The plaintiff, by notice of motion filed on 14 February 2020, seeks leave pursuant to s 151D(2) of the Workers Compensation Act 1987 (NSW) to extend time to continue a claim for damages for personal injury sustained during the course of her employment on 25 January 2010.
The grant of leave is opposed on the basis of the adequacy of the explanation for the delay, together with presumptive prejudice arising from that delay.
[2]
The legislative framework
Section 151D(2) provides:
"(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 concern against the employer liable to pay that compensation more than three years after the date on which the injury was received, except with leave of the court in which the proceedings are to be taken."
The plaintiff bears the onus of establishing that "the relevant delay is not likely to make the proceedings unfair or to cause real prejudice to the proposed defendant, that is, the person having the benefit of the time bar": Gallagher Bassett Services Pty Ltd v Murdock [2013] NSWCA 386 at [26].
Section 151D(2) does not provide a list of factors to be considered, and as a result "the general question that has to be asked is what is fair and just ... [or] what does the justice of the case require?" (Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 at [45], citing Ipp JA in Itek Graphix Limited v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207 at [87]), with reference to the rationale behind the limitation provisions. That rationale is, broadly speaking, that "as time goes by relevant evidence is likely to be lost; that it is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed; the desirability 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 and the fact that the public interest requires that disputes be settled as quickly as possible." (Howley v Principal Healthcare Finance Pty Ltd at [46]).
This requires consideration of the operation of s 151D in the context of statutory provisions governing the procedural requirements relevant to the bringing of a claim for work injury damages. These are as follows:
1. Section 151H(1) provides that no damages may be awarded unless the injury results either in death or injuries resulting in a degree of permanent impairment that is at least 15%.
2. Section 151DA provides that time does not run for the purposes of s 151D in certain circumstances.
3. Sections 313 and 314 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the WIM Act") state that a plaintiff is precluded from commencing proceedings for work injury damages until a claim is first made under s 260 of this Act.
4. Sections 281 and 282 of the WIM Act set out the obligations for the respondent to such a claim as well as "relevant particulars" (s 282).
5. Section 280B of the WIM Act provides for lump sum compensation to be paid for damages recovered.
This complex structure of steps arises from the specific nature of work injuries and the history and public policy issues leading up to the introduction of the current compensation law, including the recognition of slow onset injuries.
Leave may be granted to continue proceedings which have already been commenced, for the reasons explained by Handley JA in Mealing v Chand [2003] NSWCA 205; (2003) 57 NSWLR 305 at [8].
[3]
The period of delay
The parties now agree that the relevant period of delay is five years (plaintiff's submissions in reply, paragraph 3). However, the length of time is not of itself the reason for refusal of extension. The extension granted in Hornby v Nominal Defendant [2007] NSWCA 222 was 24 years, and the extension in The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 even longer (14 years after the limitation period, making a total of 38 years). I accept that greater weight should be applied to prejudice towards the end of the limitation period and some time thereafter (Smith v Morton [2004] NSWCA 84 at [29]).
The question is whether it is fair or just, and an application may be refused for such reasons even if the period of delay is quite short.
As to delay after the limitation period expired, the defendant acknowledges that it was not unreasonable for the plaintiff to have waited until she had evidence in the form of a medical report indicating that the 15% threshold had been met (written submissions, paragraph 15). The plaintiff cannot commence proceedings until this occurs. The defendant submits that the relevant date in the present case should be the date when the plaintiff obtained a report from Dr Lee assessing the plaintiff at 17%, namely 10 September 2015. The defendant complains that, instead, on 15 September 2015, the plaintiff, rather than making a work injury claim, brought proceedings for lump sum compensation only. She then withdrew this claim in November 2017 after additional surgery to the knees was determined to be necessary.
This withdrawal was relevant to the issue of impairment, and in light of s 66(1A) of the Workers Compensation Act 1987 (which occurred in June 2012), the defendant concedes that the decision to discontinue the claim for lump sum compensation was "soundly made" (written submissions, paragraph 23).
Dr Lee's report dated 29 December 2016 had assessed the plaintiff at 44% and the plaintiff, again without notifying a work injury claim, made a second claim for lump sum compensation (on 24 January 2017). This resulted in an offer to resolve the s 66 claim on the basis of 42% on 14 July 2017. The defendant submits that whatever explanation the plaintiff offers must end by this date.
It is acknowledged that the plaintiff did not foreshadow (a concept discussed in more detail below) or bring a work injury claim until 13 February 2018. This last period of delay (14 January 2017 - 13 February 2018) is now admitted by the plaintiff to be explicable only as oversight or neglect by her solicitors, but she relies upon the accepted principle that "the sins of the solicitor" (to use the commonly ascribed term: Van Garderen v Channel Seven Melbourne Pty Ltd [2016] VCC 953 at [85]) are not visited upon the plaintiff in work injury cases.
