By Notice of Motion filed 13 September 2023, Jason Vincent Mulvihill ('the plaintiff') seeks the following orders:
1. An order Nunc Pro Tunc that the Plaintiff be granted leave to proceed with these proceedings pursuant to Section 151D and 151DA of the Workers Compensation Act 1987 (NSW).
2. Such further orders as the Court thinks fit.
3. The Defendant to pay the Plaintiff's costs of the Motion.
[3]
Background
By Statement of Claim filed 28 June 2023 the plaintiff seeks damages, interest and costs from Coles Supermarkets Australia Pty Ltd ('the defendant') for an injury he allegedly sustained in the course of his employment with the defendant on 15 November 2017.
The plaintiff was injured whilst unloading a truck in the delivery dock of a Coles store in Newport, NSW. The plaintiff was employed as a grocery section manager at the defendant's Newport store and was using a pallet jack to unload palletised goods from a delivery truck when the pallet jack came back towards him unexpectedly such that he suffered a crush injury to his right foot.
The injury was reported immediately and in the following days and weeks he came under the care of the defendant's rehabilitation providers both medical and allied health. Attempts to return the plaintiff to full-time work were unsuccessful.
The initial surgery to his ankle/foot was unsuccessful with the plaintiff developing a chronic regional pain syndrome ('CRPS') such that the plaintiff at the young age of 32 is now significantly disabled. The plaintiff has been assessed in the Personal Injury Commission of New South Wales ('PIC') as having a 35% whole person impairment ('WPI').
The plaintiff's claim for 'work injury damages' relative to the injuries suffered being damages for economic loss only, per the operation of the Workers Compensation Act 1987 (NSW) ('WCA').
[4]
Legislative Framework
The non-delegable duty owed by an employer to a worker is admitted by the defendant and its scope is uncontroversial being to take reasonable care to avoid exposing the plaintiff to unnecessary risk of injury: see Czatyrko v Edith Cowan University (2005) 79 ALJR 839 at [12] (Gleeson CJ, McHugh, Heydon, Callinan and Heydon JJ):
'If there is a real risk of any 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 employer must take into account the possibility of thoughtlessness, or inadvertence, or carelessness, particularly in the case of repetitive work.'
Section 151D of the WCA relevantly provides:
151D Time limit for commencement of court proceedings against employer for damages
…
(2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.
In Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 ('Howley'), McColl JA (Meagher and Barrett JA agreeing) described at [44] the broad discretion conferred:
'Section 151D(2) does not spell out specific criteria to be taken into account by the court when exercising the discretion to extend the time to commence court proceedings sought to be commenced more than 3 years after the injury was received: cf s58(2), 60C(2) Limitation Act 1969 (NSW); s109 Motor Accidents Compensation Act 1999 (NSW).'
[5]
The test
The general principles that apply to an extension of time under s.151D were discussed in Salido v Nominal Defendant (1993) 32 NSWLR 524:
The primary rule is that each case must be determined on its own facts;
The onus of establishing an entitlement to a grant of leave is on the applicant.
The fact that the defendant will suffer some forensic disadvantage through the extension is not of itself decisive, it is a relevant consideration; and
While the discretion is not to be narrowly construed, the applicant must demonstrate that it is fair and just that leave be granted.
In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 ('Brisbane South'), McHugh J identified four rationale to be considered in extending a limitation period:
As time goes by relevant evidence is likely to be lost;
It is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed;
It is desirable for people in the community to be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Many in the community have a significant interest in knowing that they have no liabilities beyond a definite period;
The public interest requires that disputes be settled as quickly as possible.
The central question to be resolved in exercising the discretion conferred by s 151D(2) is what is fair and just in the circumstances or, in other words, what the justice of the case requires: Itek Graphix Limited v Elliott (2002) 54 NSWLR 207 ('Itek') at 224 (Ipp AJA):
'In my opinion, in limitation legislation such as s151D(2) of the Workers Compensation Act, where a broad discretion is conferred to grant leave to sue after expiry of the limitation period, the general question that has to be asked is what is fair and just (per Gleeson CJ in Salido). Or what does the justice of the case require (per McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541]). In answering such a question the justice of the case must be evaluated by reference to the rationales of the limitation period that has barred the action, including the four rationales to which McHugh J refers.'
