Parry v Masterpet Australia Pty Ltd

District Court of NSW|2013-04-23|Before: Quality Smallgoods P

The orders sought 1The plaintiff by notice of motion filed on 12 December 2012 seeks the following orders: (1)The plaintiff seeks an order "nunc pro tunc" for leave under s 151D of the Workers Compensation Act 1987 (NSW) ("the Act") to bring her claim for work injury damages outside the three (3) year limitation period, pursuant to an affidavit of the plaintiff which will be served at a reasonable time prior to the hearing of the motion. (2)Any other orders that this honourable Court sees fit. (3)Costs.

The evidence of the plaintiff 2The plaintiff was cross-examined on her affidavit sworn on 10 January 2013. The circumstances in which she was injured at her place of work on 29 March 2004 were as follows. The plaintiff was the national supervisor of thirteen pet shops for Masterpet Australia Pty Ltd, including outlets at Merrylands, Blacktown, Newcastle and Shellharbour. On 29 March 2004, she was participating in a stocktake at the Merrylands store. As part of the stocktake, she was required to take out and count pigs' ears, which were stored in large heavy cardboard bins measuring 2' x 2'. There were many layers of pigs ears in the bins, and either as the plaintiff neared the bottom of the bin (or alternatively, as she picked the bin up) she saw a number of cockroaches scurrying around the bottom of the bin. She was immediately startled and, as an automatic reaction to so many cockroaches so close-up, jumped backwards "without even thinking about it", nearly falling on the floor, and being caught or assisted by another employee. In the process of doing so, she felt immediate and severe pain in her low back region. 3The plaintiff had suffered a previous back injury in May 2003 and had had four weeks off work, but had returned to normal duties some months before the accident the subject of this litigation. She was in considerable pain on the next day and Dr Nguyen, her general practitioner, made a home visit on 31 March 2004. She was given a pethidine injection, digesic and endone, and referred to Dr Elliot, who took an MRI scan on 23 April 2004. 4The plaintiff immediately notified her employer at the time and a letter from the insurer dated 16 April 2004 accepting provisional liability forms part of Exhibit A. A report of injury form was also completed. 5At the same time, the plaintiff consulted lawyers. After hearing an advertisement for Australian Injury Helpline Ltd, she contacted them and was referred to Beston Macken McManis. She had a brief discussion with a solicitor in June/July 2004 about weekly payments of compensation, but was told that it was "premature" (plaintiff's affidavit, paragraph 15) to pursue even a workers compensation claim. She was not given any advice about bringing a work injury damages claim. This was the extent of her advice from the first solicitor. 6The plaintiff's condition worsened and in July 2004 she underwent the first of three operations. The last of these operations was on 25 November 2005. In March 2006, Allianz Australia Workers' Compensation (NSW) Limited wrote to the plaintiff in the following terms: "We refer to your claim for Workers Compensation and advise that you may have an entitlement for Whole Person Impairment under Section 66 of the Worker [sic] Compensation act [sic]. If you wish to peruse this matter you should make contact with a Solicitor of your choice as soon as possible.If Allianz have not had a response within 2 months from the date of this letter then your claim will be finalised.Please don't hesitate to contact David Crosdale 0249851370 if you have any queries in relation to this matter." (plaintiff's affidavit, annexure BB) 7In accordance with this advice, the plaintiff contacted Low Doherty & Stratford Lawyers in April 2006. she saw a Mr Low, who sent her a pro forma letter outlining in very general terms what compensation was available. When the plaintiff queried a reference to an action for damages against her employer in June 2006, Mr Low told her "that doesn't apply to you." She was not advised at any stage during the time that she consulted this firm (April 2006 to 5 December 2007) that she might have an entitlement to pursue a work injury damages claim. 8The plaintiff continued to consult medical practitioners. She consulted Dr Conrad on 20 June 2006. Dr Conrad gave her a 22% whole person impairment, but this was described to me by counsel for both parties as being Dr Conrad's personal view and not a medical certificate for the purposes of s 151D of the Act. 9On 24 November 2006, the plaintiff's matter was resolved for $23,000 on the basis of a valid medical certificate for 17% whole person impairment. A further $15,000 was included for pain and suffering. Both parties urged upon me that the date at which the limitation period commence to run from this date, this being the date upon which her injuries were acknowledged to be in excess of the threshold. (Opoku v P & M Quality Smallgoods P/ L [2012] NSWSC 478). As is set out in more detail below, this is a controversial submission: Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 at [32]; Strasburger Enterprises Pty Ltd t/as Quix Food Stores v Sarina [2008] NSWCA 354 at [3]; Scaltrito v NRMA Insurance Ltd [2003] NSWCA 63 at [4]; Ryan v Forstaff Engineering Personnel Pty Ltd [2011] NSWSC 1009 at [16] and [32(a)]; State of New South Wales v Donnelley [2004] NSWCA 133 at [16] (date of physical injury the relevant date even though subsequent psychological injury date was "indeterminate"); BHP Steel v Necati Dum [2004] NSWCA 117. 