The defendant's submissions are:
1. Even if the plaintiff was uncertain about exceeding the threshold, she could have given "informal notice of that intention conditionally on…obtaining an assessment of permanent impairment that would satisfy the threshold imposed by s 151H" (Gower v State of New South Wales [2018] NSWCA 132 at [104] ("Gower")). However, it should be noted that, by the time this decision was handed down, the plaintiff in these proceedings had already commenced her work injury claim and Mr O'Neill concedes it would have been too late to say that the plaintiff in these proceedings had already been put on notice by Gower that she should have taken this step.
2. While acknowledging that the plaintiff would have relied upon her solicitor for advice, the defendant points to the comprehensive letter of advice provided to the plaintiff by her solicitors when she first consulted them as well as to the absence of explanation of delays by the solicitor for the defendant (in particular for the period from 14 July 2017 until proceedings were commenced on 13 February 2018).
3. While the prejudice occasioned to the defendant is presumptive rather than actual, there is a strong case of presumptive prejudice, and this was sufficient in Gower for the plaintiff to fail. I note, however, that Mr O'Neill has agreed, in response to the further submissions provided by Mr de Greenlaw, that the bulk of his claim of presumptive prejudice arises from that portion of the plaintiff's pleaded case purporting to rely (pursuant to ss 97 and 98 of the Evidence Act 1995 (NSW)) upon coincidence and/or tendency evidence arising from evidence obtained on subpoena from the defendant and other sources concerning other incidents involving these trolleys.
As to the first and second of these submissions, the questions of whether informal notice should be given and when presumptive prejudice may be sufficient to refuse an application for leave are both the subject of consideration in Gower.
[4]
The decision of Gower v State of New South Wales
Mr Gower, a teacher, suffered facial injuries when he was hit by a ball thrown by a student in September 2003. He had allowed students who had completed their class work early to go outside and play with a ball and had been struck by this ball after he went outside the classroom (at [118]). As the physical injuries were minor, the work damages claim was one for psychiatric injury only.
The main issue as to liability was whether the school had a "no balls" policy. White JA describes the case as "a weak claim" (at [148]), although not sufficiently weak to be dismissed summarily. There were also significant causation problems because of a previous incident at another school in 2000 and the issue of whether or not some of the illness was constitutional in nature. Actual prejudice in relation to both liability and causation were asserted by the defendant, in the form of missing and/or dead witnesses and gaps in the medical history.
No notice of claim for work injury damages was made until 2 September 2014, nearly eight years after expiry of the limitation period. In the intervening eight years, the plaintiff developed multiple other psychiatric and addictive health issues.
The threshold issue was uncertain for a long period. Some reports did not consider the plaintiff was over the threshold (Dr Brown's reports in 2007 and 2013 put his impairment at 1%) and a 2010 report from another doctor described him as "improved" (at [87]). It was not until the plaintiff obtained a report from a psychiatrist in 2012, putting his claim at 42%, that he was in a position to make a claim for work injury damages conformably with s 280A of the WIM Act. However, only a claim for a lump sum was made (at [104]). Proceedings for work injury damages were not commenced in the District Court until 2016. His application for extension of time was rejected on 24 March 2017 and this refusal was the subject of appeal.
The Court of Appeal dismissed the appeal (by majority), but was divided as to the reasons for its findings. White JA considered there were errors in the first instance judgment but that, on re-exercising the discretion, the appeal should nevertheless be dismissed. Basten JA considered there was no error at first instance and that the appeal should be dismissed. Simpson JA dissented, holding that a fair trial could still be had, but expressing concerns about the potential for the plaintiff to lose the case because of the neglect of his own solicitors.
The first relevant issue is to determine when prejudice is sufficiently strong to warrant refusal of the extension. The respondent in Gower had led extensive evidence at first instance of actual prejudice (including three unavailable witnesses, one of whom had died, and missing reports from eight doctors and two psychologists), both as to liability and causation issues.
While rejecting the first instance findings on actual prejudice, White JA accepted the respondent's submission that it was not on notice as to a workers injury damages claim as the investigator's 2003 report had been to this effect (at [188]), adding that notice could have been given informally. In addition, while the first instance judge had erred in characterising the prejudice as actual, there was sufficient presumptive prejudice arising from the passage of 14 years (particularly in respect of the death of one witness) for the presumptive prejudice to be described as "strong" (at [189]). When added to the weakness of the case, these factors meant that the discretion to extend time should not be exercised (at [190]).
Basten JA held that there was no error at first instance but, as to the giving of informal notice, concurred with the observations of White JA:
"5 While identifying error in the judgment below, White JA has concluded that the appeal should be dismissed because the appellant failed to give notice of his intention to claim damages at the earliest reasonable time, the appellant's case on liability was not strong and there was prejudice to the State arising from the delay. These are sufficient reasons to dismiss the appeal, the appeal being by way of rehearing in this Court."