With reference to the above authorities, I accept that the essential elements to be considered in an application to extend time under s 151D are:
1. An explanation for the delay.
2. The degree of any forensic prejudice to the defendant such that a fair trial (as distinct from a perfect trial) can occur.
3. There is an arguable or prima facie case; leave would not be given for a case without prospects.
[6]
Prejudice
Ordinarily prejudice is of paramount importance (Itek, at 207 and 225). With respect to 'prejudice' in Howley, McColl JA pointed out at [48]:
'The effect of Brisbane South "is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant": Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 (at [119]) per Sheller JA (Meagher and Handley JJA and Brownie AJA agreeing). "Significant prejudice means such prejudice as would make the chances of a fair trial unlikely": The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 (at [96]).'
In Holt v Wynter (2000) 49 NSWLR 128 the Court of Appeal applied the test of Toohey and Gaudron JJ in Brisbane South at 550:
'The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent.'
Presumptive prejudice, such as prejudice due to the ordinary passage of time, is not an automatic bar in the absence of demonstrated significant, actual prejudice (Saad v J Robins & Sons Pty Limited [2003] NSWCA 87 at [35], McMartin v Hurlcon Manufacturing & Sales Pty Limited [2014] NSWSC 1812 at [35]).
Should a defendant seek to rely on actual prejudice, I accept that the onus is on the defendant to adduce evidence pointing to any actual prejudice (Sydney City Council v Zegarac (1998) 43 NSWLR 195 at 197 (Mason P). In Brisbane South with reference to this onus, Toohey and Gummow JJ said (at 547):
'There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission (Vict) in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd: "It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice'.'
[7]
Discussion
The plaintiff's injury was occasioned on 15 November 2017 and therefore, subject to delays as authorised by the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ('the WIM Act'), the proceedings should have been commenced on 15 November 2020 being the 3 year period under s 151D of the WCA.
I accept that the plaintiff bears the onus given the terminology of s 151D(2) includes 'A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages…'.
Further, whilst s 151D does not spell out the specific criteria to take into account, I accept that the section grants a wide discretion to a Court with a question to be asked as to 'what is fair and just' and 'what does the justice of the case require'? (see Howley).
In this matter, the plaintiff relies on his affidavit dated 12 September 2023 (exhibit A) which shows the evolution of his injuries over a period of time. Initially, he was of the view that with some treatment he could return to full duties (at [19]).
I accept that the notice of injury was made shortly after the events on 15 November 2017, it seems that it may not have been recognised as a significant nor catastrophic injury to prompt the defendant to conduct extensive investigations.
The plaintiff has qualified and will rely upon an expert opinion from Sharon Todd who identifies a number of failures on the part of the defendant in the system of work that gave rise to a foreseeable risk of injury which could have been ameliorated or avoided.
The injury was investigated immediately by the defendant, liability was accepted, and substantial payments have been made to date relative to weekly compensation to reflect the plaintiff's WPI. I note that pursuant to s 151H of the WCA, the plaintiff needed to be agreed or certified to be greater than 15% WPI in order to bring the Work Injury Damages ('WID') claim. This process was completed in April 2022, some 18 months after the three year anniversary of injury.
The plaintiff's evidence demonstrates that he underwent a difficult treatment course involving surgery and then referral to pain management specialists. He sought guidance from solicitors within eighteen months of the injury at which time he was told his condition needed to stabilise before any further action could be taken from a legal point of view.
I accept that for any definite assessment of WPI to be made, the lapse of a twelve month period post the last surgical procedure is generally acceptable to allow the stabilisation of an injured party's condition.
In November 2020, the solicitor for the plaintiff, most prudently, despite the fact that the WPI was not yet capable of assessment at that stage, took steps within the limitation period, to put the defendant on notice of a potential WID claim subject to agreement or determination of the level of WPI.
The plaintiff's solicitor describes in his affidavit (exhibit A) the further steps to prosecute the claim, including the referral of the dispute regarding the level of WPI to the PIC given the WPI claim was not dealt with by the defendant despite medical assessments by Drs Miniter and Chase in June 2021.
The PIC issued a Medical Assessment Certificate certifying a 35% WPI in April 2022 which then allowed a formal WID claim to be made.
A Pre-Filing Statement was served on 24 November 2022 which saw time 'stop' per the operation of s 151D of the WCA.
