed all day (on occasions). She did not attend to her personal hygiene.
In about February 2019, she consulted with Carroll & O'Dea Lawyers. She felt she was under pressure from others to consult with solicitors but did not feel well enough to proceed with a claim.
In about March 2019, the plaintiff commenced a relationship with Massimo Sammarco ('Max'). That relationship was marred with domestic violence.

[12]

The election document

On 30 July 2019 (the day after the conference), it is common ground that the plaintiff signed an 'election not to proceed to common law proceedings'. On 29 July 2019, the plaintiff had taken Valium in order to be able to proceed with the conference.
In cross-examination, before this Court, the plaintiff agreed that she signed the election document, but she says at that time she did not understand what she was signing.
The election document reads: "I, JANELLE MULLER confirm my instructions to you not to commence common law proceedings in relation to my psychological injury sustained whilst working at the Mount Arthur coat mine. I have been advised by both Mr Cockle of Carroll & O'Dea lawyers and Paul O'Rourke of Counsel that should I choose to commence common law proceedings, such proceedings must be commenced in the District or Supreme Court by 2 August 2019 at the very latest. It has been explained to me that bringing a claim for common law proceedings after the three-year anniversary can only be done with the approval of the court, Court approval will only be granted if there was a good reason why you were unable to commence court proceedings within the three-year time limit, that is by 2 August 2019. Having considered all of the matters relevant to my common law proceedings as discussed with Mr Cockle and Mr O'Rourke, I confirm that I do not wish to commence common law proceedings rather, preferring to remain in the workers compensation system [Ex D1/1]".
The solicitor recalls writing to the plaintiff and requesting written instructions from her as he was conscious that a limitation period was expiring. He cannot recall whether signed instructions were received.
Paul O'Rourke, the barrister who also was present at the telephone conference has provided an affidavit dated 12 April 2023. He deposed that he has no independent recollection of what was said at the telephone conference held on 29 July 2019. Attached in his affidavit is a copy of his letter of advice he sent to Mr Cockle dated 30 July 2019. That advice was forwarded to the plaintiff in his letter of 30 July 2019. In that advice Mr O' Rourke stated: "During this period of four and a half years, the Plaintiff worked, initially, for two years as a Trainee operator and then worked, for the balance of the period, as an operator. Mt Arthur was owned and operated by Mt Arthur Coal Pty Ltd. During the period of her work at Mt Arthur the Plaintiff was employed by: 1. From 16 January 2012 to 15 January 2014 - Mt Arthur Coal Pty Ltd; 2. From 16 January 2014 to 27 September 2014 - Tesa Mining (NSW) Pty Ltd; 3. From 28 September 2014 to 28 June 2016 - Chandler McLeod Group Ltd; and 4. From 1 July 2016 to 2 August 2016 - Readyforce (a division of Chandler McLeod). Although qualified to drive a watercart, as I understand it, Ms Muller, after her traineeship, largely worked as a dump truck driver. I note that had the benefit of a conference with Ms Muller and my instructing solicitor, Mr Cockle, on 29 July 2019. Further, I note that as against Mt Arthur Coal Pty Ltd. as owner and occupier of Mt Arthur, any claim for damages as a result of negligence would be brought pursuant to the provisions of the Civil Liability Act, 2002. As against Mt Arthur Coal Pty Ltd, as employer and as against the other employers, the claim would be brought pursuant to the provisions of the Workers Compensation Act, 1987 as saved and applicable to coalminers. … I have no independent recollection of this matter, or of the conference that-was held on 29 July 2019 with the Plaintiff and my instructing solicitor, Mr Shaun Cockle. … My impression from the statements is that between these confrontational events there were, at times, substantial periods where nothing relevant happened. However, in conference, I was left with the impression by Ms Muller that these confrontational moments or events occurred far frequently than is revealed in the statements. Further, at least from 2014, Ms Muller indicated she kept a diary noting these events. I do not have a copy of Ms Muller's diary. … There were then, over the balance of 2014, 2015 and into 2016 a series of events which could be interpreted as being harassment and bullying of Ms Muller by [the employee]. However, despite complaints by Ms Muller to a number of people, it is not until February 2016 that Ms Muller once again complains to an OCE (Mr Andrew Thomas). … Looming large in Ms Muller's statement are two events which seem to constitute intimidation and stalking of Ms Muller by [the employee] but which occurred away from the workplace and out, on one occasion, a Woolworths store and, on another occasion, at a Bunnings store. There is a third event, not described in the statement but described by Ms Muller in conference, which occurred at a pub in Lochinvar. … That is, I am concerned that the factual foundation for an allegation of negligence as against one more defendant might, in a substantial way, not be accepted by a court. … In conference Ms Muller indicated that she would accept "the possibility of innocent error on one, maybe even two, occasions but not three in my mind, this amounts to a tenuous assertion of wrongdoing on the part of [the employee]. … However, further in conference Ms Muller seemed to indicate that as immediately stressful as this event was, it was a later event not recorded in her statement, that had a greater impact on Ms Muller. … When Ms Muller heard of this event she was reminded of her 'white knuckle" ride and the heightened risks to which she was exposed and driving her dump truck over the overwatered ramp. … In my view Ms Muller will have a difficult time establishing relevant negligence on the part of any prospective defendants The coalmine cannot be seen as vicariously liable for most of the alleged actions of [the employee]."
All potential defendants would owe a duty of care to Ms Muller when working as a plant operator. In relation to each potential defendant this duty of care would be as an employer owing a duty to an employee. In relation to Mt Arthur Coal Pty Ltd, this would be both as an employer (for the yearly period of traineeship) and as the owner and occupier of the coal mine in which the plaintiff worked. In saying this, I note that the circumstances of the plaintiff's employment at the coal mine would likely mean that Mt Arthur Coal would be seen during this latter period as the host employer of the plaintiff.
Since further evidence has come to light, it became clear that the employee flooded the road where the plaintiff had to drive her dump truck. This occurred during the periods when Mt Arthur was her employer and TESA and Chandler were the labour hire employers.
On 30 July 2019, the day of the conference, the solicitor wrote a confirmatory letter to the plaintiff. This letter stated: "We refer to your telephone conversation with Shaun Cockle of this office and Paul O'Rourke of Counsel in relation to commencing common law proceedings as a result of your psychological injury sustained at Mt Arthur Coal Mine. In that regard, we enclose Advice from Paul O'Rourke of Counsel dated 30 July 2019. Following the conference with Counsel you determined that the risk of proceeding to bring common-law action against your former employers as a consequence of your work at Mt Arthur Mine was too much of a risk to warrant proceeding with a common law action in relation to injury. For the avoidance of doubt we need to advise you that should you decide to commence common law proceedings, such proceedings must be commenced by 2 August 2019, that is, by this Friday at the latest. It is important to note that if you do not commence proceedings by 2 August 2019, you will be unlikely to be granted permission to do so by a Court in the future. In relation to your potential Common Law claim, we enclose an authority for you to sign and return as a matter of urgency."
I accept that this letter advised the plaintiff that she had to commence common law proceedings within two days, because that was the date when the limitation period expired. I also acknowledge that at the same time she was advised that to do so was 'too much of a risk to warrant commencing common law proceedings with respect to the injury.'
The plaintiff stated in her affidavit at [34] dated 15 December 2022: "I remember that initially I was told that I had a good claim and then a few weeks later I was told I did not have a good claim. That happened following a conference by telephone with a barrister. After that conference I was not very sure of anything. I was so nervous and anxious before that barrister's meeting that I took a Valium tablet, which I felt I needed to do to be able to take the call."
To reiterate, for the purposes of this application only, I will take the plaintiff's evidence at its highest. This includes the plaintiff's evidence given in this hearing before me, as to her state of mind in detail when she signed the election document. On this interlocutory application, it is not my place to make any findings on the plaintiff's general credibility, but address only on the issue of her state of mind when she signed the election document.
I carefully observed the plaintiff while she was cross-examined. It is my view that at times her evidence was vague, even though she was doing her best to give truthful answers. The following questions demonstrated that have a limited recollection of what took place or what she was being advised. I formed the opinion that she did not comprehend or have much understanding of the advice and the ramifications of the advice she was given.

