Sihavong v Infrabuild Trading Pty Ltd

Category: Procedural rulings

Parties: Caroline Sihavong (Plaintiff)
Infrabuild Trading Pty Ltd (First Defendant)
Timothy Peter Ainsworth (Second Defendant)

Representation: Counsel:
R A Brown (Plaintiff)
L D Robison (Defendants)
Solicitors:
Slater and Gordon Lawyers (Plaintiff)
Hall & Wilcox (Defendants)

File Number(s): 2025/00169079

Publication restriction: No

JUDGMENT – EX TEMPORE

1. Before the Court is a Notice of Motion filed on 8 September 2025 by the plaintiff seeking leave to maintain proceedings already commenced, pursuant to s 151D(2) of the Workers Compensation Act 1987 (NSW) (the “Act”).

2. The background to the matter is that by Statement of Claim filed on 2 May 2025, the plaintiff seeks work injury damages under the modified common law scheme in the Act relating to alleged injuries incurred in the course of employment by the defendant. I note that in paragraph 1 of the Defence, there is an admission, but it seems incorrectly to refer to the defendant instead of the plaintiff, and that should be corrected by the defendant if the matter proceeds.

3. In the Defence filed on 3 June 2025, the defendant denies liability, and in paragraph 9 pleads that the plaintiff is out of time to pursue the claim pursuant to s 151D of the Act and is prevented from proceeding with the claim.

4. The underlying facts, as pleaded in the Statement of Claim, allege that there was negligence in providing an unsafe work environment by the defendant in relation to the plaintiff’s employment by the defendant as a supervisor in customer care. The evidence before me, which I will come to shortly, shows that the plaintiff was employed by the defendant on 4 May 2016 and ceased day‑to‑day attendance at her work on 28 September 2017, although her employment was only terminated on 8 May 2019. It is pleaded that in the course of her employment from 2016 to 2017, the plaintiff was exposed to a highly unreasonable work environment with limited support, high workload pressure, demands to continue with insufficient staff, and other allegations including of bullying and harassment.

5. These are all denied by the defendant.

6. Before the Court, were the following affidavits:

(a) For the plaintiff, the affidavits of Emma Robey (solicitor) dated 8 September 2025, and of the plaintiff, Caroline Sihavong, dated 8 September 2025; and (b) For the defendant, the affidavit of Belinda Walsh dated 30 September 2025.

7. The affidavit of Ms Robey has two exhibits which became exhibit A on the application.

8. The affidavit of Ms Walsh also annexed numerous documents.

9. The Court has been assisted by written submissions from counsel appearing for the parties, chronologies prepared by counsel and oral submissions.

10. The exhibits to Ms Robey’s affidavit, as well as containing significant correspondence (often repeated in the annexures to Ms Walsh’s affidavit), also include a number of reports, including a liability report of Ms Todd, and also medical reports by an associate professor psychiatrist, Associate Professor Robertson, a treating psychiatrist, Dr Bisht, and also the plaintiff’s treating general practitioner.

11. In relation to the liability report of Ms Todd, on the basis of the assumptions put to her, Ms Todd provides an executive summary at pp 74 to 78 of the exhibit and refers to problems alleged by the plaintiff with under‑staffing, gaps in staff and frequent complaints by the plaintiff. In paragraph 11 of the executive summary on p 75, it is indicated that the plaintiff raised her concerns with her employer about the inadequacy of staff, and despite that, no changes were made. Obviously, these are matters to be established at the trial.

12. At paragraph 33 on p 77 of the exhibit, Ms Todd expresses the opinion that, on the basis of her skills and expertise, including the management of bullying and harassment in the workplace, she is of the opinion that the plaintiff was exposed to a known and likely risk of injury in the circumstances, and that the psychological injury suffered is a significant injury. In paragraph 34 on p 77, she sets out various controls that were available to an employer. Ms Todd’s opinion is lengthy, but the matters I have referred to constitute her summary of her position.

13. There are two reports of Associate Professor Michael Robertson who is a psychiatrist in evidence. The first is dated 14 June 2019 and sets out the plaintiff’s alleged heavy workload, and the fact as indicated to the doctor, that by the time she ceased employment, she experienced panic attacks and various symptoms, including significant phobic avoidant behaviour. It is noted that she had been referred for psychological treatment, but was reluctant to attend sessions as it required her leaving home (exhibit p 147), and that at the time she could not leave the house without a support person, even to go to the mailbox (p 147 of the exhibit).