10The plaintiff's evidence about her state of mind over is set out at paragraph 38 of her affidavit, where she states: "At no stage do I recall my previous solicitors ever advising me about my entitlement to pursue a work injury damages claim arising out of my accident. To the contrary, I recall querying whether I could sue my employer for negligence as referred to at one of the question and answers in the pro-forma letter annexed as Annexure DD. I recall being told words to the effect of "that doesn't apply to you". Accordingly I gave the question of suing my employer for negligence no further thought at all. At no stage was I ever advised that having secured a finding of greater than 15% whole person impairment I was entitled to pursue a work injury damages claim. At no stage was I advised that I was entitled to refer my matter to Mediation, and in the event that either the Defendant declined to participate in Mediation, or that the Mediation was unsuccessful, to commence proceedings in the District Court of New South Wales claiming damages. Simply, no such advice was ever given to me. I was led to believe that I had no such entitlement having been told that a claim for negligence did not apply to me." 11The plaintiff was told in late 2007 or early 2008 that she had no further entitlements of any kind (plaintiff's affidavit, paragraph 42): "At some stage shortly thereafter I contacted Allianz to speak to my then claims manager concerning my future rights in light of Dr Owler's advice about a spinal fusion. Allianz advised me that as I had resolved my lump sum impairment claim that there were no further entitlements available to me. I was also advised by Allianz at that time that, as I had left my employment with Masterpet, I did not have any entitlement, either past or future, to weekly payments of compensation from the date those payments ceased on 17 June 2006." 12However, she received different advice from Allianz in late 2008 or early 2009 (plaintiff's affidavit, paragraph 45): "In approximately late 2008 or early 2009 I was contacted by a new claims manager at Allianz who advised me that they had taken over conduct of my claim and wanted to know what my current position was concerning treatment. I explained the previous conversation that I had and that I had been advised that I didn't have any further entitlements. I advised this claims manager that I was in fact funding all of my own medical expenses, including pharmaceutical expenses. The new claims manager told me that the advice I received from the previous claims manager was incorrect and explained to me that in fact my workers compensation rights remained open for all time." 13On 24 May 2009, having seen an advertisement for Firths The Compensation Lawyers on television, she sent an email to them asking for advice. On 25 May 2009 she received a telephone call from Mr Stephen Firth, who advised that she may have a claim for additional lump sum compensation for deterioration and "possibly an entitlement to a final lump sum settlement for work injury damages" (plaintiff's affidavit, paragraph 49). The plaintiff states that this was the very first time she was advised that she would be able to make such a claim. 14There was further correspondence between the insurer and the plaintiff's solicitors. The advice the plaintiff received was as follows (plaintiff's affidavit, paragraphs 58-59): "During the conference with Mr Griffith on 14 July 2009 I was advised by him that as I hadn't received any weekly payments since 2006 that I should, as a starting point, bring a claim to have my weekly payments of compensation reinstated before bringing a claim for work injury damages.Mr Griffith advised me that as I was not receiving any weekly payments that there was little or no prospect of resolving any work injury damages claim at any subsequent Mediation with the insurer. Mr Griffith advised me at that time that if by order or agreement my weekly payments were in fact reinstated, that there was a very good likelihood that the insurer would be interested in resolving my matter on a once and for all basis, given that in the absence of any full and final settlement, I was entitled to continue to receive weekly payments of compensation potentially to age 67 and medical expenses for life. Mr Griffith informed me that if a work injury damages claim was pursued concurrently with an application to reinstate my weekly payments, that in all probability, the insurer would defend the claim for weekly payments much more vigorously. I accepted that advice and instructed Mr Griffith to therefore proceed to have my weekly payments reinstated. Mr Griffith also advised me that a work injury damages claim should have been brought within three years of my accident. This is the very first time that I learned that my previous solicitors had therefore allowed my matter to become statute barred without ever providing to me any advice in respect of those entitlement." 15After the weekly payments issue was resolved, the plaintiff commenced and brought promptly the common law proceedings. She states at paragraphs 94 and 95 of her affidavit: "I am instructed by my solicitor and verily believe that once my workers compensation claim had resolved, extensive preparations commenced with respect to my work injury damages matter.I am informed by my solicitor and verily believe that in accordance with Section 282 of the Works Compensation Act my solicitors provided particulars to my employer, insurer and Hicksons Lawyers of an intention to bring a claim for work injury damages under cover of letters dated 24 October 2011. " 16The plaintiff was challenged in cross-examination about the advice she received from each of the three firms of lawyers she had consulted. She was an impressive witness who answered frankly and without embellishment. She said she had no idea what "common law" was, and that she believed she was only entitled to workers compensation benefits because that was what she was told not only by the lawyers she consulted, but by the insurance company. As the correspondence shows, this is in fact the advice she received. She understood there was a procedure for claiming additional sums, but was told that she was not eligible. She was a witness whose answers were consistent with the contemporaneous evidence.