[13]

Affidavit of Shaun Cockle dated 13 April 2023

Shaun Cockle, the solicitor, does not have a clear recollection of the telephone conference. However, he has a recollection that the plaintiff was engaged in the conversation. He has reviewed a copy of his file note taken contemporaneously at that conference, a copy of which is annexed to this affidavit and marked 'SOC-I'.
It is apparent to him from considering the file note that some of the detail contained within it can only have been provided by the plaintiff. He says this is consistent with his recollection that she was actively engaged in that discussion.
The solicitor says that he would have made a note if he did not believe that the plaintiff was able to provide instructions or understand the advice she was receiving.
The plaintiff gave the following evidence in relation to the election document, which is as follows: "A. I was reading over statements and incidents that had happened. I don't remember thinking that. … A. I had all my work diaries in front of me when I was talking to Carroll O'Dea during that phone interview. … A. I wrote notes all the time. I function on Post it notes, otherwise I forget. … Q. By preparing those notes that allows you to come back to some topics that are recorded and give them further thought in the hours or days after something occurs? A. Yes. … A. I remember writing some Post it notes during that conference. … A. I got very unwell after that conference. I was triggered by talking about incidents at the mines. I remember the documents and the Post it notes stayed on the table for quite some time. Q. Just on that, Ms Muller; do you recall how long they stayed on the table for? If you don't recall. A. It was at least days, but I don't know. Q. After those days passed did you return to looking at those notes? A. I just packed it up. I just packed it up. Q. After that conference and again, your Honour, to be on the front foot with this if this strays, I apologise. After that conference, you went back and saw Ms Vine [her psychologist] to discuss what occurred, didn't you? A. Yes. Q. When you spoke to Ms Vine you explained that you only had a short period of time within which to initiate proceedings. Correct? A. Yes. Q. It's the case that at the conference in July 2019 you were told that a solicitor couldn't guarantee a successful outcome in any proceedings. Correct? A. I think so. Q. Mr O'Rourke gave you similar advice, that he had some concerns, he put it, about the case. Correct? A. Yes. Q. Do you recall during that conference going through some figures and discussing what any proceedings could mean to you in real terms; that is, money in your hand at the end of it? A. Yes, I remember discussing figures. Q. One of the things that was explained to you was that your workers compensation entitlements, that is, the weekly $400 and treatment, that would continue up to age 68, I think you were told? A. I think I remember writing that on a Post it note. Q. It was to the effect that those don't stop A. Yes. Q. Unless you redeem them. Correct? A. I'm not sure about that bit, I'm sorry. Q. But it's fair to say that the idea of receiving those ongoing weekly payments of $400 was appealing to you. Correct? A. I'd imagine so. Q. Again, you were focused on your treatment, and the notion of continuing to have that funded was appealing? A. I need Carol Vine to survive. Q. After the conference in July 2019, you were sent an email from Mr Cockle with some documents attached. Do you recall that? Q. Can you answer that? You're trying to think. A. I'm trying to think, yeah. JONES Q. Do you recall receiving an email on 30 July which included three documents? The first document in the email is described as "Letter from Carroll & Dea in relation to common law proceedings." Does that assist, Ms Muller? A. Yes, I think so. Q. And there was a separate document headed "Election form for you to sign and return". A. Yeah. Q. Finally there was an advice from Mr O'Rourke himself. Do you recall seeing that? A. I think so. … Looking in the top right corner, if you turn over to page 567 of 941. Its document headed "Election not to proceed to common law proceedings". Do you have that there, Ms Muller? Can you see that? A. Yes. Q. It says page 567 in the top right? A. Yes. Q. You see down the bottom of that document where it says "Janelle Muller"? A. Yes. Q. That's your signature there, isn't it? A. Yes. Q. Although it says it's dated 30 July 2019, do you recall actually signing that document on that date, or was it later? A. I don't remember. Q. Do I take it if you were signing a document and returning it to your solicitors you would have read it? A. Maybe. I wouldn't have understood it, but if I was told to do it I would have done it. It's my signature. Q. When you say you wouldn't have understood it, Ms Muller, you would have had to read it before you could sign it, wouldn't you? A. Yes. Q. You see in the first line it says "I, Janelle Muller, confirm my instructions". You understand the concept of what instructions are when you provide them to solicitors? A. I understand that first sentence. Q. When you say the first sentence, is that through to "not to commence common law proceedings"? A. No, I, Janelle Muller, understand my instructions. What you said. Q. You understand instructions are essentially telling your solicitors what to do? A. Yeah. Q. It continues, so you're confirming that you're not to commence common law, and down the line, proceedings. Do you see that? A. Okay. Q. Ms Muller, you understood that the concept of common law proceedings was bringing the matter before a Court, don't you? A. It's like the penny's just dropped now, reading that. I actually thought at the time that it was just stopping them. I didn't realise that this is for all law. Is that correct? Q. It's just for the common law proceedings as against your employers and the mine. That was explained to you by Mr Cockle and Mr O'Rourke, wasn't it? A. No, I don't remember. … Q. During that conference, if anything wasn't clear to you, you would ask them about it, wouldn't you? A. No. Q. Why would you not ask them about it? A. I don't like to, confrontation, I don't - if I ask too many questions I say I'm silly because I don't think as well as what I used to. If I was to, if I'm at a meeting if I have to ask everything that I don't understand, we'd never get anywhere. … Q. In August 2019, you saw Ms Vine; didn't you? A. I'd imagine. Q. One of the things you raised with her was initiating procedures after you had got the advice of Mr Cockle and Mr O'Rourke. Do you recall that? A. I don't, but I imagine it's true. … Q. You see, Ms Muller, when you signed this election not to proceed to common law proceedings, you made the decision that you would prefer to continue to receive the $400 a week and to have your treatment funded by the workers compensation insurer; didn't you? A. If only I could of understood that that day, like I'm understanding it now. You're explaining it well. I wish I had it that day."

[14]

The conference held on 29 July 2019

The plaintiff's understanding is that she received advice from Carroll & O'Dea Lawyers that her common law and workers compensation rights against the current defendants had reasonable prospects of success, but very shortly after on 29 July 2019, she was advised in a teleconference with her lawyer and counsel that she did not have a viable claim.
As I stated earlier, shortly before the conference with the solicitor from Carroll & O'Dea Lawyers and her barrister at that time, Mr O'Rourke, the plaintiff was feeling nervous and anxious and required Valium to participate in the conference. She was scared and worried. After the conference the plaintiff felt ill and 'wrecked.' At the time of the conference, she was unable to properly attend to her self-hygiene. She accepts she signed an election document, but has no recollection of doing so.
She says that she was unable to properly understand the advice she was given during that teleconference and was unable to proceed with any claim at the time (Annexure B, [34]-[39]).
It is fair to say that on 30 July 2019, the plaintiff signed an 'election not to proceed to common law proceedings', she had a very limited understanding the effect and ramifications of what she was signing.
On 1 August 2019, she relayed what she understood of the conference held on 29 July 2019 to Ms Vine, a psychologist. She provided reports to workers' compensation two days after the conference. An entry from Ms Vine's handwritten clinic notes read as follows (as best as I can read her handwriting): "1.8. cont. (1) Hard to stop it. Needed space to recover. Solicitors rang on Monday - conference with a barrister - had to pull out - paperwork - took Valium because getting anxious - P/C - had to write notes 3pm - 5-15pm threw up afterwards texted Max on sickness feelings. Relapses - twice a week - last year and other meds Valium since then learned can… breathe and stroke the dog, grounding/meditation instead. Decided not to go on, solicitor would have to lodge it in small space of time - 2 weeks see a couple of GP's - Sydney, Newcastle to see barrister and solicitor. What it would do emotions, to self - financial side of things - work cover has no end date - compensation have to pay back work cover and pay for treatments - not worth what would and want to fix self. Not go backwards. Feel bitter - had locked self away - so trigger - new comes out and engaging with life - anger + bitterness."
It is my observation that in relation to Mr O'Rourke's advice, he rightly identified three events described by the plaintiff that occurred between her and the employee that did not take place at Mt Arthur that may not be actionable. However, the gravity of the employee requiring the plaintiff to drive her dump truck on an over-watered ramp was not fully appreciated, as he was not told about the incident. Ms Vine, the workers' compensation insurer, had made more contemporaneous clinical notes that recorded the plaintiff's experience.
The plaintiff reported to Ms Vine that she thought that she had 2 weeks to commence common law proceedings, but the letter by Carroll & O'Dea referred to only 2 days.

[15]

