Before the court is a notice of motion by the plaintiff in these proceedings, who I will hereafter refer to as "the applicant", seeking by its terms to be granted an extension of time in which to commence proceedings which were in fact commenced by the filing of a statement of claim on 24 June 2019. Without being pedantic more precisely the applicant seeks leave pursuant to section 151D of the Workers Compensation Act ("WCA") to commence proceedings more than 3 years after the date the injury was received. No leave is required if the proceedings are commenced within the three years.
In support of the motion the applicant relies upon an affidavit affirmed by him on 26 September 2019 as well as an affidavit affirmed by his solicitor Wesley Ranson on 27 September 2019.
Both parties provided helpful chronologies. There is no real dispute as to the facts of this matter so far as they pertain to the motion before the court. Nor is there any serious dispute (subject to determining a question as to the meaning of the term "prejudice") as to the three propositions that need to be established to obtain leave, the onus of which is upon the applicant. Those three propositions as stated by Basten JA in Gower v State of NSW [2018] NSWCA 132 at [4] are: a) as to whether there has been an adequate explanation as to why the claim was not brought within the three years; b) that the applicant has a reasonably arguable basis for a negligence claim and c) the conduct of a trial more than 7 years after the injury was suffered would not cause the defendant significant prejudice, so as to render the trial unfair.
Mr Stockley who appeared for the defendant and respondent to the motion (which I will for convenience refer to as the defendant) very fairly stated the position of his client and made significant concessions. There was no challenge to the second proposition, which recognised the expert report that had been served going to this issue. It was also conceded in respect of the third proposition that the passing of time had not caused any actual prejudice so as to render the conduct of any trial unfair in an evidentiary or procedural way; that is in a way as to render any trial unfair to the defendant. Nor was any argument made to suggest the presumed prejudice had such a result. There is a further aspect to this third proposition that will be addressed below. As to the first proposition, the need for the applicant to provide an acceptable explanation of delay, the defendant did not accept the applicant had acted entirely in a way that showed the applicant in a good light and went so far as to suggest there was no real explanation as to why the applicant having lodged a notification of injury form on 6 August 2012 in relation to this very injury took no other steps until June 2017 when he consulted his current solicitors, not having previously consulted any solicitors. Without intending to misinterpret Mr Stockley, it is fair to say that the explanation of delay point was not strongly pressed.
RICKY PON KEUNG LAW v EUROCARS [2019] NSWDC 665 | Case summary | Zoe
In my view Mr Stockley was right in taking the approach that he did; the affidavit of the applicant in my view gives an explanation that is sufficient and acceptable as to that five-year period. To justify that conclusion some background facts are necessary.
The applicant was born on 25 May 1952 in Hong Kong and attended university in Taiwan. He graduated in 1973 with a mechanical engineering degree. He moved to Australia in 1993. In 1996 he went to TAFE to study English and improve his language skills. Despite his Bachelor degree in mechanical engineering the work he carried out from 1998 to 2004 was heavy physical work. He then obtained an engineering job in 2004 and kept that till 2009. In January 2011 he started work with the defendant. This work required him to wash and vacuum between 50 to 60 motor vehicles per day and then move heavy items such as tyres during overtime which he did on a regular daily basis. About six months after starting this job he complained to the service manager that he was experiencing pain in his arms and back and he needed assistance or a reduced workload. This did not happen. In July 2012 he obtained a medical certificate for time off work due to neck, low back, arm and knee pain. Further complaints led to the applicant being told to not complain; in a telephone call with the service manager the applicant was told if he could not do the job he should quit. In a document at pages 34 and 35 of the affidavit of Mr Ranson the date of which creation is not recorded but which refers to an injury on 6 August 2012 the applicant made an initial notification of injury which is the first step in making a claim of the type leave is now being sought to make. There was no cross examination of the applicant and the precise time of the phone call just referred to (see paragraph 23 of the affidavit of the applicant) is not known. What remains unclear is whether there is any connection between that phone call and the initial notification of injury. Ultimately in my view this does not need to be resolved because at about the time of that initial notification the uncontested evidence on this application is the applicant felt very bad by what had been said to him by the service manager and the applicant says he tried not to complain anymore because he did not want to lose his job.