The issues identified by the parties 17I formally note the concession of the defendant that the relevant period at which time stopped running is 11 September 2011, the date for commencement of pre-trial proceedings under the Act. 18The defendant submits that the delay for which the plaintiff must provide an explanation is not simply the delay following expiry of the three year period following her injury, but her failure to act after the expiry of the three years from the date of the medical assessment of 17% (namely 24 November 2006), this assessment being the trigger which caused the limitation period to run (Opoku, supra). The defendant submits that not only did the plaintiff receive legal advice during this period, but that the limitation period, if construed in the same manner as adopted by Adamson J in Opoku, supra, was still on foot when the plaintiff consulted Mr Firth in May 2007. This meant there had to be an explanation for not commencing proceedings prior to the three-year period from the 17% assessment date, namely 24 November 2009. 19Although both the plaintiff and defendant urge me to follow the approach taken by Adamson J in Opoku, supra, other judges in this court have not done so, although acknowledging the persuasive nature of the reasoning that time should run from the date of the medical assessment. 20I shall first set out the general principles and legislation.

The legislative framework 21The limitation period with which the plaintiff has not complied is to be found in s 151D of the Act which 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. (3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies." 22The NSW Court of Appeal explains how s 151D is to be interpreted in Strasburger Enterprises Pty Ltd t/as Quix Food Stores v Sarina, supra,at [52] - [53]: "[52] With respect to this and similar provisions, which contain no express indication of the matters to be considered in relation to an application to extend time, "the limits of the discretion are to be found in the subject matter, and the scope and purpose, of the statute": Salido v Nominal Defendant (1993) 32 NSWLR 524 at 530F (Gleeson CJ); see also 535-9 (Kirby P) and 541 (Powell JA). Subsequently, the High Court provided guidance as to the correct approach in Brisbane South Regional Health Authority v Taylor 186 CLR 541 ; [1996] HCA 25, although the majority judgments did not speak in identical language and were concerned with a limitation provision which provided some guidance as to factors to be taken into account. As explained in The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 at [96] by McColl JA: Brisbane South is authority for the proposition 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 ... 'Significant prejudice' means such prejudice as would make the chances of a fair trial unlikely ... For a trial to be fair, it need not be perfect or ideal ... [53] In relation to s 151D(2), the relevant principles were discussed in Itek Graphix Pty Ltd v Elliott 54 NSWLR 207 ; [2002] NSWCA 104, by Ipp AJA with whom Spigelman CJ and Sheller JA agreed. Sheller JA, after referring to the fact that actual significant prejudice might compel a refusal by the court to extend time, added that "it is not correct to conclude that the absence of such prejudice compels an exercise of discretion in favour of the plaintiff": at [3]. Itek itself was concerned with a particular additional consideration, namely that the prospective plaintiff had quite deliberately decided, on an informed basis, not to proceed within the specified period." 23The first issue I should determine is the date of the limitation period. Counsel for the defendant submits that there are two periods in question: (a)The delay up to and after the three year period following the date of injury on 29 March 2004; and, (b)Delay following being advised of her common law rights by Mr Firth in or about May to July 2009. 24This brings me to a consideration of the limitation arguments in this matter.