RMB Lawyers - the current solicitors

In 2021, the plaintiff initially consulted Mr Robert Foster of RMB Lawyers for advice after her ex-partner Max commenced proceedings against her. Mr Foster assisted the plaintiff to get her car and possessions back from Max. At the conclusion of that matter, she was sent a brochure advertising other legal services provided by RMB Lawyers. She decided to seek advice about her injuries. She says that after the legal action with Max was finalised, she felt able to deal with her possible claim for compensation.
The plaintiff initially retained RMB Lawyers for assistance dealing with domestic violence and abuse by her former partner Max.
On 17 May 2021, Mr Watt of RMB Lawyers who initially had carriage of the matter at RMB Lawyers gave the plaintiff advice regarding her entitlements with respect to the workers' compensation scheme in New South Wales, but not as it applies to coal miners. He did not advise the plaintiff with respect to common law rights available to coal miners (aff M. Rowney at [10]).
In about July 2021, Mr Watt left RMB Lawyers. Thereafter, Mr Martin Rowney assumed carriage of her matter.
On 16 February 2022, there is a file note made by the solicitor, as best as I can work out of Carroll & O'Dea Lawyers that records the telephone call from Martin Rowney concerning the issue of the lien and the release of the file. Relevantly, the file note reads: "I indicated that we had obtained an advice from Mr O'Rourke of Counsel concerning the commencing of proceedings, and we had also written to the client concerning the commencement of proceedings. Martin indicated that they believed that there was a way that the proceedings could be maintained by alleging that the client did not have capacity to give proper instructions [Ex D1/1]."
On 21 July 2021, when Mr Rowney commenced work at RMB Lawyers, he reviewed the file note dated 29 July 2019 relating to the conference between the plaintiff and the solicitor at Carroll & O'Dea. He formed the view the plaintiff was a coal miner (as did the legal advice of 29 July 2019) and as such may have rights to a common law claim for damages.
Since Mr Rowney took over the carriage of the plaintiff's case, he took the following steps.
Mr Rowney advised the plaintiff with respect to her potential common law rights. By now the difficulty with Max had been dealt with, she was now in a psychological condition to be able to co-operate with Mr Rowney and entrusted him to pursue her potential rights to common law damages. Her mental health has been stable enough since consulting with Mr Rowney to enable her to provide instructions with respect to her injuries that are the subject of this common law claim. Prior to that she was unable to interact with solicitors or other staff in law firms, understand complex information or advice or make decisions with respect to legal proceedings prior to consulting with RMB Lawyers.
On 11 August 2021, Mr Rowney briefed counsel for advice.
On 18 August 2021, Mr Rowney requested a copy of the plaintiff's file from both Shine Lawyers and Carroll & O'Dea Lawyers.
Mr Rowney sought a psychiatrist's report of Dr Gertler as to the plaintiff's disability. No one in the plaintiff's camp had done this.
On 10 September 2021, he received a copy of the report of Dr Gertler, psychiatrist.
On 24 February 2022, he received a copy of the plaintiff's file from Shine Lawyers.
On 8 March 2022, he received a copy of the plaintiff's file from Carroll & O'Dea Lawyers.
On 5 April 2022, he received the supplementary report of Dr Gertler dated 1 April 2022.
The plaintiff has no recollection of consulting with a psychologist or psychiatrist at the request of Shine Lawyers or Carroll & O'Dea Lawyers. A review of the files provided by Shine Lawyers and Carroll & O'Dea Lawyers demonstrate that those advisors did not obtain a medical report from a psychiatrist or a psychologist to determine the nature of the plaintiff's psychiatric condition or her capacity to provide instructions to consider and decide whether to proceed with legal action.
All records from medical practitioners who have treated the plaintiff for injuries are available.
The plaintiff has never made a claim for lump sum compensation pursuant to the WCA, nor filed any claim in the residual jurisdiction of the District Court of New South Wales for statutory benefits or for a redemption of her rights.
The following summary accords with the plaintiff's evidence but Mr Rowney also adds his analysis as to what documents were provided to the prior solicitors that they used to base their opinions on. Some of this is repetitive.
Between August 2016 and October 2018 Shine lawyers did not arrange "in person conferences" with the plaintiff. The solicitors did not arrange for her to be assessed by a psychologist or psychiatrist to ascertain whether she was capable of understanding advice and giving instructions. In October 2018, Mr Palmieri of Shine lawyers advised the plaintiff by phone and in writing only that he thought she had a good claim against her employer or the mine site. When the plaintiff failed to respond to the recommendations, Shine lawyers wrote to the plaintiff a few times to advise her of impending limitation periods.
Between February 2019 and July 2019, Carroll & O'Dea lawyers did not arrange for "in person conferences" with the plaintiff. Nor did it arrange for her to be assessed by a psychologist or psychiatrist to ascertain whether she was capable of understanding advice and giving instructions. They did not seek a report from her treating doctors. Her solicitor informed the plaintiff that he thought she had a good claim however he then conferred by telephone with the plaintiff and Mr O'Rourke of counsel and was then informed she did not have a good claim.
On 5 March 2019, the solicitor at Carroll & O'Dea intended to arrange a medicolegal assessment with a psychiatrist (1R aff, p 675) but this was never done.
In July 2019, Mr O'Rourke of counsel was briefed.

[18]

Limitation Act - The relevant statutory provisions

Sections 11, 50C, 50D, 50F and 52 of the Limitation Act 1969 (NSW) are as follows: 11 Definitions … (3) For the purposes of this Act a person is under a disability - … (b) 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 affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of - (i) any disease or any impairment of [her] mental condition, … 18A Personal injury (1) This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to - … (b) a cause of action that accrued before 1 September 1990, or (c) a cause of action to which Division 6 applies. (2) An action on a cause of action to which this section applies is not maintainable if brought after the expiration of a limitation period of 3 years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom the plaintiff claims. 50C Limitation period for personal injury actions (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire - (a) the 3 year post discoverability limitation period, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff, (b) the 12 year long-stop limitation period, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned. … 50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is discoverable by a person on the first date that the person knows or ought to know of each of the following facts - (a) the fact that the injury … concerned has occurred, (b) the fact that the injury … was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. … 50F Effect of disability on limitation period (1) If a person has a cause of action for which a limitation period has commenced to run and the person is under a disability, the running of the limitation period is suspended for the duration of the disability. (2) A person is under a disability while the person - … (b) is an incapacitated person for a continuous period of 28 days or more, but not while the person is a protected person. … (4) In this section - … incapacitated person means a person who is incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of - (a) any disease or any impairment of… her mental condition… … 52 Disability (1) Subject to subsections (2) and (3) and subject to section 53, where - (a) a person has a cause of action, (b) the limitation period fixed by this Act for the cause of action has commenced to run, and (c) the person is under a disability, in that case - (d) the running of the limitation period is suspended for the duration of the disability, and (e) if, but for this paragraph, the limitation period would expire before the lapse of three years after - (i) the date on which the person last (before the expiration of the limitation period) ceases to be under a disability, or … (whichever date is the earlier), the limitation period is extended so as to expire three years after the earlier of those dates. (2) This section applies whenever a person is under a disability, whether or not the person is under the same or another disability at any time during the limitation period. (3) …
In these current proceedings, only the factor relied upon by the plaintiff so far as disability is concerned is s 11(3)(b)(i) of the Limitation Act. That is, there must be an impairment of the plaintiff's mental condition.

[19]