Simpson JA dissented, both in the result and in relation to the giving of informal notice. Her Honour (at [245]) did not accept that the plaintiff could, or should, have given notice of his claim in the informal way recommended by White JA:
"[245] Contrary to the view expressed by White JA at [76] I do not accept that the appellant could, or should, have given notice of his claim for s 51H damages prior to his obtaining viable evidence of 15% impairment. In this respect s 318 of the WIM Act is of particular importance. The effect of that section is that, in practical terms, the appellant could not serve his Pre-Filing Statement without that evidence, because, if he did, he would not be able to rely on it at a trial."
Whether or not these observations support Mr de Greenlaw's position, her Honour does not state that it would be unfair to take the giving of informal notice into account because it was an unknown practice (although it must be admitted, now that I have seen the results of research by both counsel, that this is effectively the case). Her Honour's findings are based on the construction of the legislation.
Mr de Greenlaw submits that Simpson JA's observations that a fair trial could still be had despite the asserted presumptive prejudice is significant, despite being a finding contained in a dissenting judgment. However, Simpson JA's assessment that a fair and just trial was still possible are difficult to reconcile with her Honour's grave concerns about the plaintiff's solicitor's dilatory conduct of the plaintiff's case. Her Honour had the following warning for the solicitors for the plaintiff as to the ramifications of their neglect of the plaintiff's case:
"255 I cannot leave the subject, however, without making the following observations. By reason of s 318 of the WIM Act, the cases of the parties are fully laid out in their Pre-Filing Statements. A full appraisal of their relative prospects of success may thus be made. There are very obvious difficulties lying in the appellant's path to successful prosecution of his claim. Just as the respondent complains of the loss of relevant evidence, so the appellant may have difficulty in locating potential witnesses - and, even if he did succeed in marshalling further evidence, he would have to bring that within the strict confines of s 318(2).
256 There are also, as I have outlined above, serious difficulties lying in the way of the appellant attributing his present symptoms to the 2003 incident.
256 Before taking any further step, the appellant's legal advisors should, in my opinion, give very serious consideration to the consequences to the appellant of a failed claim."
Simpson JA's acceptance of the "very obvious difficulties" the plaintiff/appellant faced, including the difficulties of bringing such evidence before the court by reasons of "the strict confines of s 318(2)" appears to be at odds with her Honour's dissenting opinion as to whether or not a fair trial of the issues could take place as well as undermining her Honour's observations concerning the giving of informal notice. It was, after all, essentially their delay that led to the dismissal of the appeal, in circumstances where plaintiffs are not generally penalised for lack of forensic diligence: Singh v Singh [2017] NSWCA 15 at [26]. Her Honour's judgment does not support the plaintiff on the issue of delay by the plaintiff's own solicitor.
[5]
Should informal notice have been given and, if so, when?
The parties agree that Gower was handed down after the plaintiff commenced proceedings (namely 19 June 2018). The first question is whether, prior to White JA's recommendation of informal notice being given, the plaintiff was on notice to give, or should have given, informal notice.
Conformably with Gower (at [35]), only one claim for lump sum compensation may be made by an injured worker, and the defendant concedes it was reasonable for the plaintiff to wait until she held a 15% WPI assessment before proceeding with her work injury damages claim. However, the defendant also submits informal notice of the claim should have been given earlier on one of three dates:
1. 9 November 2011;
2. 15 September 2015; and/or
3. 24 January 2017.
The relevant provisions were enacted in 1987. If there were any judgments discussing whether informal notice should be given prior to or after the expiry of the time period, this should be readily ascertainable by a search of prior judgments over the past three decades.
At my request, both parties made such a search (as did I). No decision suggesting, or even referring to, a procedure for the giving of notice in anticipation of a claim before the handing down of Gower could be located.
Mr O'Neill did, however, refer to a decision of Neilson DCJ in Jones v Spackman [2014] NSWDC 139, where the history was as follows:
"24 …There was an informal claim made by LHD on the plaintiff's behalf for 26% whole person impairment on 19 September 2007 that was received by the insurer on the 26th of that month. In the same letter LHD asked the defendant's insurer to concede 15% WPI or greater.
25 A more formal claim for lump sum compensation was made by LHD on 4 October 2007. Later, LHD received from the plaintiff's treating dentist, Dr Nichols, a report indicating that, as far as he was concerned, the plaintiff had a present WPI of 11% which would reduce with further treatment to 5% WPI. On 7 November 2007 LHD advised the defendant's insurer of the increased sum. On 25 March 2008, that is some four months later, the defendant's insurer made an offer to pay the plaintiff WPI of 20% and a relatively modest amount under s 67. However, there was no formal concession by the defendant's insurer that the plaintiff had a WPI of at least 15%.
