Pearce v Integra Coal Operations Pty Ltd

Judgment 1HIS HONOUR: The interlocutory issue with which the Court must deal is the question of an extension of time. The substantive proceedings concern an allegation that the plaintiff, Mr Pearce, suffered a work injury whilst employed at an underground colliery for the defendant, Integra Coal Operations Pty Ltd (Integra). The incident occurred on 11 October 2006. A Statement of Claim was filed on 24 April 2013. It is necessary to deal with the circumstances leading up to the filing of the Statement of Claim.

Facts 2The incident which it is said gave rise to the injury is that the plaintiff injured his back, which was caused by a requirement to lift heavy steel bars attached to chains, forming part of the coalface cutting machinery. The circumstances of that lifting are irrelevant for the interlocutory purposes. The weight of the bars and chains are, it is alleged, greater than any one person could be expected to lift in safety. 3Particulars have been filed in accordance with the Uniform Civil Procedure Rules 2005, as has an expert report. The damages claimed are significant, if there were liability. 4Prior to the date of the injury, Mr Pearce suffered some problems with his back, seemingly as a result of the requirement to wear an equipment belt weighing approximately 15 kilograms. Notwithstanding that requirement and those problems, Mr Pearce carried out his functions as a fitter in the mine until the incident on 11 October 2006. 5The incident involved a twisting of the lower back while Mr Pearce was lifting very heavy metal bars. As a result of the incident, he was taken to Cessnock District Hospital, the triage notes record pain running from Mr Pearce's groin to the right knee. He was taken off normal duties and given light duties until at least January 2007. 6Mr Pearce first contacted his solicitor as to the event on the day he was injured and a claim for Workers' Compensation was lodged and liability denied. On 10 July 2007, Mr Pearce commenced proceedings in the District Court, claiming weekly payments and treatment expenses under the provisions of the Workers Compensation Act 1987 (the Act). 7The plaintiff filed an Amended Statement of Claim in May 2008 and counsel (first counsel) was briefed to advise at that time. By November 2008, Mr Pearce's condition had deteriorated and further medical advice was sought relating to the possibility of surgery to correct the injury. As a consequence of that deterioration and the possibility of further medical treatment of a significant kind, the District Court proceedings were discontinued (Affidavit of Ross Pfennigwerth, 12 November 2013 at [12]). 8On 17 February 2009, the plaintiff underwent an L4-L5 laminectomy and an L4-S1 fusion. Mr Pearce required a lengthy period of recuperation and rehabilitation. 9On 27 February 2009, Mr Pearce consulted Dr Doyle (a urologist) for complications associated with a colovesical fistula, which, were it not for the recuperation associated with his recent back operation, would ordinarily have immediate surgical review. On 7 April 2009, the first counsel wrote to Mr Pfenningwerth advising that potential damages would exceed the threshold under the Act and consideration ought to be given to common law action. The plaintiff was advised to obtain additional medical reports. 10The uncontradicted and uncontested evidence (Affidavit of Pfenningwerth, 12 November 2013 at [17]) is that a considerable amount of time was spent waiting for the injury, including the outcome of the surgery, to stabilise, in order to assess properly the level of Mr Pearce's incapacity. 11On 15 October 2009, Mr Pearce was examined by Professor Ghabrial, one of the orthopaedic surgeons who performed the original operation on 17 February 2009. Professor Ghabrial reported that the injury (or symptoms) had improved; but that Mr Pearce would never be able to return to his previous employment, nor be employed in work involving heavy lifting, excessive bending or excessive twisting. 12On 3 August 2011, the first counsel withdrew from the case, on the basis that he had been offered and had accepted a general retainer to appear and advise Integra. The brief was returned after a conversation with Mr Pfenningwerth. 13It is appropriate to remark, at this stage, that Mr Pfenningwerth is a sole practitioner, albeit with significant experience, with secretarial assistance on a less than full-time basis. As a consequence, there was a delay in briefing second counsel and, on 25 October 2011, Mr Pfenningwerth briefed a second counsel (the second counsel). Mr Pfenningwerth had spoken to the second counsel before sending a written brief and discussed the organisation of the brief, which, by that time, comprised a number of folders and, according to Mr Pfenningwerth, required a number of days to organise (Affidavit of Ross Pfenningwerth, 12 November 2013 at [34]). 14Eventually, the documents were sent to the second counsel, but that did not occur until late July 2012. 15In the meantime, the workload of the instructing solicitor continued, with the absence of available time being exacerbated by the illness to Mr Pfenningwerth's father, who was admitted to a high care unit suffering dementia and required 24-hour care and for whom Mr Pfenningwerth had the main responsibility until his father's death on 3 July 2012. 16On 9 July 2012, the preparation of the brief was commenced and was ultimately sent to the second counsel in August 2012. 17Second counsel conferred with Mr Pfenningwerth on 18 September 2012, following receipt and perusal of the brief and documents. A slightly different approach was taken to the issue of liability, compared to that of the first counsel. 18A conference was organised with Mr Pearce, which occurred on 27 September 2012 and further opinions from certain medical practitioners, being treating physicians, were requested and ultimately obtained and sent to the second counsel on 21 December 2012 (Affidavit of Ross Pfenningwerth, 12 November 2013, at [45] and reports at Annexure H and J thereof). 19Following the conference, a draft Statement of Claim was prepared by Mr Pfenningwerth, which was sent to the second counsel to settle on 28 February 2013. The settled Statement of Claim was returned on 18 April 2013 and filed on 24 April 2013.