The law on disability

In Binetter v Binetter (2022) 409 ALR 1; [2022] NSWCA 169 ('Binetter (No 2)'), Basten JA (with whom White and Mitchelmore JJA agreed) stated at [11]: "Secondly, such an impairment had to operate for a continuous period of at least 28 days to render her incapable of, or substantially impeded her in, the management of her affairs. There was clearly evidence that from time to time Mrs Wolff was confused and delusional. On more than one occasion she was admitted to hospital. However, unless the period of incapacity or the hospital stay continued for the minimum period, it was not to be measured as part of a period of suspension of the limitation period."
In Ida Wolff bht Steven Binetter v Binetter [2021] NSWSC 1249, the primary Judge also referred to the following principles.
An analysis of all the evidence, both lay and expert is required to determine whether the plaintiff has satisfied her burden in proving the test for incapacity has been satisfied (Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 ('Guthrie') at [195] per Campbell JA).
When considering a disability as defined by the Limitation Act in the nature of PTSD (as is the case in these current proceedings, PTSD and in addition major depression and anxiety) suffered by the plaintiff, a Court should not be critical of the plaintiff's inability to give precise evidence about the times during which they allege the disability substantially impeded them. In Guthrie, Campbell JA at [186] said: "An impairment of mental condition does not work in quite the same way. Impairments of mental condition are frequently diagnosed after they have arisen, sometimes years after they have arisen. At least in some cases a mental impairment can affect a person's behaviour in ways that they do not attribute at the time, and sometimes do not even attribute subsequently, to that impairment of their mental condition."
Further, there is no error in the selection of an arbitrary date when an applicant's disability has ceased. In State of New South Wales v Harlum [2007] NSWCA 120 ('Harlum') Beazley JA (Tobias JA agreeing) said at [74]: "In any event by the very nature of a mental condition, it is unlikely, if not improbable, that a person will totally and finally cease being substantially impaired on a specific date. The enquiry under the legislation is to determine whether a person is under a relevant disability and if so, for what duration. In my opinion, it is sufficient for a court to determine a duration of disability up to a certain point, notwithstanding that there may thereafter be some ongoing disability. Once that point is ascertained, s 52 provides that the limitation period is suspended during the period of the disability."
In Harlum, Beazley JA said at [94]-[95] that it is too simplistic to approach the determination of whether an applicant is under a disability as defined by asking whether an applicant has the willpower to engage in the task of commencing proceedings, as: "[94] …in making a decision to commence an action, the person is also making a decision to continue with the claim. [95] Even if a person is able to fulfil each of the requirements contained in the State's approach, including the making of a decision to instruct a lawyer and to provide instructions, the person may not have the willpower to engage in all that is required to commence an action because of that person's mental condition."
Basten JA stated in Binetter (No. 2) at [13]-[17]: "[13] As explained by Campbell JA in Guthrie at [159]-[169], the grammatical structure of s 11(3)(b) is awkward, but its meaning is tolerably clear: "[159] A meaning that is the same as I have just been considering will arise if the syntax is analysed so that 'in respect of the limitation period for which the question arises' is an adjectival phrase that describes the noun phrase 'affairs in relation to the cause of action'. So regarded, 'in respect of the limitation period for which the question arises' serves to divide off, from the whole ambit of a person's affairs in relation to a cause of action, those affairs that are in respect of the limitation period for which the question arises. Reading s 11(3)(b) as having that syntax would advance the purpose for which s 11(3)(b) exists. It is readily understandable policy that a limitation period should continue to be suspended while a plaintiff is substantially impeded in dealing with those practical matters that need to be attended to for the action to be brought in time. [160] In my view, that is the correct syntactical structure of s 11(3)(b). Its having that syntax enables one to advance from the conclusion reached by analysis of the meaning of 'affairs', namely that the shade of the meaning of 'affairs' in s 11(3)(b) is one that places particular weight on the activities in relation to the cause of action leading up to and ending with the institution of proceedings, and to conclude that the only 'affairs' that are referred to by s 11(3)(b) are those practical matters that lead up to and end with the institution of proceedings for the particular cause of action in question." [14] On that reading there are two limitations on the question as to the ability to manage one's affairs, namely those identified by the two connecting phrases. Importantly, the focus is not on running proceedings from beginning to end, but on their commencement. That is not to say that the nature of the proceedings should be artificially confined by identifying the decision as being to commence or not. On the other hand, the reasoning of Campbell JA reflects a purposive approach to construing the provision, which was not challenged. [15] The trial Judge set out a further passage from Guthrie at [140]: [140] In the context in which it occurs in s 11(3)(b), the relevant 'affairs' are ones in relation to a particular cause of action. In a general sense, managing one's affairs in relation to a particular cause of action includes doing the various things that would need to be done if that cause of action were to be dealt with. Thus, it includes seeking advice about whether a civil remedy exists for some perceived wrong, seeking advice about the difficulties, risks, cost and effort involved in pursuing any such remedy and the likely returns, comprehending and evaluating that advice, and, if the decision to commence proceedings is taken, thereafter engaging in the continuing process of co-operation, interaction and decision-making that exists between lawyer and client in running any civil action. … [16] … In Guthrie at [140], Campbell JA was dealing with the phrase "management of his or her affairs"; but it would be wrong to take that phrase out of its context, something that Campbell JA did not do. He immediately noted a critical contextual limitation at [141]-[143]: "[141] In deciding the meaning of 'affairs' in s 11(3)(b), one must bear in mind that the context in which it occurs is that of the Limitation Act. The sole concern of the Limitation Act is with the time within which an action must be commenced - anything that happens after an action has been commenced is irrelevant to it. The Act prescribes various limitation periods for different types of causes of action. The purpose of s 11(3) and s 52 is to identify circumstances in which it would always be just to allow the plaintiff a longer time within which to commence an action. (That is a different purpose to the purpose of provisions of the Limitation Act that empower a judge to grant a discretionary extension of the limitation period.) If a plaintiff were to become substantially impeded in the management of his or her affairs in relation to the cause of action after the action had been commenced that would not be relevant to the application of s 11(3). [142] As well, it is relevant that the only consequence that flows under the Limitation Act from a person being under a disability is that the running of a limitation period is suspended. A limitation period becomes of no practical importance once proceedings have been commenced within the limitation period. [143] Both these aspects of the context assist in concluding that the shade of meaning of 'affairs' in s 11(3)(b) is one that places particular weight on the activities in relation to a cause of action leading up to and ending with the institution of proceedings." [17] In relation to the term "mental condition", it is commonplace to adopt a passage from the reasoning of Slattery J in Kotulski v Attard [1981] 1 NSWLR 115 at 117-118 to the following effect: "'Mental condition' which is not defined in the Act is, in my view, a condition of or pertaining to the mind which is the seat of consciousness, thoughts, volition and feelings. It seems to me that the expression 'mental condition' is meant to cover the mind's activities in all its aspects, including the ability to form a rational judgment, or to exercise willpower to control physical acts in accordance with rational judgment. … I am of opinion that it is a relevant matter, in the consideration of the question raised by the notice of motion, to have regard to how a reasonable person without any impairment would conduct himself in the management of his affairs. A reasonable person without impairment would be able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice and to give instructions about any action."
Basten JA continued in Binetter (No. 2) at [19]-[20]: "[19] There is a danger in ignoring context. In Guthrie, Campbell JA explored the wide range of statutory and rule-based provisions dealing with disability and incapacity in relation to legal affairs, involving differing language and different shades of meaning, concluding: "175 The task-specific nature of these tests of capacity has the effect that the one person could have capacity to perform one task, but lack capacity to perform a different task… In Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 1 WLR 1511; [2003] 3 All ER 162 at [27]. Kennedy LJ recognised that a personal injuries plaintiff might have capacity to make decisions concerning the litigation including whether or not to settle, but lack capacity to decide (even with advice) how to administer a large award. 176 These differing tests for capacity emphasise the need, when considering whether there is disability within the meaning of s 11(3)(b), to pay close attention to the wording of s 11(3)(b), and not be distracted by whether the person in question exhibits capacity in some other sense." [20] While the statement in Kotulski may be helpful in some cases, in State of New South Wales v Harlum [2007] NSWCA 120 at [27]. I expressed a note of caution in relation to its general application: "[139] That passage was adopted by this Court in Olive v Johnstone [2006] NSWCA 21 at [61]. In some cases, that question may be of considerable assistance, particularly where, as in Olive, there was a lack of relevant medical evidence. However, it is important not to replace the statutory test with that which Slattery J identified as 'a relevant consideration'. For example, a person can act irrationally without having a disease or impairment of the mind, especially if acting irrationally extends to the results of confused thinking, conflicting emotions and other forms of behaviour in which an outsider's view of rational behaviour does not prevail. In particular, people often do not pursue legal claims and their reasons may be manifold, including doubt as to the likelihood of success, fear of lawyers' fees, fear that the benefit will not be worth the cost, including the emotional cost, of being involved in litigation, not wishing to sue a person one knows and many other similar reasons. Simply to ask, 'Did the plaintiff behave rationally in the circumstances?' may often obscure the inquiry prescribed by statute, rather than provide a clear answer."
Basten JA concluded at [98] in Binneter (No. 2) that the challenges to the finding of the trial judge that the appellant had not discharged his onus of proof in relation to the suspension of the limitation period must be rejected.

[21]

Dr Gertler's opinion - Disability

All the defendants criticise Dr Gertler's opinions expressed in his reports.
Dr Gertler, in his supplementary report dated 1 April 2022 is of the opinion that during the period of engagement with Shine Lawyers between 31 August 2016 and 1 March 2019 'her psychological capacity during this period was impaired and affected her ability to claim compensation' (1R aff, p 50).
Further, Dr Gertler in that report discussed the period between 26 February 2019 and 30 July 2019 when the plaintiff engaged Carroll & O'Dea Lawyers. He noted that the plaintiff 'informed [him] that she had been better able to cope with her interactions with that law firm until a lengthy meeting which she had with her legal representative at the time [on 29 July 2019]. This meeting became increasingly difficult for Ms Muller to tolerate, it became "too much", she became agitated and "shut down". Her interactions with her solicitors at that time was also affected by her having established the relationship in March 2019 and her preoccupation with that situation. In his opinion the plaintiff did not have the psychological capacity to pursue her claim for compensation for that period with Carroll and O'Dea Lawyers'.
Also in this report, Dr Gertler expressed the following opinion: "When Ms Muller spoke with Mr Cockle and Mr O'Rourke [on 29 July 2019], she was still suffering from symptoms of post-traumatic stress disorder associated with major depressive disorder. Those interactions had involved the discussion of details of her work and how she had sustained the post-traumatic stress disorder. This resulted in a marked worsening in the level of her post-traumatic stress disorder symptomatology including the depressive component including increased withdrawal and a decrease in motivation. She was subsequently, in my opinion, incapable of initiating further proceedings" (2R aff).
As a result of the bullying and harassment, Dr Gertler has diagnosed the plaintiff as suffering 'from a post-traumatic stress disorder which is chronic in duration and is associated with a major depressive disorder.' The plaintiff described poor concentration and forgetfulness to Dr Gertler. She has isolated herself in the caravan though maintains contact with her brother and sister-in-law on the property where she lives. The symptoms of the plaintiff's PSTD include sleep disturbance with nightmares related to her employment with Ready Workforce while at Mt Arthur in the Hunter Valley, flashbacks to that period of employment, recurrent rumination and intrusive memories to that time, hyperreactivity to reminders, and avoidance of certain situations such as being in crowded environments (2R aff).
Dr Gertler's opinion also accords with that of the plaintiff's solicitor of Martin Rowney as he also opined that the client did not have capacity to give proper instructions. Dr Gertler is of the opinion when the plaintiff's relationship with Max ended in about September 2020 she had 'increasing psychological capacity to pursue her claim'. Dr Gertler also agrees that when the plaintiff's relationship with Max ended in about September 2020 she had 'increasing psychological capacity to pursue her claim'.
Shortly after Mr Rowney received the supplementary report of Dr Gertler dated 1 April 2022, the plaintiff gave instructions to commence proceedings and a SOC was filed on 3 May 2022 (at [11.44]-[11-45]).
Ms Vine, registered psychologist, first saw the plaintiff on 30 November 2018 and had regular sessions with her since. Ms Vine's clinical notes are set out in Ex D1/3. I have referred to the clinical notes of the plaintiff's consultation with Ms Vine 2 days after the conference on 29 July 2019 earlier in this judgment.
Ms Vine in her supplementary report dated 30 November 2020 documented the various issues that the plaintiff had reported to her. The plaintiff told Ms Vine that she had felt intimidated and terrified of her colleague to the point where she no longer had the capacity to stand up to her and was unable to deal with any conflict. She diagnosed the plaintiff as a result of approximately 4 years of workplace bullying, she met the criteria of PTSD and also severe depression, stress and severe anxiety (CB653).
During the period between 20 August to 30 November 2020, I accept she had problems with Max of this was a factor that affected her psychiatric condition. The plaintiff was also referred to Dr Nalin Wijesinghe, a consultant psychiatrist. He wrote reports dated 20 August and 30 August 2020. In the earlier report, he reported the history of the employee who flooded the road which led to a colleague crashing. He diagnosed her as suffering from a mixture of major depression and PTSD (CB650-651).