26 The next relevant occurrence, no doubt in response to the defendant's insurer's offer of 25 March 2008, was a letter from LHD to the insurer of the defendant, that might be seen to comply with s 280A of the Workplace Injury Management and Workers Compensation Act 1998. Section 280A does not mandate the notice; the notice appears to be mandated by ss 260 and 262 of that Act. Section 280A provides this:
"A claim for work injury damages in respect of any injury cannot be made unless a claim for lump sum compensation in respect of the injury is made before or at the same time as the claim for work injury damages."
Section 280B provides that lump sum compensation under ss 66 and 67 of the 1987 Act must be paid before the plaintiff can recover any damages under the modified common law provisions of the workers compensation legislation. Section 281 of the 1998 Act requires relevantly the present defendant to either accept the plaintiff's claim for work injury damages or to dispute it. Such a decision must be made within one month after the degree of permanent impairment first became fully ascertainable, as agreed by the parties or as determined by the approved medical specialist or, at the latest, within two months after the current plaintiff had provided the defendant with all relevant particulars about the claim. The letter of 24 April 2008 sought to provide all the relevant particulars.
27 The defendant, via his insurer, responded to that claim by letter dated 20 May 2008. In that letter the insurer did not accept liability for the plaintiff's work injury damages claim and refused to admit that he was negligent, as alleged or at all, in causing the plaintiff's injuries. It would appear that, immediately after the insurer of the defendant denied liability for the plaintiff's work injury damages claim on 20 May 2008, Messrs TurksLegal commenced to act on the defendant's behalf.
28 On 15 October 2008 the plaintiff made an application to resolve a dispute in the Workers Compensation Commission. The dispute was about the assessment of the plaintiff's whole person impairment. By operation of law, that stopped any limitation period running. The dispute concerning WPI was not resolved until 17 April 2009, as I have previously mentioned. The resolution of that dispute recommenced the reckoning of time for the purposes of the limitation provision, s 151D(2), albeit that the limitation period had, in fact, expired on 14 January 2007.
As his Honour notes at [56], the statement of claim was not filed until 2 August 2013, although the limitation period had expired on 14 January 2007. A claim for actual prejudice was brought by reason of the delay. Much of the plaintiff's explanation was delay by her own legal advisers despite her repeated requests for assistance; his Honour described the speed of their conduct of the matter as "glacial".
The claim for actual prejudice failed, one of the reasons being notice of the following kind:
"70 …In any event, the plaintiff's notice under s 281 of the 1998 Act was given on 24 April 2008 and clearly alleged, as a head of negligence, a failure to properly sedate Your Wish [a horse]. In other words, the allegation was clearly raised four years and three months after the event and the defendant then delayed for another 11 months before obtaining the statement from Mr Robinson. There has been delay, clearly, on both sides."
However, his Honour went on to note the complexities of the workers compensation and the dangers of starting proceedings until the whole person impairment had been conclusively ascertained:
"That there has been delay is as plain as the proverbial pikestaff. One cause of the delay, however, is the requirements of the workers compensation legislation itself that the plaintiff's lump sum compensation be ascertained prior to her recovery of damages and, as is well known, that the whole person impairment must be 15% or more. That was ultimately not conclusively determined until 17 April 2009. Although the 1998 Act requires that lump sum compensation must be paid before damages are recovered, and does not prevent the commencement of proceedings unless the WPI has been conclusively ascertained, it would be a brave solicitor indeed who commenced proceedings at common law only to find that his client had not crossed the statutory threshold to entitle him or her to claim work injury damages, leading to the need to discontinue the proceedings and pay the defendant's costs."
As a former Compensation Court judge, Neilson DCJ is one of the most experienced judges in this field. His Honour noted that there had been notice given before the whole person impairment had been given but granted leave notwithstanding the delay on both sides by reason of the complexities of the workers compensation legislation. Rather than endorse the giving of notice in advance, he notes that "it would be a brave solicitor indeed" who commenced common law proceedings prior to certainty about the threshold, which I am satisfied did not occur in these proceedings until 14 July 2017. His Honour's views do not amount to an endorsement of the desirability of giving notice beforehand (a view his Honour opposed, in fact, in a decision handed down after Gower, which is discussed in more detail below).
There was discussion of Neilson DCJ's judgment by other practitioners in online case summary notes, as is often the case where an experienced judge hands down a helpful judgment. However, none of the electronically available case summary notes (see, for example, Sam Kennedy and Eliza Hannon, "Recent Decisions: Stable hand gets a start despite slow-running lawyers - Jones v Spackman [2014] NSWDC 139 - 22 July 2014", Turks Legal, https://www.turkslegal.com.au/sites/default/files/publications/Jones%20v%20Spackman.pdf) saw this decision as hailing a new way of putting one's opponent on notice. Neilson DCJ's decision was clearly widely read by solicitors (see the cross-examination of the solicitor in Fleming v State of New South Wales [2015] NSWDC 104) as well as judges (Grech v Bando Contracting Pty Ltd [2014] NSWDC 257), but the process of giving informal notice was not even referred to in these case summaries or judgments, let alone in other judgments prior to Gower.
