Parry v Masterpet Australia Pty Ltd

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.

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