[25]

Resolution

For the purpose of this application only, I set out in my findings as to the plaintiff's state of mind in detail when she attended the telephone conference on 29 July 2019 earlier in the judgment. I have also set out that she deposed that after that conference she was not sure of anything. I also set out the clinical note made by Ms Vine, psychologist, dated 2 August 2019. It is my view that she did not comprehend, understand nor properly process the advice she was given. I accept Dr Gertler's evidence.
All of the defendants in their submissions spoke of the inadequacies of Dr Gertler's evidence. I have taken them into account in relation to Mt Arthur and all defendants in their submissions on delay.
I accept that pursuant to the Limitation Act, the plaintiff's impairment had to operate for a continuous period of at least 28 days to render her incapable of, or substantially impeded her in, the management of her affairs. It is not sufficient that any period of incapacity or substantial impediment related to her ability to look after herself, or to manage her affairs generally. The impairment can fluctuate over time, but the focus on all the periods operates to suspend the limitation period. The incapacity or substantial impediment has to relate to the management of her affairs "in relation to" the cause of action "in respect of" the limitation period.
Between August 2016 and 24 October 2018, the plaintiff had one telephone conference with Shine Lawyers at which time she was informed that she had a good case against her employer, Mt Arthur, for the period of 16 January 2012 to December 2014. On the basis of that advice, that claim against Mt Arthur would have prima facie been statute barred and would have required an application to this Court for an extension of time. In any event, the legal advice given by Shine Lawyers was incomplete.
Dr Gertler, in his supplementary report dated 1 April 2022 is of the opinion that during the period of engagement with Shine Lawyers between 31 August 2016 and 1 March 2019 'her psychological capacity during this period was impaired and affected her ability to claim compensation' (1R aff, p 50). I accept that advice for the purposes of this application only.
Dr Gertler in that report discussed the period between 26 February 2019 and 30 July 2019 when the plaintiff engaged Carroll & O'Dea Lawyers with her and opined that the plaintiff informed him that she had been better able to cope with her interactions with that law firm until a lengthy meeting which she had with her legal representative at the time.
I paid careful attention while she was being cross-examined. I formed the view that she was not able to comprehend the advice she was given at that conference on 29 July 2019. Actually, on 20 July 2019, she was advised "it was too much of a risk to warrant common law proceedings with respect to the injury". The legal advice given was to the effect that she would stay on workers' compensation payments. Dr Gertler opined that when she spoke to the solicitor and counsel at the conference on 29 June 2019, she was still suffering from symptoms of PTSD associated with major depressive disorder. Those interactions had involved the discussion of details of her work and how she had sustained the PTSD. This resulted in a marked worsening in the level of her PSTD symptomatology including the depressive component including increased withdrawal and a decrease in motivation. She was subsequently, in my opinion, incapable of initiating further proceedings" (2R aff).
I accept that she was under a disability during this period, so time was suspended between 26 February 2019 and 28 July 2019. At the conference on 29 July 2019, the meeting became increasingly difficult for the plaintiff to tolerate, it became "too much", she became agitated and "shut down".
Also, the file note that Ms Vine made on 1 August 2019 that noted what the plaintiff said about the conference is consistent with Dr Gertler's view. This opinion also accords with that of the plaintiff's solicitor, Martin Rowney, that the plaintiff did not have capacity to give proper instructions in relation to commencing common law proceedings.
On 29 July 2019, she was actually advised "it was too much of a risk to warrant common law proceedings with respect to the injury". The legal advice given was to the effect that she should stay on workers' compensation payments. Dr Gertler opined that when she spoke to the solicitor and counsel at the conference on 29 June 2019, she was still suffering from symptoms of PTSD.
She was still suffering from symptoms of post-traumatic stress disorder associated with major depressive disorder. Those interactions had involved the discussion of details of her work and how she had sustained the post-traumatic stress disorder. This resulted in a marked worsening in the level of her PSTD symptomatology including the depressive component including increased withdrawal and a decrease in motivation. She was subsequently, in my opinion, incapable of initiating further proceedings" (2R aff).
Hence, it is my view that the plaintiff suffered from a mental impairment from August 2016 when she consulted Shine Lawyers to August 2019, such that she was unable to consider the legal advice that she was given and gives instructions to commence common law proceedings was not mentally able to provide instructions to commence proceedings until her relationship with Max was at an end and she received advice by her current solicitor on 29 April 2021.
Time is suspended under s 50F of the Limitation Act up to and including 29 April 2021 as during this period she was incapacitated. During this period she was incapable or substantially impeded in the management of her affairs in relation to the cause of action. I should also add that for reasons given later, that it was on 29 April 2021, the plaintiff understood that she had an arguable cause of action against Mt Arthur as owner and occupier of Mt Arthur mines under the Limitation Act. As at 29 April 2021, the plaintiff was no longer incapacitated.

[26]

Discoverability

By s 50D(1), a cause of action is discoverable by a person on the first date that the person knows or ought to know: 1. the fact that the injury… concerned has occurred; and 2. the fact that the injury… was caused by the fault of the defendant; and 3. in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.
Mt Arthur bears the onus of establishing that the cause of action was discoverable before April 2021: Baker-Morrison v State of NSW [2009] NSWCA 35 (2009); 74 NSWLR 454 at [14] ('Baker-Morrison'); State of New South Wales v Gillett [2012] NSWCA 83 at [26] ('Gillett').
The plaintiff submitted that s 50D(1)(b) was not satisfied because the fault of the defendants was not discoverable until she received advice from Mr Rowney, in circumstances where in July 2019 he informed the plaintiff there was sufficient evidence to establish breach of duty of care in relation to all of the defendants. However, it seems to me that more relevantly the plaintiff did not know the fact of the injury was sufficiently serious to justify the bringing of an action pursuant to s 50D(1)(c).
The following cases were referred to by the parties on this topic. The fact contemplated by s 50D(1)(b) is a relationship between the injury on the one hand and the fault of the defendant on the other, the relevant connection being one of causation: Baker-Morrison at [1], [28] and [63].
Fault is to be ascertained by reference to legal concepts, not moral blameworthiness so that while there is no need for the plaintiff to be able to articulate a cause of action in terms of negligence, breach, nuisance, breach of duty or otherwise, the key factors necessary to establish legal liability must be known: [1], [28], [39] per Basten JA in Baker-Morrison.
In Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167, Basten JA agreed with Beazley JA that the claim was not statute barred noting at [130] that the cause of action was not discoverable until the plaintiff knew or ought to have known of "a reasonably arguable case involving a connection between his injury and fault on the part of the appellant". The relevant facts included the contractual and practical relationship between his employer and the appellant.
In Gillett, Beazley JA observed at [70] that Basten JA had held at [41] in Baker-Morrison that a plaintiff had to know the defendant's conduct was actionable which involved the exercise of both legal and medical expertise, given the statutory regimes which placed limitations on the damages recoverable in an action. His Honour considered that a proper view could not be formed about the justification for bringing an action absent appropriate legal and medical advice in respect of such matters.
Also in Gillett, Beazley JA at [97] agreed with the submission of senior counsel for the respondent that for the purposes of fault in s 50D(1)(b) the defendant had to establish the plaintiff knew the matter was legally actionable.
In Fogg v Kane Constructions (NSW) Pty Ltd [2015] NSWSC 648, Johnson J noted at [82] that the word fact in s 50D is not a fact in the ordinary sense of something objectively observable. Instead, the word fact is there being used to describe a composite of inferences or the result of an evaluation of which the plaintiff must have knowledge. Johnson J characterised the question for the purposes of s 50D(1)(b) as whether the plaintiff knew of the key factors necessary to give rise to a legal liability on the part of the defendant.
For the purposes of s 50D(2) the Court has to determine whether the fact within the meaning of s 50D(1)(b) would have been ascertained if the plaintiff had taken all reasonable steps to ascertain it before the relevant date. This will involve an enquiry of the steps actually taken by the plaintiff, if any, and whether those steps satisfy the court's determination of what were reasonable steps to take in the particular circumstances of a given case: see Gillett at [104]. per Beazley JA.
The inquiry under s 50D(2) is not directed to the appropriateness or reasonableness of the conduct of the plaintiff's legal representatives although McFarlan JA in Frizelle v Bauer [2009] NSWCA 239 noted at [30]: "There may be a case in which the applicant has taken all reasonable steps to ascertain facts depending on the advice of professional persons, but, having been given the wrong advice does not have the necessary state of mind."
In Taboas v Abigroup Contractors Pty Ltd [2014] NSWSC 13 ('Taboas'), Harrison J observed, citing Basten JA in Baker-Morrison at [58]:
"In most cases the step of instructing a solicitor will be sufficient for a prospective plaintiff to satisfy the element of taking all reasonable steps for the purposes of s.50D(2) - see paragraph [37]".
In Baggs v University of Sydney Union [2013] NSWCA 451, the plaintiff's engagement of solicitors to advise her and act in her interests was regarded as being sufficient to show that she had not failed to take reasonable steps or that the taking of all reasonable steps required of her to second guess her solicitor's advice or to seek a second opinion: see [34]-[36] per Meagher JA (Macfarlan and Hoeben JJA agreeing).