There is no reference in Gower to the issue of informal notice being raised at first instance. This is because there was no such submission. I was the first instance trial judge. If this issue had been raised, there may have been other evidence to take into account (for example, the plaintiff's solicitor's requests for the cost of a report on threshold issues to be shared: see the first instance judgment at [46]), and this could have been tested on appeal.
Mr de Greenlaw submits that if the plaintiff's solicitor did not know to give such a notice (submissions in reply, paragraph 11(g)), then it was not unreasonable for the plaintiff not to do so. The problem with this submission is that Mr Gower did not know either, yet his failure to do so was held against him. This brings me to a consideration of judgments following and applying Gower (a task the parties left to me).
After Gower, the desirability of giving advance notice was considered further by the Court of Appeal in ABALink Early Intervention Services Pty Ltd v Danford [2019] NSWCA 97. The court heard submissions upon whether early notice should be given, but did not determine the issue because it had not been raised at first instance:
"36 It was put that the Guidelines had "statutory force", and that they reflected a policy whereby in order to avoid prejudice to the employer's workers compensation insurer, an employee who might in the future make a WID claim should advise of that intention within the 3 year period. It was put that this followed from what had been said in Gower v New South Wales [2018] NSWCA 132.
37 Against this, Mr Danford - after a mild complaint that this was not a matter which he had fully expected to have to meet - submitted that the Guidelines had no operation here, where it had been established in 2009 that his WPI was only 8%, by certificate binding employee and employer. It was also said that Abalink's construction was impracticable, in that in every case an employee who might in the future wish to make a WID claim should provide notice and otherwise comply with the guidelines before the 3 year period had expired, but in circumstances that at the time he or she did so, it was not lawful to commence proceedings for such a claim. Ultimately, the submission made in this Court was that notice in some form, but not "particulars of the claim and the evidence to be relied upon per clause 2 above" [of the Guidelines] needed to be given by Mr Danford of a proposed WID claim and that the failure by her Honour to refer to the absence of notice bespoke error.
38 It is not necessary to express a view on any aspect of this submission. The Guidelines had not been placed before the primary judge or addressed, even obliquely, before her Honour. They had not been mentioned in Abalink's written submissions in this Court. The reformulated submission about notice being required but not "particulars of the claim and the evidence to be relied upon per clause 2 above" only emerged in oral reply submissions on the leave application. Abalink conceded, properly, albeit only when asked by the Court, that this point fell outside the draft notice of appeal in respect of which its application had been brought. It accepted that it would be necessary to amend the draft notice. No such draft was proffered to the Court or to Mr Danford.
39 All of those reasons tell strongly against the grant of leave on a new ground."
[Emphasis added]
Although Mr Danford's observations of the problems likely to arise from giving such generalised warnings were not adverted to by Mr de Greenlaw, these have a flavour of common sense.
Many first instance judgments on extension of time refer to Gower but do not endorse, or even refer to, this notice requirement (see Law v Eurocars (Northshore) Pty Ltd [2019] NSWDC 665; Davis v Qantas Airways Limited [2018] NSWDC 260; Roberts v King Tomislav Croatian Club Ltd [2019] NSWDC 121; Van Der Borght v Memjet North Ryde Pty Ltd [2018] NSWDC 346; De Jong v Workers Compensation Nominal Insurer & Anor [2018] NSWDC 176).
Where the issue has been raised, the approach taken by Simpson JA has been endorsed. In Chaffey v MPM Maintenance Services Pty Ltd & Anor [2019] NSWDC 260, Hatzistergos DCJ stated (at [105]):
"…The argument raised following the decision of Gower v State of New South Wales was that it was open to the Plaintiff to put the Second Defendant on notice that it faced the prospect of a work injury damages proceeding within the 3 year time period, whilst it was waiting for resolution of the medical dispute.
However, his Honour went on to note (at [115]) that, as White JA had himself observed, such notice was not a prerequisite to a grant of an extension:
"Whilst I accept that the Plaintiff's solicitor could have put the Second Defendant or its insured on notice at the time of pursuing the s 66 claim of its intention to bring a work injury damages claim; this is not a prerequisite to the obtaining of leave under s 151D of the 1987 Act."
A similar submission was put to Neilson DCJ in Young v Reece Australia Pty Limited [2018] NSWDC 465, where his Honour described White JA's observations as "dictum" and went on to refer specifically to the view taken by Simpson JA:
"Again, the significance of that dictum is that it is possible for a potential plaintiff to give an informal notice of a claim for work injury damages or perhaps to give a notice that the plaintiff intends to bring a claim for work injury damages provided that he crosses the statutory threshold to enable him to do so. On the contrary, however, was the view of Simpson AJA. At [245] her Honour said this:
"Contrary to the views expressed by White JA…I do not accept that the appellant could, or should, have given notice of his claim for s 151H damages prior to his obtaining viable evidence of 15% impairment. In this respect s 318 of the [1998] Act is of particular importance. The effect of that section is that, in practical terms, the appellant could not serve his Pre Filing Statement without that evidence, because, if he did, he would not be able to rely on it at a trial."