In the middle of 2013 the applicant says his condition was unbearable so he took two weeks off to recover. It was when he returned to work that his employment was terminated. The applicant then proceeded to try and look for work. On his first work trial at a similar type of job his injuries made it difficult to carry out his duties and he was not offered the role. The applicant was told this was because he was not fast enough and his English was poor. The applicant says he applied for nearly a dozen more jobs and had 4 interviews but with the same result as the first trial. In 2014 he applied for and obtained a disability support pension.
In 2016 he made an enquiry about accessing his superannuation and consequently learnt from a Legal Aid Office solicitor that he may have a workers compensation claim. Armed with this information the applicant who was aware the workers compensation insurer of the defendant was QBE, contacted QBE and was emailed a workers compensation claim form which he filled out and submitted. He received a response in April 2017 from QBE rejecting his claim and that was when he decided he should obtain legal advice. He consulted his current solicitors thereafter in June 2017.
Following this a medical examination occurred with Dr Beer and a lump sum claim was served on QBE with Dr Beer's report in support, asserting 16% of the whole person impairment. QBE denied liability shortly thereafter. The applicant then by his solicitor lodged an application to resolve dispute ("ARD") in October 2017. A conciliation/arbitration was conducted by the Workers Compensation Commission in February 2018 though the ARD was discontinued by the plaintiff on the same date with the plaintiff then in April 2018 having a further medico-legal examination by Dr Beer. There was also an examination by Dr Greenberg. A further lump sum claim was made on 1 May 2018 asserting a 23% whole person impairment. In June 2018 the applicant attended two medico-legal examinations at the request of the insurer and a further ARD was lodged and a conciliation/arbitration conducted. An AMS assessment occurred in October 2018 resulting a 14% whole person impairment but which was corrected on 17 December 2018 to be 15% whole person impairment. By reason of the provisions of section 151H of the Workers Compensation Act the 15% figure entitles a person to common-law damages. In other words whilst the applicant was entitled to bring a claim prior to obtaining the 15% assessment on 17 December 2018 that claim would remain a claim incapable of obtaining damages until that assessment had been given. There then followed further procedural compliance with the workers compensation regime including the pre-filing statement and the pre-filing defence in April and May 2019 and then finally the filing of the statement of claim on 24 June 2019. The defence pleaded section 151D and hence this motion.
The applicant maintains that the above shows an adequate explanation as to why the claim was not brought within three years. Firstly to determine what that three-year period is it needs to be determined when the injury was received. Despite the submission made on behalf of the applicant that it could be upon the termination of the employment my view is that the plaintiff's own evidence is that it is 6 August 2012; this is the date stated in the notification of injury form.
Based on the above summary of the evidence as to the events of the period between 6 August 2012 to 5 August 2015 and thereafter the following facts are established:
1. the applicant's grasp of English was not of a high standard. I base this finding on the fact that he was told in 2013 by more than one employer that his English was not good enough, coupled together with the fact that he went to TAFE to improve his language skills in 1996 having been in Australia by that time for three years. Whilst that fact would hopefully mean the applicant's English improved, it does not mean it was improved to any particular standard, and the fact of attending such a course shows the difficulties with English existed. The applicant has a history of poor English and that evidence is not challenged.
2. the applicant says he "felt very bad" when he was told by the service manager to quit if he could not do the job and so felt constrained in making any further complaint, (his evidence is he tried not to complain) a position justified when the consequence of taking time off led to him being terminated.
3. Whilst by this time the notification form had been lodged there is no evidence to suggest that lodging that form was recognised by the applicant as being the start of a process which he would need to diligently attend to. The focus of the applicant was to look for and to find work, that is to return to the workforce rather than to remain out of it, an objective that would be the preferred course of all concerned in these proceedings.
4. Paragraph 31 of the applicant's affidavit states simply that the workers compensation insurer did nothing to help the applicant find alternate work. This suggests the applicant understood that the function of the workers compensation insurer was to do that and inferentially suggests ignorance on the part of the applicant of any requirement of him to be taking other steps in connection with the workers compensation insurer, and including in connection with any possible claim.
The conclusion I come to is that this applicant has at all times acted reasonably. In short I accept the submission made on his behalf that he was seeking to find work and whilst he plainly knew of the existence of the insurer the inference I draw from his affidavit at paragraphs [33] through to [36] is that until he had the meeting at the legal aid office he was unaware of his entitlement to make a workers compensation claim. Without suggesting that the applicant took special notice of the 2012 initial notification form it perhaps is noteworthy that form is headed "initial notification of injury" and not "initial notification of claim", though in all the circumstances of this case I would not place great weight on the words of the form in any event. That the applicant states at paragraph 36 that the legal aid office solicitor suggested he may have a claim suggests that prior to that point the applicant was unaware of that.