When does the limitation period commence to run? 25Counsel for both parties agree that the limitation period commences to run, not from the date of the injury, but from the date of the finding, in a valid medical certificate, that the plaintiff's injuries exceed the threshold 15%. 26In Opoku, supra, the plaintiff, who was born in Ghana, suffered an injury on 1 May 2004 while working as a cleaner in a meat processing factory. He suffered a broken finger and his employment was terminated on 16 September 2004. Contrary to expectations that he would soon recover and be able to return to at least some form of work, his condition severely worsened and, in October 2008, a finding was made that he had suffered a permanent impairment of an amount in excess of the threshold. There were additional problems where, by reason of the complex structure of the corporations conducting the business, the plaintiff did not know who his employer was until 2007. Adamson J held at [62]-[63]: "By reason of s 151H of the Workers Compensation Act 1987, the plaintiff could not bring a claim for damages in negligence against his employer unless and until he had met the threshold requirement that he suffer a permanent impairment of at least 15%, which was a matter that needed to be assessed. This assessment was not resolved until October 2008 (by a Complying Agreement under s 66A of the Workers Compensation Act which, curiously, identifies the plaintiff's employer as "Primo Smallgoods"). Accordingly, the cause of action against the plaintiff's employer did not accrue until that date. The plaintiff's claim against Kaybron 6 was brought within time because it was brought within three years of the assessment of his permanent impairment, being the date on which his cause of action against Kaybron 6 accrued." 27This approach conflicts with many years of settled law in the NSW Court of Appeal. Adamson J does not refer to the many decisions which have held that the three year period dates from injury, not a finding of permanent impairment sufficient to bring a claim. Since the doctrine of precedent and priniple of stare decisis operate to ensure certainty in the common law system (N M Garoupa & C G Ligüerre, "The Syndrome of the Efficiency of Common Law", Boston University International Law Journal, Vol. 29, No. 2, 2011) this effectively means that I cannot follow Adamson J's reasoning in Opoku, supra, compelling though this approach may be. 28I shall first set out the series of Court of Appeal decisions as to when the period of limitations runs. In Itek Graphix Pty Ltd v Elliott, supra, Ipp JA set out that the plaintiff's accident occurred on 24 October 1994 and that "[a]s mentioned, the three year period in terms of s 151D(2) of the Workers Compensation Act expired on 24 October 1997" (at [32]). Prior to that date, in consultation with her lawyers, she gave instructions to allow the three year period to expire. 29This has been the approach ever since, even though features of many applications to extend time have included the unexpected worsening of a condition, failure of the injury to stabilise, failure of the injury to materialise until long after the injury (for example, psychiatric injury to a police officer seriously injured in a shooting: State of New South Wales v Donnelley, supra), or where the medical assessment had not yet even been made. In Scaltrito v NRMA Insurance Ltd, supra, the worker suffered an injury on 30 July 1995. Young A-CJ stated the limitation period was as follows: "[4] The appellant first consulted a solicitor on 4 September 1997 for advice about his rights generally. However, he did not commence proceedings before 30 July 1998 being the date three years from the accident which, by virtue of s151D of the Workers Compensation Act 1987, was the last day for taking action without leave of the Court." 30It is evident from the decision of Grove A-JA that no assessment of the plaintiff had been attempted; the submission was that he would not pass the threshold (at [40] - [42]. Grove A-JA did not, however, join in Young ACJ's finding that as a result, the proceedings should be regarded as a futility. 