I adopt the observations made by Neilson DCJ and Hatzistergos DCJ in their Honours' respective judgments. Giving early notice is at best an evidentiary factor, not a prerequisite, and furthermore one of doubtful value, for the reasons explained by Simpson JA and the submissions made by Mr Danford summarised above.
In the present case, I am satisfied that the threshold issue was not "conclusively ascertained", to use Neilson DCJ's words in his Honour's 2014 judgment, until such time as the plaintiff's condition stabilised. The plaintiff's gradual deterioration was unexpected in 2011, the first date proposed by the defendant, and her condition had not stabilised until 2017. There could be real difficulties if the plaintiff gives notice when, as occurred in this case, there was damage to one knee but the damage to the other was unknown. The earliest date for such notice occurred when the defendant accepted that the plaintiff was in fact over the threshold. I accept Mr de Greenlaw's submission that it was wiser for the solicitor for the plaintiff to start the lump sum proceedings in the hope of getting agreement that the plaintiff was over the threshold. The date for this agreement is 14 July 2017. That means the delay by failure to give notice on or soon after this date is the relevant period for the giving of informal notice.
In practical terms, this means that the delay the subject of challenge, in terms of giving notice, would be the period between 14 July 2017 and the commencement of proceedings on 13 February 2018.
By that time, the presumptive prejudice complained about by the defendant (including replacement of the trolleys in or prior to 2016 and the 2014 or 2015 flood destroying records) had all occurred. No prejudice, actual or presumptive, arises from this relatively short period. Accordingly, if the giving of notice of a claim is a relevant factor, I am satisfied that the giving of such notice would have made no difference.
The next basis upon which the grant of leave is opposed is the presumptive (not actual) prejudice arising from missing documents and evidence as set out in the report of the investigator retained by the defendant.
[6]
Effluxion of time and the investigator's report
Unlike Gower, there is no suggestion in the defendant's submissions that prejudice related to anything other than issues relating to liability. The defendant accepts that it was the worker's compensation insurer and is not suggesting that there is a medical gap. Nor is there any submission that this is a weak claim or that there are causation issues. The basis upon which presumptive prejudice is put is the asserted loss of evidence as raised in the report of NCA Investigations, prepared after the defendant's solicitor received instructions from the insurer on receipt of the plaintiff making a work injury damages claim.
The first point to note is that this investigation took nearly four months to complete (namely from the date instructions were provided to the date when the report was received by the solicitor). Despite taking four months, the amount of work product is scant. It consists largely of a statement by a Mr Christopher Moss, which Mr de Greenlaw summarises as stating:
1. Mr Moss is an employee of the defendant, rather than Westmead Hospital, where the incident occurred.
2. He is in a management role at least four levels (leading hand, supervisor, catering office, Regional Manager WSAHS) above the plaintiff's position.
3. He does not say whether he would expect to be informed of persons being injured or going off work on workers compensation.
4. He confirms a flood destroyed employment records, in a general sense, either in 2014 or 2015 (Mr Moss is not sure which year).
5. Although he says he had not known about the plaintiff being injured, he is able to state categorically that no other person was injured using the trolleys. The sources for this information are not specified.
6. He sets out what he believes to be the system of work unloading the trolleys by giving a description which is at odds with the plaintiff and another witness, and which Mr de Greenlaw says is wrong.
7. He admits that risk assessments were conducted on the trolleys before use, and adds that all employees signed off on safe work practices. He says he holds pre-use risk assessments of the same trolleys and adds that these are still in use at Bankstown Hospital. The fact that these trolleys are still in use in some hospitals is significant in that these can be examined not only from a mechanical point of view but in terms of their daily use.
8. He has sources which enable him to provide very specific information. For example, he is able to estimate the number of 40 trolleys used (40; see paragraph 17), how often (3 times a day; see paragraph 17), by teams of three food assistants on each occasion (see paragraph 12) and for how long (20 years). He also states that he received complaints about the trolleys, although limited to two aspects, namely that they were heavier than the earlier trolleys and there was an issue with its doors.
Mr de Greenlaw submits that this investigation is silent as to the following:
1. Was this the only factual investigation arranged? Was there an investigation when the plaintiff went off work shortly after her injury, or made a lump sum claim and, if not, why not? Were further inquiries made when the defendant's solicitors saw the affidavit of Mrs Singh (discussed in more detail below)?
2. What was the outcome of the NCA investigation (or, for that matter, any other investigations)?
3. Did NCA Investigations have any problems of the kind described in Gower, such as particular witnesses being unlocatable or dead?
Tellingly, the narrow area of inquiry means that no information is provided from Mr Almeda or the workers compensation insurer, which presumably had its own records in relation to the plaintiff for the duration of her claims.