[29]

Resolution

The onus of establishing that the period of discoverability commenced on a date more than three years prior to the commencement of the proceedings rests with the defendants: see State of New South Wales v Gillett [2012] NSWCA 83.
Under s 50D(1)(a), I accept the fact that an injury occurred was known on September 2016, when a psychiatrist prepared a report for CGU Insurance, the worker's compensation insurer of Chandler. In the report, the plaintiff was diagnosed with a psychiatric disorder, namely a major depressive order caused by bullying. On 19 April 2021, psychiatrists, Associate Professors Gordon and Davies, provided an opinion for NSW Workers' Insurance. They diagnosed the plaintiff with a depressive disorder caused by prolonged bullying in her workplace. The evidence does not disclose when these reports were sent to the plaintiff's solicitors.
Pursuant to s 50D(1)(b), the question for determination is whether the plaintiff relevantly knew that her injury was caused by the fault of the defendants. It is not necessary that someone in the plaintiff's position should be able to articulate a cause of action for the purposes of s 50D(1)(b) of the Limitation Act. Rather, "the key factors necessary to establish legal liability" have to be known: see Baker-Morrison v State of New South Wales [2009] NSWCA 35; (2009) 74 NSWLR 454 at [39]; Gillett at [94]. Basten JA in Baker-Morrison at [41] considered that "a legal evaluative judgment appears to be required by par (b)".
In the present case, if the plaintiff was, or ought to have been, aware of the defendants' failure to meet their respective non-delegable duties of care to appropriately deal with the bullying incidents, then she was or ought to have been aware of the fact that her injury was or may have been caused by the defendants' fault. If such were the case, then by operation of the Limitation Act her cause of action is not maintainable. What the defendants needs to establish for the purposes of "fault" in s 50D(1)(b) is that the plaintiff knew that the matter was legally actionable: per Beazley JA in Gillett at [97]. As was pointed out by Basten JA in Baker-Morrison at [58], in most cases the step of instructing a solicitor will be sufficient for a prospective plaintiff to satisfy the element of taking "all reasonable steps" for the purposes of s 50D(2).
Basten JA noted in obiter in Baker-Morrison at [26]: "…it should be noted that, in the case of a psychological injury, additional questions will arise. For example, does 'injury' refer to compensable injury? If so, must the person have sufficient medical and legal knowledge required to distinguish a 'recognised psychiatric illness' from emotional distress as required by the Civil Liability Act, s 33?"
Basten JA considered par (b) in Baker-Morrison at [28] in these terms: "[28] In par (b), the word 'fault' is no doubt capable of having a broad generic meaning, not necessarily confined to that which engages legal liability. The context, on the other hand, gives it a different connotation. That which is identified as 'discoverable' for the purposes of s 50C is 'the cause of action'. The 'fact' contemplated by par (b) is a relationship between two things, namely the injury or death on the one hand and the fault of the defendant on the other. The relevant connection is one of causation."
His Honour continued at [40] - [41] as follows: "[40] The exercise undertaken by the State in the present case fell far short of demonstrating that the plaintiff's mother knew, at the relevant time, of any steps which could and should reasonably have been taken by the occupier of the premises to render the sliding door safe. The primary particular of negligence on the statement of claim was a failure to provide 'a protective guard or covering along the area of operation of the ... sliding glass doors'. Until the plaintiff's mother was aware (or ought to have been aware) of the availability and reasonable practicability of installation of such a device, she could not be said to be aware that her daughter's injury was caused by a failure on the part of the State to take reasonable care for her safety. These are the terms in which the relevant test under s 50D(1)(b) should be formulated." [Emphasis added] [41] Although a legal evaluative judgment appears to be required by par (b), that element is even more explicit in par (c). Thus, the injury must not only be understood to be serious, but "sufficiently serious to justify" a course of action. Further, that course is "the bringing of an action on the cause of action", an objective which would appear to require the exercise of both legal and medical expertise…".
As stated earlier, between August 2016 and 24 October 2018, the plaintiff had one telephone conference with Shine Lawyers at which time she was informed that she had a good case against her employee Mt Arthur only. That claim would have prima facie been statute barred. In other words, this legal advice given by Shine Lawyers was incomplete. On 29 July 2019, at a conference between the plaintiff's solicitor at Carroll & O'Dea and her counsel, she was advised "it was too much of a risk to warrant common law proceedings with respect to the injury".
Paul O'Rourke, stated in his affidavit at the conference dated 12 April 2023: "I note that I discussed this with Ms Muller in conference and explained to her my view. My impression was that Ms Muller understood my concerns and would prefer to not run the substantial risk of bringing a common law action. That being the case, I have not drafted originating process."
Also as set out earlier, the plaintiff stated in her affidavit at [34] dated 15 December 2022: "I remember that initially I was told that I had a good claim and then a few weeks later I was told I did not have a good claim. That happened following a conference by telephone with a barrister. After that conference I was not very sure of anything. I was so nervous and anxious before that barrister's meeting that I took a Valium tablet, which I felt I needed to do to be able to take the call [my emphasis added]."
The conflicting advice provided by Mr O'Rourke to the plaintiff was such that it cannot be said that she was aware of the fact of the injury was sufficiently serious to justify the bringing of a cause of action: s 50D(1)(c).
The burden of the plaintiff's evidence is that she did not know, until RMB lawyers told her, of any steps that defendants should reasonably have taken to make her workplace safe or safer. On 17 May 2021, it is true that the plaintiff looked to Mr Watt from RMB lawyers. However, he did not provide her with any advice about her right to common law damages, but only as to workers' compensation entitlements, which she had previously been recommended to accept.
The plaintiff initially consulted Mr Robert Foster of RMB Lawyers for advice after her ex-partner Max commenced proceedings against her. Mr Foster assisted the plaintiff to get her car and possessions back from Max. At the conclusion of that matter, she was sent a brochure advertising other legal services provided by RMB Lawyers. She decided to seek advice about her injuries. She says that after the legal action with Max was finalised, she felt able to deal with her possible claim for compensation.
In my view, the plaintiff may have been aware of the seriousness of her major depressive order in September 2016, but it was not until she was advised by Mr Robert Foster of RMB Lawyers that she was aware that the 'injury was sufficiently serious to justify the bringing of an action on the cause of action': s 50D(1)(c).
Before being advised by Mr Foster, the plaintiff was told not to pursue a common law claim. The plaintiff should not be required to second guess the opinion of legal professionals: Baggs at [34]-[36]. The plaintiff's actions were sufficient to satisfy the element of taking all reasonable steps for the purposes of s 50D(2): Taboas at [58].
The plaintiff has been under a disability and time has been suspended from August to 29 April 2021. Further, the plaintiff was not aware that her psychiatric injuries were not sufficiently serious enough to justify bringing an action on the cause of action until 29 April 2021. I have discussed delay and whether the defendants will receive a fair trial in detail under WCA s 151D, insofar as Mt Arthur is concerned, I have taken these factors into account in relation to the extension of the limitation period under the Limitation Act. I am satisfied that Mt Arthur will receive a fair trial in relation to the Limitation Act.

[31]

The plaintiff's submissions

On 10 May 2022, the plaintiff filed the SOC in the proceedings. The plaintiff seeks leave to extend the time to commence proceedings against all three defendants in their capacity as her employers for the periods between 16 November 2012 and July 2016.
In July 2016, the plaintiff ceased work at Mt Arthur although she had first ceased performing work and had taken sick leave from May 2016. In my view, the relevant date of the plaintiff's psychological/psychiatric injury for the purpose of the proceedings should be taken to be 30 July 2016 and she ceased work.
Depending on the date that the cause of action occurred, the plaintiff was required to commence proceedings by July 2019. I will take the relevant date to be from 30 July 2016. Therefore, the three-year time limit expired on 30 July 2019.
On 10 May 2022, the plaintiff commenced proceedings. Hence the delay is approximately 2 years and 10 months. As I said earlier, it is arguable that Mt Arthur is considered an employer under the WCA, so if that is so the same period of delay applies to it as from 30 July 2016 to May 2022. Namely, 2 years and 10 months under the WCA.
An application for leave before a court 'will not, ordinarily, be narrowly construed. This is because it will be inferred that no court will exercise such powers arbitrarily, or capriciously, or such as to work oppression or injustice'; Salido v Nominal Defendant (1993) 32 NSWLR 524 per Kirby P at 538 ('Salido').
In Gower v The State of New South Wales [2018] NSWCA 132 the Court of Appeal in relation to WCA s 151D identified three discretionary factors that the plaintiff must satisfy in order for an extension of time application to be successful (per Basten JA at [4]):
There is a sufficient and acceptable explanation for each period of delay;
The plaintiff has a reasonably arguable claim in negligence against each defendant.
The conduct of the trial would not cause significant prejudice to the defendant if leave was to be granted.
The plaintiff bears the onus of proving that it is fair and just for a limitation period to be extended, and the defendant bears the onus of proving actual prejudice 'beyond that presumed to occur by reason of effluxion of time alone'.