31In some instances, if the limitation period had been taken from the assessment rather than the injury, the claim would not have been out of time at all. In Strasburger Enterprises Pty Ltd t/as Quix Food Stores v Sarina, supra, the plaintiff suffered injuries following robberies in May and July 2009. She sought legal advice in May 2004 after her compensation payments stopped. Her solicitors took steps to obtain a report to determine whether her injuries exceeded the 15% threshhold. The time at which the limitation period commenced to run is stated by Basten JA at [3] to be as follows: "[3] The Workers Compensation Act imposes a limitation period of three years with respect to a claim for work injury damages, the period running from "the date on which the injury was received": s 151D(2). If the injury was received on the date of the second incident, the three year period would have expired on 1 July 2002. The plaintiff required leave to commence proceedings in the District Court out of time. This she sought by notice of motion served on 21 March 2006. After a number of adjournments, the motion was heard by Hughes DCJ, who delivered judgment granting the plaintiff leave on 28 August 2007." 32The plaintiff obtained a 25% assessment on 30 January 2005 (at [14]). A second certificate, for 15%, was obtained on 21 September 2005. There was an appeal in relation to the validity of this certificate, in the course of which Basten JA went on to note: "[13] The Workers Compensation Act provides that no damages may be awarded unless the injury results in a degree of permanent impairment of the injured worker that is at least 15%: s 151H(1). As the note to the section indicates, the procedure for assessing the degree of permanent impairment is prescribed by s 322 of the Workplace Injury Act: see also s 151H(4). However some procedural requirements are also to be found in s 151H(2) and (3), to which reference will be made shortly. The holding of a valid medical assessment certificate is not necessarily a precondition to commencement of work injury damages proceedings, but in the case of a medical dispute, absent a certificate other preconditions to the commencement of proceedings cannot be satisfied: Workplace Injury Act, s 313. Accordingly, if the certificate were invalid it was arguable that the relevant preconditions had not yet been satisfied. Further, the validity of the certificate was relevant for the plaintiff to demonstrate an arguable case that damages were recoverable in order to obtain an extension of time." 33Basten JA did not take into account, in relation to the time when the limitation period commenced to run, that commencement of proceedings could not be satisfied without a valid medical assessment certificate. Indeed, the limitation period would, on the Court of Appeal's approach, have expired before any attempt had been made to determine whether the plaintiff's injuries exceeded the 15% threshold. As the certificates were the subject of challenge in the NSW Court of Appeal, the date at which the limitation period commenced to run may not have been the date of these certificates but the date of the Court of Appeal's dismissal of the appeal (18 December 2008). If the approach taken by Adamson J had been adopted by the NSW Court of Appeal, the limitation period had not expired at all, and may not even have commenced to run. (I also note that failure to file a response to the pre-filing statement was another, and unsuccessful, ground of appeal). 34Similarly, in Ryan v Forstaff Engineering Personnel Pty Ltd, supra, the case which both counsel urged upon me to follow in terms of the approach to take in relation to such applications, Barr AJ dated the three year period from the date of injury (30 September 2006), and not the date of assessment (26 July 2010). Indeed, if the three year period had followed the date of assessment, that period still had two years to run at the time when Barr AJ was hearing the application and handing down judgment. 35The reason for setting out these extracts from the many decisions on this issue is to rebut the defendant's contention that Mr Firth, when giving advice in mid-2009, could have foreseen the decision of Adamson J in Opoku and should have known that, one day, it would be the way that the law was interpreted. He could not have held such an opinion when the NSW Court of Appeal has repeatedly stated to the contrary. Even if he had believed that this approach was correct, he would have been obliged to interpret the law in the manner explained by the NSW Court of Appeal.