It is clear from both the numbers provided, and their source, that there were many food assistants working these three shifts at the hospital each day. If the three times were breakfast, lunch and dinner, given the nature of hospital kitchens, this was shift work, which meant there were substantially more food assistants working daily. In addition, there were food assistant leading hands and supervisors, as well as many people working in the kitchens from which the food was served, including kitchen hands and chefs who either supervised loading the trolley or did it themselves.
This is a potential witness pool of hundreds of people available who could provide information as to the operation of the trolleys, the complaints made by the plaintiff and also complaints made by others, which complaints were confirmed by Mrs Singh. While only a small percentage of other employees would have been likely to know of the plaintiff and/or her injury, the plaintiff worked there for 26 years, and her fellow workers could have provided a great deal of information of the kind provided by Mrs Singh. There is no reference as to the results of any such enquiries.
Whether the evidence Mr de Greenlaw identifies has been obtained, and not disclosed, or not obtained because no enquiry was made although reasonably it should have been, such omissions must be weighed in relation to any presumptive evidence that may arise (The Salvation Army (South Australia Property Trust) v Rundle), to avoid the possibility that "it had conveyed a misleading impression of the extent of that prejudice" (at [102]). Hodgson JA made similar observations in Oran Park Motor Sport Pty Ltd v Fleissig [2002] NSWCA 371 at [66], as is noted in The Salvation Army (South Australia Property Trust) v Rundle at [102]. All of these decisions stress that a defendant should not be permitted to be better off by avoiding making enquiries or disclosing documents and/or such evidence it may be taken either to have (for example, by reason of statutory record-keeping obligations, or the availability of computer record searches) or to have reasonably made the subject of inquiries, than would otherwise have been the case. It is noteworthy that in Gower the solicitor for the defendant deposed at length to the many searches and inquiries she and her assistants made and attached approximately six volumes of material, whereas the defendant here proffers a two-page report.
A good example of the evidence which might have been found if enquiries of this kind had been pursued may be seen in the statement of Grace Ragni Singh, taken on 18 July 2019, which has been served by the plaintiff.
Mrs Singh worked at the Westmead Public Hospital from 2004 until her retirement in 2011 or 2012. She had previously worked in the same kind of position at another hospital so, like the plaintiff, she had a long history of food serving in hospitals. She gives a vivid description of the trolley in question, including the problems she had with the same cassette equipment described by the plaintiff, which she noted was a difficulty "from my very commencement" and which resulted in her own complaints to the supervisor. She helpfully attaches a photograph.
Mrs Singh also recalls the plaintiff coming to her to complain about her injury. Mrs Singh told the plaintiff to report it to a supervisor and complete an Incident form. In her capacity as a leading hand, she replaced the plaintiff with another employee to finish the work that day. She recalls not seeing the plaintiff for some time and eventually seeing her performing restricted duties.
In her capacity as a leading hand she received other complaints, and in particular complaints from other employees in the kitchen, some of whom later made claims for workers compensation due to injuries sustained while trying to remove the cassette from the trolley, a task she described as "truly the hardest part of our work" (paragraph 15).
Mr de Greenlaw additionally asks me to take into account a number of factors relevant to these particular claims:
1. Judicial notice can be taken of the hospital, being so large, having its own Human Resources Department, with a workers compensation section included.
2. There is a workers compensation insurer with separate records to those kept at the hospital.
3. Many long-term employees at the hospital such as food assistants, leading hands and supervisors, including Mr Almeda, are available to be interviewed.
4. Knowing the trolleys were the subject of complaint, and holding risk assessments of their operation (which have not been divulged in these proceedings), means that expert investigation of the plaintiff's claims is still possible.
5. Those trolleys were replaced in most hospitals in 2016, undoubtedly at a significant cost and after tender, which was undoubtedly preceded by an investigation as to why the trolleys needed to be replaced and risk assessments undertaken on the new trolleys.
Taking all of the above deficiencies into account, I consider the investigators' report to be of no assistance in terms of identifying presumptive prejudice. I note Mr de Greenlaw's additional submissions about the likelihood of not one but a number of relevant witnesses and documents. If any of these witnesses has a recollection of these events in terms as clear and concise as that of Mrs Singh, a fair and just trial is certain.
The affidavit of Mr Medak attaching this two-page "report" (in fact, only the statement of Mr Moss) does not identify any other source for presumptive prejudice. However, Mr O'Neill drew attention to another area asserted to give rise to presumptive prejudice, namely the portion of the statement of claim particularising tendency and coincidence evidence.
[7]
Tendency and coincidence notices in the statement of claim
Counsel for the defendant conceded, in the course of oral submissions, that the bulk of the defendant's complaints as to presumptive prejudice lay with the attempts to rely on tendency evidence pursuant to s 97 of the Evidence Act 1995 (NSW) in relation to such other claims as have "come to the attention of management".