[33]

The plaintiff's submissions

While I will reproduce the plaintiff's submissions here, I accept that much of it is repetitive, so I will attempt to summarise them.
Since July 2016 (my findings) most of the time until she consulted solicitor, Martin Rowney in 2021, the plaintiff has been severely impaired in her capacity to pursue any litigation. Although some steps were taken to consult with lawyers, she did not have the capacity to comply with recommendations nor engage with advice about her potential claim for common law damages. Earlier I have made findings to this effect.
In the plaintiff's evidence is that when she had instructed Shine Lawyers she was having suicidal thoughts and was unable to manage activities of daily living, including showering and preparing meals. In early 2019, she was living in a caravan on her brother and sister-in-law's property.
The plaintiff was unable to properly engage with Shine Lawyers in order to provide instructions with respect to her claim, or understand advice given to her with respect to her claim.
At the time of the conference with Carroll & O'Dea and Mr O'Rourke, barrister, on 29 July 2019. The plaintiff had just ended a relationship with Max, who was violent, controlling and abusive toward her. This toxic relationship contributed to the worsening of psychiatric disorder of major depression, PTSD and anxiety.
I have already made findings favourable to the plaintiff as to the plaintiff's lack of understanding of the election document, spoken about at that conference. In the end, she was advised to stay on workers compensation payments and not to pursue common law proceedings.
To the extent that the plaintiff had any capacity to consider the legal advice she received from October 2018 to July 2021, (which is denied) having regard to the expert medical opinion, that advice was contradictory and ultimately incomplete and dissuaded the plaintiff from taking proceedings.
Some deficiencies in the plaintiff's interaction with lawyers that stem from failures to actually meet with the plaintiff in person (partly due to COVID-19), to obtain information from persons who were close to the plaintiff such as family members, to obtain up to date opinions from treating practitioners, to obtain all relevant evidence that was available concerning the allegations of bullying and harassment and the defendants' actual or constructive knowledge of the events, to obtain expert medical opinion regarding the plaintiff's legal capacity and to consider all available causes of action including the commission of an intentional tort by the employee, for which Mt Arthur could be held liable.
In Smith v Grant [2006] NSWCA 244, Basten JA said at [60] (Handley and McColl JJA agreeing): "if a claimant could reasonably rely upon the conduct and advice of his or her solicitors, although it was negligent, such reliance could prove a satisfactory explanation for delay in commencing proceedings."
The plaintiff submitted that she should not be held responsible for these deficiencies. The conduct of her solicitors should not be 'sheeted home' to her, and further the identification of that conduct adds to the satisfactory explanation for delay in commencing proceedings.
Although in this case the solicitor of Carroll & O'Dea Lawyers does not make any admissions, the plaintiff has submitted that it is apparent that while Carroll & O'Dea and counsel acted for the plaintiff, vital information was missed that led to advice that the plaintiff should not pursue any claims for common law damages, but rather stay with the compensation benefits.
Once Mr Rowney ascertained the plaintiff's potential rights and advised her of them, he commenced the common law proceedings expeditiously with due haste, including obtaining the plaintiff's files from her previous solicitors, arranging a medico-legal appointment with Dr Gertler and briefing counsel.
There was delay in obtaining the plaintiff's previous solicitor's files, although that delay was not at the hand of her current solicitors and regardless, should not be 'sheeted home' to the plaintiff. Further, the delay is not so extraordinary as to be beyond good professional practice when the courts have accepted such 'lack of expedition is unfortunately, frequently encountered'.

[34]

TESA and Chandler's submissions

So far as TESA's explanation for the plaintiff's delay is concerned, the plaintiff appears to rely on the disability provisions of the Limitation Act to explain why she did not commence proceedings for a significant period of time between when she ceased work and the actual commencement of proceedings. TESA submitted that it must go back to the relevant period of employment in 2014. The plaintiff was well enough to keep working and manage her day-to-day affairs in 2015 and 2016. Even from the time she ceased work she was able to carry on, including taking trips and moving (to a caravan on her brother and sister in law's property), and it is noteworthy that it is only a medico-legal specialist, Dr Gertler, who did not see the plaintiff at any relevant time who suggests that she was relevantly impaired. But the treating psychiatrist, Dr Wade, and the two treating psychologists, Ms Hellyer and Ms Vine, as well as the treating general practitioner, who saw her during the relevant period, expressed no such opinion.
The reports of Dr Gertler do not appear to have a complete history and he does not explain his opinion, which emerges as an ipse dixit. Secondly, it is difficult to imagine two experienced personal injury legal practitioners like Mr O'Rourke of counsel and Mr Cockle not detecting signs that the plaintiff could not understand what was happening and there is no suggestion that she complained to them of any difficulty grasping things.
With all respect to the plaintiff, it is not difficult to tell a legal adviser whether or not to commence proceedings. This, however, is a consideration that probably has nothing to do with her present application so far as it affects TESA.
Chandler makes similar submissions on TESA in criticism of Dr Gertler's opinions but adds some more.
There are two difficulties with any weight being afforded to Dr Gertler's opinion. First, the doctor does not identify the factual basis on which he has expressed his opinion. The basis for the history relied on by Dr Gertler, that the plaintiff experienced a marked worsening of her symptoms after the conference in June 2019, is not identified. It does not appear to be based on contemporaneous reports of clinical records and is presumably just a recitation of the assertion made by the plaintiff in her affidavit. Second, Dr Gertler has not provided a properly reasoned basis for his opinion, which is simply a bare assertion without explanation contrary to the accepted principles for the admission of and affording of weight to expert medical opinion.
The basis of Chandler's submissions focus on the advice given to the plaintiff on 29 July 2019 to the effect that the plaintiff had received advice of which she was fully understood. I have already made findings where I disagree with these submissions.
Forensic prejudice can be presumptive (that it can be presumed on a commonsense basis or the basis of human experience given the lapse of time) or can be actual. As regards the latter, there is an evidentiary onus on a defendant who wishes to oppose the application by reference to e.g. absence of witnesses, absence of records, illness to witnesses etc. but the overall onus remains on the plaintiff who must persuade the court that there is no significant prejudice. The defendants referred to Itek Graphix Pty Limited v Elliot [2002] NSWCA 104 at [87] per Ipp AJA ('Itek Graphix'). I take Itek Graphix to establish that a plaintiff who makes a deliberate forensic decision not to commence proceedings within the 3-year period. In my view, this is not what happened in these current proceedings, as the plaintiff was not able to comprehend what took place at the conference on 29 July 2019, nor the implications of what she was advised. I have set my findings out earlier in this judgment under the heading "the election". Item Graphix is not applicable to the situation.

[36]

The plaintiff's submissions

The plaintiff submitted that she has an arguable case.
The plaintiff's SOC identifies with sufficient particularity the events which give rise to causes of action in negligence and the commission of an intentional tort by the employee for which her employer is liable. The allegations include bullying and harassment and assault. By reference to the current legal authorities, if the facts alleged are proven then it is likely that the plaintiff's claims will succeed.
The fact that Mt Arthur had in place a bullying and harassment policy demonstrates that it was aware of the potential for harm to occur and there is unequivocal evidence that such a policy was not disseminated to workers or followed in this case.
Evidence is also available to demonstrate that Mt Arthur was or ought to have been aware that the plaintiff was at risk of developing psychiatric injury and ought to have taken proactive steps by way of counselling or some other form of intervention that would have prevented the development of said injuries.
The plaintiff has tendered on this application detailed records from the defendants including the Induction Handbooks of BHP Billiton and Chandler McLeod. The BHP Billiton Induction Handbook contains a section regarding bullying and harassment at pages 18 to 20. After defining bullying and harassment, the section relevantly informs staff members 'It is important that you consider the implications of your behaviours and support your colleagues to speak up and raise concerns'.
The Chandler handbook notes at page 13, "You must take all reasonably practical steps to ensure that bullying does not occur in your workplace and to resolve or report any instances of bullying".
When the plaintiff was experiencing difficulties in the workplace due to the alleged bullying and harassment by the employee, she on at least two occasions raised her complaints, each report being made long before she ceased work in May 2016. By taking no action and effectively inverting the situation to require changed behaviour of the plaintiff, rather than the person who was bullying and harassing, Ms Smoothy failed to ensure the plaintiff's safety in the workplace.
Mr Moir, a supervisor at Mt Arthur failed to respond properly to the plaintiff's concerns. The management action from Mr Moir and Mr Hodges to sit the plaintiff down with the employee and tell them to act in a civil manner and to get along was self-evidently inadequate by reference to contemporaneous standards. The plaintiff was not protected from harm and again the matters raised regarding the employee's behaviour were not addressed. Mr Moir cannot recall writing anything down, which also represents a failure to adequately address the complaints the plaintiff was raising regarding the employee.
By failing to properly investigate the complaints that were made by the plaintiff during her employment, the behaviour of the employee towards her continued leading to the plaintiff suffering a significant psychiatric injury.
Should leave to proceed be granted the plaintiff will have the opportunity to gather additional evidence in support of the allegations including expert evidence from occupational health and safety experts and medical experts, in particular in relation to causation of harm. I would add, so will the defendants have the opportunity to obtain further evidence and reports.