These facts show that there is scope for the insurer to criticise the explanation but as noted above it is not the main point taken. My conclusion is that this is a sufficient and acceptable explanation for not having commenced the claim within the three year period, and indeed to have not filed his statement of claim until 24 June 2019, for the reasons just stated. For completeness I would add that the affidavit of the applicant's solicitor sets out the details of his involvement since June 2017. Thus the applicant sought advice soon after his claim was rejected by QBE, and not long after becoming aware he may have a claim. Since the involvement of the applicant's solicitor, there is no suggestion of a lack of diligence, and as noted above, without receiving an AMS assessment of 15% there is no point to filing a claim other than to end the period of delay. Whilst there may be an argument that is a prudent course, in my view where there is ongoing correspondence and other dealings between the insurer and the applicant's solicitor totally in line as if a claim has been made, the resultant delay in the commencement of the claim is sufficiently and acceptably explained.
In terms of prejudice there is no submission on behalf of the defendant that there is any prejudice suffered by the defendant by reason of the death of a witness or the destruction of a document or that the passing of time has somehow impeded their ability to have a fair trial. Indeed the chronology of events shows that there is now a fairly comprehensive series of medical examinations including two done at the request of the insurer together with two lump-sum claims having been served, the provision of pre-filing documentation and now the filing of the claim itself. The nature and scope of the applicant's claim is not suggested to be anything but clearly understood and no prejudice of the type just described is asserted.
If the matter stopped there plainly the applicant would have satisfied the onus he bears in bringing this application. What remains however is to deal with the main point made by the defendant, which is the question referred to at [3] above.
That point turned on section 151 IA of the WCA. That section provides:
In awarding damages for future economic loss due to deprivation or impairment of earning capacity or (in the case of an award of damages under the Compensation to Relatives Act 1897) loss of expectation of financial support, the court is to disregard any earning capacity of the injured worker after pension age (as defined in the Social Security act 1991 of the Commonwealth for persons other than veterans)
The parties are agreed that the effect of this section is that a claimant such as the applicant may be awarded future economic loss but only calculated up to the pension age. Pursuant to the provisions of that section "pension age" is as defined in the Social Security Act 1991 which in the case of a man born on 25 May 1952 is 65 years. The grievance of the defendant in this case is that there is no restriction under the WCA for the awarding of past economic loss in the period between the date of trial (and therefore the date of assessment of damages) and the earlier date of having reached pension age. That is the grievance of the insurer is that by reason of this claim being brought after 25 May 2017 the applicant is now able to make a claim for economic loss in a period being the period from and after 25 May 2017 to the date of trial, which he would not have been entitled to do had he brought the claim within three years of the date of injury (assuming the trial concluded and orders made before 25 May 2017). The defendant reasonably at least in a chronological view of the world says that if the claim had been brought before 6 August 2015 the likelihood is the claim would have been resolved or determined by the court before 25 May 2017 and there would be no liability under the WCA possible for economic loss for any period past 25 May 2017.
Whilst chronologically that may be a reasonable view, as a matter of law applying the principles relating to the application of section 151D it is in my view not an available approach. The basis for this view turns on the view I take of the meaning of "prejudice". The term "prejudice" or "unfair prejudice" is a term often used in considering the admissibility of evidence and also in considering the granting of leave to bring proceedings after a certain time or the granting of an extension of time under various limitation of actions regimes. Whilst not directly on point to this application the reference to the use of that term in matters of evidence is instructive. In the evidentiary context something is unduly prejudicial for various reasons but predominantly because its result is to impede a fair hearing, normally because if the evidence was admitted it may be that the other party is unable to meet that evidence. Take for example the often encountered problem of late served evidence.
Dealing directly with the context of the current application the question is answered by reference to Gower v the State of NSW. That was a case considering section 151D. In that case ultimately the applicant plaintiff was not granted leave with a strong consideration in that case being the weakness of the plaintiff's case. That is not an issue in the present case. That the Court of Appeal considers prejudice to have the meaning I have ascribed to it is borne out by the frequent references in that case to prejudice. The term is used on 61 occasions in the judgement though, that includes references found in the headnote. With one possible exception, not one of those references adopts that term in any way inconsistent with the idea of there being able to be a fair trial. The one possible exception comes at [171] and the citation of a passage from Prince Alfred College v ADC (2016) 258 CLR 134 where it is said (in part):
"the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who by reason of the delay is unable fairly to defend itself or is otherwise prejudiced".