The statement of claim was tendered as Exhibit A2. Paragraphs 15 - 17 state:
"15. On occasions staff:
a. suffered injury whilst complying with the designated system of work, when removing a cassette from the trolley;
b. lodged a claim for workers compensation in respect of the injury suffered.
16. If a claim for workers compensation were lodged by staff suffering an injury whilst removing a cassette from the trolley notice of that claim would, or alternatively should have, come to the attention of the management of the defendant.
17. The plaintiff:
a. relies on the workers compensation claims and/or the complaints made by staff to leading hand(s) and/or supervisor(s) of the defendant as coincidence and/or tendency evidence going to the poor functionality of the equipment and/or failing(s) in the system of work, including when the cassette became stuck when trying to be removed from the trolley.
b. gives notice, pursuant to sections 97 and 98 of the Evidence Act 2005 that it relies on such evidence as coincidence and/or tendency evidence."
Mr de Greenlaw began his submissions by making two observations. The first was the concession that he would have real difficulty ever being permitted to tender such evidence at trial by reason of s 318. The second was that this portion of the claim was of the "if" variety and that his client could "live without" this being a part of the claim.
More precisely, he answers the defendant's complaints about the potential breadth of non-specified records by pointing out that a similarly long period would have occurred (namely 16 years) even if the plaintiff had commenced proceedings within time, i.e. as at 26 January 2013. The addition of a further five years, in terms of documents held by the defendant, the defendant's workers compensation insurer and/or the Workers Compensation Commission of NSW, adds little to this pre-existing problem, for the following reasons:
1. Documents held by the defendant and its workers compensation insurer are generally available to the defendant without the need for a subpoena.
2. If subpoenaed, the documents would, if available, speak for themselves. The nature of work-related injury documents is such that they are more likely to have been kept than not.
The investigation report is superficial and provides no indication there are such claims. However, Mrs Singh's statement certainly refers to staff having the same problem and as making claims.
Mr O'Neill claims that the lapse of time and size of the records held makes any inquiry for such records, whether pursuant to a subpoena or not, impossible. These submissions are, however, made without any documentary evidence or information about the record-keeping of the hospital or workers compensation insurer.
I can take into account the general knowledge that work records have been computerised since at least the early 1990s and that searches for particular kinds of documents are infinitely easier than was the case before that time. This is particularly the case with both employment and hospital records, as Mr de Greenlaw points out. In practical terms, the issue of prejudice in relation to these documents will fall to be considered consistently with the principles applicable to s 318 and applications to set aside subpoenae on the basis of oppression. Oppression complaints in relation to subpoenae will not succeed without better evidence than that currently put before me.
Production of these documents is not necessary for the plaintiff's claim to be heard and determined, and the asserted difficulties of the defendant (which I do not accept) in locating these documents will not impede a fair and just trial of the issue so carefully set out in the extensively pleaded statement of claim the plaintiff brings before the court, of which this is but one part.
I also consider it is not necessary for me to place restrictions on the leave to proceed in relation to these asserted areas of unfairness. In the absence of more compelling evidence of record-keeping problems than mere statements from the bar table, I do not propose to accept them.
[8]
Conclusion: leave should be granted
I have rejected each of the bases upon which the defendant's objections to the granting of leave to proceed are reliant. Despite the length of time there is very little actual evidence of presumptive prejudice. Even if the plaintiff had given informal notice, it would have made no difference of significance in relation to information-gathering processes (insofar as I am able to glean anything about these from the very limited information provided by the defendant to support their opposition to the extension).
The correct approach to these applications is explained in ASB-Tech Services Pty Ltd (in Liquidation) v Doeland & Anor [2003] NSWCA 167. Hodgson JA (with whom Hadley JA and Cripps JA agreed) stated:
The correct approach is to regard the provision of an explanation as a necessary step in the application, and the nature of the explanation as being a matter which has to be taken into account in the ultimate determination of whether it is fair and just to grant the extension. The weaker the explanation, the greater the need to show that there would be little prejudice to a respondent.
Conformably with that approach, for the reasons set out above, I accept the explanations provided by the plaintiff's solicitors, including those parts of the explanation which relate to acknowledgements of delay by them.
I am therefore satisfied that it is "fair and just", or to use another expression, "justice requires" (Itex Graphix Pty Ltd v Elliott at [87]) that leave to proceed should be granted.
I have reserved the issue of costs.
[9]
Orders
1. Pursuant to s 151D(2) of the Workers Compensation Act 1987 (NSW) I extend time nunc pro tunc in relation to the plaintiff's statement of claim filed in these proceedings so as to continue the plaintiff's claim for damages for personal injury sustained during the course of her employment on 25 January 2010.
2. Costs reserved with liberty to apply.
3. The parties are granted leave to bring in Short Minutes of Order for a timetable for the case management of these proceedings.
[10]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 29 May 2020