Decisions in the District Court of New South Wales 36This brings me to a consideration of how to resolve these conflicting decisions in the District Court. In response to an inquiry from me as to how other judges had determined the relevant date, and whether Opoku had been referred to, Mr Flett provided the citations of three decisions of the District Court of New South Wales: Blanche v North Parkes Limited [2008] NSWDC 175; Service v MacDougall [2011] NSWDC 66; Saric v Holdmark (Aust) Pty Limited & Ors [2011] NSWDC 82. However, all were handed down prior to Adamson J's decision in Opoku. 37There are two recent decisions by other judges in this Court where Opoku has not been followed. 38The first of these is a judgment of Sorby DCJ in the matter of Braserio v Zodhope Pty Ltd (District Court of NSW, Sorby DCJ, 28 March 2013), where Sorby DCJ declined to follow this decision, holding: "[7] Mr Daley for the Applicant in submissions sought at first to rely on a Supreme Court of New South Wales authority Opoku v P & M Quality Smallgoods P/L & others Opoku v Kaybron No 6 P/L [2012] NSWSC 478 per Adamson J. In her judgment, her Honour said at paragraph 62 to 63: "By reason of s 151H of the Workers Compensation Act 1987, the Plaintiff could not bring a claim for damages in negligence against his employer unless and until he had met the threshold requirement that he suffer a permanent impairment of at least 15%, which was a matter that needed to be assessed. This assessment was not resolved until October 2008 (by a Complying Agreement under s 66A of the Workers Compensation Act which, curiously, identifies the plaintiffs employer as "Primo Smallgoods"). Accordingly, the cause of action against the plaintiff employer did not accrue until that date. The plaintiff's claim against Kaybron 6 was brought within time because it was brought within three years of the assessment of his permanent impairment, being the date on which his cause of action against Kaybron 6 accrued." [8] Section 151H of the Act relevantly states: (1) No damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%. [9] With respect this section refers to the payment of damages and the threshold that a Plaintiff must meet before damages can be paid. It would appear that her Honour was not referred to s 151D which is relevantly concerned with the time for bringing a claim." 39The second is Afarin v Excelior Pty Ltd [2013] NSWDC 65. Taylor SC DCJ determined the relevant principles on the basis of Itek Graphix Pty Ltd v Elliott, supra, holding that the limitation period had expired in 2008 (at [20]); the determination that the plaintiff's injuries exceeded 15% was not made until November 2010 (at [21]). If Taylor SC DCJ had determined the limitation period in accordance with Opoku, supra, no application for leave would have been necessary, as three years would not yet have elapsed. However, the parties clearly did not refer to Opoku, supra, in their submissions at all. 40If, by following the test set out in Itek, I had reached a different position to that which would have resulted from following Opoku, it would have been necessary to recall the parties for further submissions. Fortunately, the facts in this case clearly point to the granting of leave on the Itek test. Rather than call the parties back to ask for submissions about this apparent conflict, in the approach to s 151D in this court, I propose to make findings both in accordance with the interpretation of Adamson J in Opoku, supra, and in accordance with the principles set out in Itek Graphix Pty Ltd v Elliott, supra. What I have effectively done in this regard is to adopt the approach of Sorby DCJ and Taylor SC DCJ in determining the relevant date, and to regard the approach taken by the Court of Appeal as being correct, even though I am of the view that Adamson J's approach may be the preferable interpretation of s 151D. I am bound to take this course, not only by reasons of stare decisis, but by reasons of judicial comity. 41I should indicate, however, that I am in the same position as Mr Firth (see [35] above), namely that the New South Wales Court of Appeal's interpretation of s 151D is binding upon me and must be followed.