[40]

Resolution - Arguable case

All defendants owe a non-delegable duty of care towards the plaintiff. It is not enough in an application of this kind to say that the employee employed by Mt Arthur was on a frolic of her own.
While the merits of the case are relevant to the exercise of discretion: Commonwealth of Australia v Shaw (2006) 66 NSWLR 325; [2006] NSWCA 209 at [40] and [84] per Basten JA, a determination of the liability case is not required on this interlocutory application.
Australian courts have recognised liability under the tort of negligence for psychological injury caused by bullying behaviours.
In Koehler v Cerebos Australia Pty Limited (2005) 79 ALJR 845 McHugh, Gummow, Hayne and Heydon JJ quoted from Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; [2002] HCA 35 at [16], [61] to [62] and [201] and confirmed the relevant test to be: "whether, in all the circumstances, the risk of a [particular] plaintiff … sustaining a recognisable psychiatric illness was reasonably foreseeable, in the sense that the risk was not far fetched or fanciful."
The liability includes vicarious liability for the behaviour of employees; see for example, New South Wales v Mannall [2005] NSWCA 367. The liability can extend to tortious misconduct: see for example Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471 at [87], [261], [409]-[410].
The plaintiff has an arguable case against all of them. They may be liable as employers or have owed the plaintiff non-delegable duties of care.
The duty owed by the employers is that set out in the joint judgment of the High Court in Czartyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 389 ('Czartyrko') at [12]: 'An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.'
The plaintiff's central allegations against the defendants include: 1. vicarious liability for the intentional conduct of the employee; 2. vicarious liability for the negligent conduct of persons in authority whom the plaintiff approached regarding the employee's conduct including Sharon Smoothy, Mr Hodge, Mr Moir, Mr Thomas and Ms Farr; 3. direct liability for failing to put in place and enforce an effective bullying and harassment policy; 4. direct liability for failing to investigate the plaintiff's complaints and condition properly or at all; and 5. direct liability for failing to provide the plaintiff the opportunity for psychological counselling and assistance.
If I were to accept TESA and Chandler's submissions, a labour hire company as employer has no duty of care to do anything, so far as the plaintiff is concerned. These submissions do not accord with the non-delegable duties set out in the outset of my resolution.
I accept that some of Mt Arthur's employees conduct took place outside and in and about the mine at Mt Arthur and these allegations may not succeed at trial. However, the most significant and dangerous incident took place at the mine at Mr Arthur, namely, when the employee flooded a ramp that the plaintiff was obligated to drive the dump truck down it. To say the least, it was unsafe and dangerous.
In these circumstances, it is my view that the plaintiff has an arguable case against all defendants.
The last issue, pursuant to s 151D(2) of the WCA, is whether the defendants will receive a fair trial.

[41]

The plaintiff's submissions

The plaintiff submitted that a fair trial of the issues can take place, notwithstanding the effluxion of time. Further, the 'mere fact that an extension of time will involve some forensic prejudice to the putative defendant cannot, of itself, be sufficient to disentitle the claimant to the leave sought': Salido.
While delay in commencing proceedings outside the 3-year limitation period, it has been held to give rise to 'presumptive prejudice' however has not been a bar to leave being granted, especially in circumstances where the defendant had fully investigated an accident and paid the plaintiff compensation: Humble v HMS Australia Operations Pty Ltd [2020] NSWSC 907 per Harrison AsJ at [32]. Mt Arthur has not filed or served any evidence, so far as actual prejudice is concerned.
TESA relied upon the affidavit of Mr Najeh Marhaba sworn on 13 April 2023, who is the solicitor for Coal Mines Insurance Pty Ltd, the workers' compensation insurer of TESA. Mr Marhaba deposed that a QuantumCorp (an investigator) has been engaged to investigate the plaintiff's allegations. TESA's investigations to date are not comprehensive.
The highest Mr Marhaba's evidence reaches is a significant concern that TESA may suffer actual prejudice in so far as relevant witness and contemporary evidence has been lost or has been rendered unreliable or incomplete due to the significant period of time since the deemed day of injury 16 May 2016 and the plaintiff's employ with TESA between January 2014 and December 2014'.
Mr Marhaba has not established what material is no longer available and how that impacts on the terms of the prejudice. TESA has not placed in evidence sufficient facts to satisfy the Court that actual prejudice has been occasioned.
While she identifies difficulty in obtaining instructions from TESA, this cannot be construed as being due to any delay in commencement of proceedings by the plaintiff (aff Marhaba at [18], [29], [30] and [31]).
Chandler has filed and served affidavits of Mr Paul O'Rourke dated 12 April 2023 and Mr Shaun Cockle affirmed 13 April 2023. This evidence does no more than establish that there were deficiencies in the manner in which a potential claim for damages against the defendants was investigated which affected the quality of legal advice subsequently provided to the plaintiff for the reasons stated above. This material complements the evidence to be tendered by the plaintiff to provide a satisfactory explanation for delay.
There is evidence from others to corroborate and complement the plaintiff's evidence regarding the bullying and harassment allegations and to establish negligence on the part of the defendants and the commission of an intentional tort by the employee, for whom Mt Arthur will be liable.
This material is to be found within the contemporaneous Mt Arthur induction Handbook and transcripts of interviews conducted with other mine staff by Inspector Paul Hamson of the Department of Mines in August 2016.
The induction handbook contained information about bullying and harassment and identified a policy for dealing with such behaviour. It provided, "Harassment is an action, conduct or behaviour that is viewed as unwelcome, humiliating, intimidating or offensive by the recipient. Bullying is repeated verbal, physical, social or psychological abuse by a person or group of people at work." See pages 20 to 21 of the handbook.
Ms Sharon Smoothy, union representative, acknowledged that the plaintiff notified her of the employee's behaviour and that it was affecting her wellbeing in 2014. Ms Smoothy did nothing about the complaint because she did not personally witness the events. Ms Smoothy never spoke to the employee about her behaviour.
Ms Caroline Ritter, a co-worker, was aware that the employee had been harassing the plaintiff for quite some time. "Some of the stuff we've seen and some of the stuff [the plaintiff] said." The bullying had been going on for a couple of years. Ms Ritter stated: "Some of it I've seen but some of it she's spoken about when she's been really upset, and we've asked her…. The employee will do things like, this could be something she does to all contractors too, but she would deliberately call up her truck and not give [the plaintiff] any more than like 30 mins on a crib break or would deliberately give her trucks that needed fuel that's something I know she does to others because she's done it to me when I was a trainee. Just stuff like that. Like you'd see her walk past and just, we ask [the plaintiff] too because she used to walk….[210] [the plaintiff] walks a particular way … she was doing it because she wanted to avoid the employee." "The employee was making her feel like crap, making her feel really small… it's stupid shit like she'd walk past and stick her finger up for no reason, but you know that's not very nice."
Ms Gardiner has also written a statement in relation to her knowledge of the plaintiff being bullied and harassed at the time of working in the mine at Mt Arthur. The employee has denied the allegations made by the plaintiff against her. The employee's evidence is that no supervisors ever spoke to her about bullying behaviour towards the plaintiff and that the employee never received bullying and harassment training. The employee's evidence does not accord with the evidence of those witnesses set out below. For the defendants to receive a fair trial, the most important witness is the employee. The defendants do not say that they cannot locate her or that she cannot be called to give evidence.
Mr Moir, a Mt Arthur supervisor was aware of a problem between the plaintiff and the employee and simply told them to "act civil at work and get along." However, Mr Moir also says he never received any training in relation to workplace bullying and harassment.
In 2014 Mr Hodge, a supervisor, organised a meeting between the plaintiff and the employee because he was aware that the employee was harassing the plaintiff and he said the harassment was to stop. He understood that the employee was bullying the plaintiff like saying sly things as the plaintiff walked past. He did nothing more about it.
The plaintiff's counsel submitted that this material demonstrates that none of the defendants took any steps such as (a) investigating the complaints formally (b) confronting the bully, the employee (c) offering counselling or other assistance to the plaintiff prior to the plaintiff going out on sick leave.
Medical evidence confirms the plaintiff's psychiatric condition worsened from September 2016 through to 2019. She moved into a caravan situated on a property owned by her sister and brother-in-law. She became a recluse.

[45]

Resolution

While all the defendants will suffer some presumptive prejudice, it does not amount to actual or significant prejudice for the following reasons:
There are contemporaneous documents relevant to the defendants' bullying and harassment policies that are available for consideration by relevant occupational health and safety experts and medical experts.
Since May 2016, the defendants have been on notice of the plaintiff's injury.
Two of the insurer's sought medico-legal psychiatric opinions of Drs Roberts and Jansen, but neither of them have been served. There are corroborative statements from Ms Gardiner and Ms Ritter of the bullying and harassment at Mt Arthur mines and its effect on the plaintiff. They are set out earlier in this judgment and they diagnosed her with a psychiatric condition arising from the bullying.
The defendants' responses to the plaintiff's notification of complaints are documented in interviews that were conducted as part of an investigation by Mine Safety. The NSW Department of Industry Resources Regulator. Records of interviews of Inspector Paul Hamson have been produced on subpoena. Those interviewed include Sharon Smoothy, Simon Hodge and Bevan Muir who the plaintiff alleges she notified of the bullying and harassment.
While TESA relied on an affidavit of its solicitor, its enquiries are ongoing. There are crucial documents available. TESA does not suffer actual prejudice. It was put on notice of the claim in 2016. Chandler has not put on any evidence of actual prejudice.
The clinical records for all the plaintiff's treating medical practitioners are within the possession of the plaintiff's solicitors or have been produced on subpoena and the defendants have available to them relevant records as to the plaintiff's earnings before and after the accident.
I accept that TESA and Chandler may suffer some presumptive prejudice by the delay of 2 years and 10 months. I also accept that Mt Arthur may suffer some presumptive prejudice caused by the delay of 5 years and 10 months.
As to the delay of 2 years and 10 months after the limitation period expired. It is my view, that the plaintiff has given a satisfactory explanation for delay, has established that it has an arguable case against all the defendants. They will receive a fair trial. Justice dictates that the plaintiff should be granted an extension of time to commence these proceedings.

Muller v Mt Arthur Coal Pty Limited

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Cases Cited (42)