The defendant submits that it was not truly aware of the significance of the claim until May 2021 and its investigations were limited to meet what was then perceived to be a common law workers compensation claim.
The defendant tendered an affidavit of Susie Morando affirmed 27 October 2023 (exhibit 1), who is a claims advisor for the defendant. Her affidavit at [3] states as follows:
'I have attempted to identify the truck which was involved in the injury sustained by Mr Mulvihill's role at the time of the injury on 15 November 2017, and in turn the height of the floor of the back of the truck relevant to the loading dock lift of the Newport store. The enquiries were made after 24 November 2022.'
Whilst I accept that the defendant was not aware of the significance of the claim until notified in May 2021, the defendant did not try to identify the relevant truck, which to my mind would be a very important piece of evidence, until 24 November 2022, some 16 months later. These inquiries were unsuccessful.
The defendant submits that the plaintiff's case rests on an evaluation of the workplace at the time of his injury, and particularly the loading dock, its dimensions and functions when unloading trucks using an electric pallet jack. Further, the defendant asserts that one aspect of that evaluation for a Court will be the relative heights of the truck bay and the loading dock and whether these relative heights created an incline. That incline, being relevant to the alleged failure of the pallet jack then reversing into the plaintiff as asserted in the Statement of Claim. The defendant relies on these circumstances as pointing to prejudice to it, which ought result in a denial to grant the plaintiff the appropriate leave.
The parties have most helpfully agreed that the period of delay in notifying the defendant of information that would indicate that he would be making a claim for damages, given all the statutory restriction and time frames, was about 15-16 months. This is virtually the same delay that it took for the defendant's claims officer to commence investigations into the identity of the truck involved in the incident.
It is evident to me that the principal reason for the delay was the development and treatment of the plaintiff's medical condition over time and the need for that condition to stabilise before an assessment of WPI could be made.
In any event many of the authorities often quoted (such as Itek) dealt with different legislative regimes that at the time of those decisions allowed full (or near full) recovery of loss through damages whereas in a WID claim such as in these proceedings, the plaintiff's claim is limited to the recovery of economic loss only such that the decision to pursue a claim by necessity cannot be made until a plaintiff's condition, and any need for treatment, has stabilised and the level of WPI determined.
It is clear that the plaintiff's solicitor has shown commendable thoroughness in pursuing the assessment of WPI and then assembling evidence to support the WID claim.
I find that the plaintiff has provided an explanation for the delay in bringing these proceedings, and that the defendant was put on notice of a potential WID claim within time. The parties have agreed the 'relevant' period is some 15-16 months.
I further find that the plaintiff has an arguable case on liability and the defendant has not demonstrated any actual prejudice.
[8]
The Strength of the Claim
In Gower v State of New South Wales [2018] NSWCA 132 ('Gower'), Justice White discussed this aspect of the Court's consideration of a grant of leave.
His Honour emphasised the need to consider the nature of a plaintiff's claim and its viability in considering a grant of leave. That matter turned on the particular allegations of negligence made by the plaintiff and the absence of evidence to support it, but with particular reference to the restrictions on being able to bring such evidence after the pre-filing processes had closed (s 318 of the WIM Act).
Gower is not authority for the proposition that a leave application requires a de facto trial on liability at the interlocutory stage.
The plaintiff has an arguable case on liability. The injury is described in the plaintiff's evidentiary statement and the plaintiff relies on expert opinion evidence on liability.
There is no suggestion a fair trial is not possible and given the plaintiff has provided an adequate explanation for any such delay and has an arguable claim, it is fair and just the plaintiff be granted leave to proceed, and I propose to do so.
[9]
Costs
The plaintiff seeks an order that the defendant pay its costs of the motion as the defendant failed to act with any sense of urgency and has not provided any evidence of the steps it took to investigate the claim once on notice in November 2020 and November 2022, and has provided no explanation for their position.
The defendant submits that costs of the motion should be costs in the cause, as the extension of time is a requirement of leave not a discretion for the defendant to exercise. I accept that submission.
[10]
Orders
1. I grant the plaintiff leave to proceed with these proceedings pursuant to the operation of s 151D of the Workers Compensation Act 1987 (NSW).
2. Costs to be costs in the cause.
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Decision last updated: 20 February 2024