The relevant factors 42This brings me to the other matters relevant to the exercise of my discretion, and I note in this regard the checklist set out by Barr AJ in Ryan v Forstaff Engineering Personnel Pty Ltd, supra, at [31] - [46]. 43No suggestion is made by the defendant that it has suffered actual prejudice on account of the delay: Ryan v Forstaff Engineering Personnel Pty Ltd, supra, at [36(f)]. 44In considering prejudice, even forensic prejudice, it is appropriate to take into account circumstances of the kind referred to by Bryson JA in BHP Steel (AIS) Pty Ltd v Necati Dum, supra, at [16] : "It was conceded before Goldring DCJ, as his Honour's reasons record, that there was no such prejudice. But the circumstances go a little beyond the concession, as on the facts there does not appear to have been any prospect whatever that liability could ever have been debated. There was no question of deterioration of the defendant's position at the trial of any such issue through the effluxion of time. On the other hand, according to the plaintiff's case, with time further particulars of his injury and disability emerged; and I see this as working to the advantage overall of the conduct of the trial of the proceedings on a fair basis." 45That is very much the case here. The plaintiff was working in a pet shop where a cockroach infestation in animal food bins could amount to evidence of the kind referred to by Bryson JA. The same prompt notice to the employer which Barr A-J noted had occurred in Ryan v Forstaff Engineering Personnel Pty Ltd, supra, (at [32(b)]) has occurred here. 46While the plaintiff's claim dates back to 2004, her injury worsened over a period of time, and it has only been in recent times that her injuries and requirements for treatment have stabilised. She has been in receipt of workers compensation payments and has regularly been medically examined during the period of time that she underwent three operations. As Sorby DCJ notes in [11] of his Honour's judgment in Braserio v Zodhope Pty Ltd, supra, the significance of workers compensation payments and the considerable treatment expenses paid by the insurer is such that there would not have been paid or met unless there had been an investigation into, and a belief formed, in relation to the causal connection between the plaintiff's work and the respondent's injury. 47Mr Flett put to me that there was a heavy onus on the plaintiff, that too much time had elapsed, that there was insufficient evidence and that the plaintiff's explanation of not receiving proper advice was not plausible. He also put to me that the plaintiff had failed to explain the whole of the period of delay, in that Mr Firth should have commenced proceedings prior to November 2009, as he would then have been within time under the principles in Opoku. 48I do not accept these submissions. As to insufficient evidence, this is a particularly clear case where the plaintiff's injury was promptly reported, where the circumstances of her accident make liability issues straightforward. The unusual nature of her accident was such that it would not be apparent to a layperson that negligence on the part of the employer was responsible. The plaintiff struggled to return to work before her injuries simply became too much for her. I also note that she developed a very severe reaction to her change in circumstances, and that this is the subject of extensive psychiatric/psychological report. She would have been particularly vulnerable in terms of accepting the advice of solicitors at its face value. 49The appropriate test is set out in Itek Graphix Pty Ltd v Elliott, supra, at [87] as follows: "[87] In my opinion, in limitation legislation such as s 151D(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). 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 referred." 50The defendant has been aware, since the day of the accident, of the circumstances of the plaintiff's injury and the causal relationship of her injuries and disabilities and her workplace duty. The plaintiff did her best to find out what her legal entitlements were. This was not a case of faulty equipment or some obvious case of negligence in lay terms. She accepted the advice of the lawyers she saw, and as a result the limitation period expired while the plaintiff believed that a claim of this nature was not open to her. She learned of the statute bar in July 2009, and the contention of the defendant that she could have foreseen Opoku and commenced proceedings then is implausible. The explanation for the delay by Mr Firth was the need to determine whether there was sufficient basis for bringing the claim out of time, as well as determining whether there were sufficient grounds for the common law claim. 51Taking all of the circumstances into account, it is "fair and just" (Itek Graphix Pty Ltd v Elliott, supra, at [87]) that I should make order 1 in the Notice of Motion. 52I shall reserve the issue of costs, with liberty to apply. Given the factual circumstances of this case, it would have been preferable if this application had been reserved to the hearing, as happened in Opoku. It may be that the question of the costs of this application should be dealt with by the trial judge.

The appropriate findings based on the decision of Adamson J 53If I were to take the approach favoured by Adamson J in Opoku, supra, the period of delay would be considerably less. The expiry of three years from the date of the plaintiff's medical assessment is 24 November 2009. As indicated above, I regard it as an exercise in futility to imagine Mr Firth considering, in November 2009, that contrary to the statements of the Court of Appeal in Itek Graphix Pty Ltd v Elliott, supra, and the other judgments set out above, the limitation period was about to expire in November 2009. It would not be fair or just to penalise the plaintiff in those circumstances. Accordingly, leave to commence proceedings would still be granted.

Concluding remarks 54The apparent conflict in authority between Opoku, supra, and the decisions of the New South Wales Court of Appeal summarised above should be drawn to the attention of other judges in this court. I propose to place a copy of this decision onto the District Court Caselaw website.

Orders (1)An order "nunc pro tunc" for leave for the plaintiff under s 151D of the Workers Compensation Act for the plaintiff to bring her claim for work injury damages outside the three (3) year limitation period. (2)Costs reserved, with liberty to apply.

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: 27 May 2013

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