The exception is the reference to "otherwise prejudiced". The following sentence is "His Honour had earlier observed that in cases of long delay prejudice may exist without the parties or anyone else realising that it exists". I do not take the reference to "otherwise prejudiced" to justify some broad open-ended category of prejudice beyond the obtaining of a fair trial. In context I think it must mean that there is some aspect of the conduct of the trial as an adversarial litigation process in respect of which the party is placed at an unfair disadvantage.
In fact the use of the term "prejudice" in Gower is repeatedly accompanied by reference to matters such as missing witnesses and documents. With respect to the defendant's submissions prejudice in this context is described as actual prejudice or presumed prejudice. The presumed prejudice is a prejudice recognising that the passing of time makes matters likely to be more difficult to investigate and defend. An example of actual prejudice is where there actually is an important witness who is either dead or otherwise unavailable.
It may assist to give some examples of the references from Gower. At [58] of Gower in the judgment of Basten JA, the reference to prejudice was in these terms "if the delay resulted in significant prejudice that would make the chances of a fair trial unlikely", a statement supported by Gallagher Bassett Services NSW Pty Ltd v Murdock [2013] NSWCA 386, Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477; Commonwealth of Australia v Smith [2005] NSWCA 478 at [128]; and Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 at [96].
At [183] of Gower in the judgement of White JA is the following:
'This principle was applied in Salvation Army (South Australia Property Trust) v Rundle. McColl JA said (at [96]):
"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: Holt v Wynter [2000] NSWCA 143 ; (2000) 49 NSWLR 128 (at [119]) per Sheller JA (with whom Meagher JA, Handley JA and Brownie AJA agreed). "Significant prejudice" means such prejudice as would make the chances of a fair trial unlikely: Commonwealth of Australia v Smith [2005] NSWCA 478 (at [128]) Santow JA (Handley JA agreeing), applying South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 (per Hodgson JA, Beazley JA and Rolfe AJA agreeing). For a trial to be fair, it need not be perfect or ideal: Commonwealth of Australia v Smith (at [129])."'
With respect that passage puts paid to the defendant's argument. This conclusion is also supported by Basten JA's statement of the third proposition at [4] of Gower where it was stated "the conduct of a trial more than 12 years after the injury was suffered would not cause the State significant prejudice, so as to render the trial unfair". The answer to the argument is contained within the statement of the proposition.
Two further points should be noted. The prejudice of which the defendant complained in this application is not truly prejudice at all. If the leave is granted to the applicant the applicant is entitled to the benefit of the provisions of the legislation. The fact is that the legislation allows for the claiming of economic loss if it is past economic loss past the pension age. The argument amounts to saying that if leave is given to commence the proceedings the applicant will get the benefit of the Act. That is the whole point of seeking the leave.
Secondly the outcome sought by the defendant would achieve a very unjust result. The defendant says that because bringing the claim now would potentially allow a claim in a period that possibly would not have been made if brought earlier (and I say possibly because there is no guarantee this case would have been resolved before 25 May 2017) then the applicant should be deprived of his claim for past economic loss up until the pension age. That is, the defendant is saying because the defendant should not be at risk of a further two years of potential liability as allowed for by the Act there should in fact be no liability for any of the earlier four years which the defendant would have been potentially liable for in any event.
In the circumstances I am satisfied that the plaintiff has satisfied the onus he bears in respect of the three propositions set out above in order to obtain the grant of leave. I reject the argument as to prejudice put by the defendant for the reasons stated.
[2]
ORDERS:
1. Pursuant to s151D of the WCA leave is granted nunc pro tunc to the applicant to commence court proceedings for damages in respect of the injury concerned against the employer by way of the Statement of Claim filed on 24 June 2019.
1. The costs of the motion are to be the plaintiff's costs in the cause as assessed in accordance with Schedule 7 of the Workers Compensation Regulation 2016, subject to either party indicating upon the giving of this judgment that they wish to be heard further as to costs.
[3]
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Decision last updated: 14 November 2019