14. At p 149, the assessment of Dr Robertson was that the plaintiff presents with chronic psychopathological disturbance, characterised by panic attacks, dysphoria, generalised anxiety symptoms and debilitating phobic anxiety. At p 150 of the exhibit, there is a comment on causation which is not particularly strong (I accept Mr Robison’s submission on that), but seems to be suggesting that although there were other stressors in her life, that she was well before commencing with the defendant.

15. In addition, there is a 1 September 2022 report from Associate Professor Robertson. In that report (p 160 of the exhibit), Dr Robertson refers to his previous report and states (p 165 of the exhibit) that having re‑examined the plaintiff, he was prompted to revise his diagnosis to a current major depressive disorder and indicates that he is more convinced that the underlying clinical presentation is panic disorder with agoraphobia. He notes the panic disorder with agoraphobia and major depressive disorder are frequently comorbid conditions.

16. At p 171 of the exhibit in paragraph 17 of the opinion, he provides a clearer view as to causation and states that in his opinion the psychological injury was precipitated by the nature and conditions of the plaintiff’s employment, as outlined in his original report, specifically the experience of bullying behaviour as reported to him.

17. There are also in evidence a number of older reports from a treating psychiatrist, Dr Bisht, as mentioned above.

18. There is also a report from the plaintiff’s general practitioner, Dr Egan, who found anxiety and depression worsening over the previous two years on a number of assessments.

19. I give greater weight, obviously, to the psychiatrists’ reports although I note that the report of the general practitioner is more recent.

20. Obviously, the assumptions in the reports would need to be accepted substantially. The report of Dr Robertson was prepared following examinations of the plaintiff.

21. If the assumptions are substantially established, then there is evidence through the expert opinion of Ms Todd indicating an unsafe system of work, and also medical opinion establishing evidence of psychiatric conditions, and a linkage to the plaintiff’s work for the defendant.

22. Obviously, all these matters will need to be tested in any final hearing, if that occurs.

23. In addition, the plaintiff in her affidavit gives detailed evidence in relation to her employment and stresses and complaints by her made in the course of her employment.

24. I have referred to the submissions which have been provided to me on behalf of the parties. In summary, it is submitted on behalf of the plaintiff as follows:

(a) The plaintiff accepts that the limitation period should be assessed from the commencement of the plaintiff’s employment with the defendant, which was 4 May 2016. Accordingly, the limitation period of three years for a personal injury claim expired on 4 May 2019; (b) The plaintiff has an arguable case in negligence against the defendant; (c) The affidavit evidence shows that the plaintiff attempted to struggle through her employment until her last day of formal attendance when she left and made a claim for workers compensation weekly benefits. The evidence as a whole shows the plaintiff continuing with her claim initially for weekly benefits, and then for work injury damages since that time; (d) The plaintiff’s affidavit shows that she left the handling of the matter primarily to her solicitors and provided instructions, where necessary; (e) The affidavit evidence of the plaintiff and her solicitor, and particularly of the solicitor, is detailed and shows activity in advancing the initial weekly payments claim, and then the work injury damages claim; (f) That although the medical evidence is a few years old, it is consistent with the plaintiff having psychiatric conditions; (g) That Ms Todd’s report provides evidence in relation to breach; (h) That there is no evidence before the Court of actual prejudice to the defendant if the extension were granted; (i) That while there is presumptive prejudice, that a fair trial may be had by the defendant; (j) That the defendant had early notice of the plaintiff’s weekly payments claim and then work injury damages claim, and being on notice, it was reasonable for the defendant, particularly as it declined early coverage for weekly benefits, to have properly investigated the matter, and that is a factor negating any substantial degree of prejudice, although of course, it is submitted that there is no evidence of actual prejudice; (k) That taking all of the matters into account, the Court should exercise its discretion in granting leave to maintain the proceedings.

25. In general summary, the submissions made on behalf of the defendant are as follows:

(a) That the injury should be taken to have occurred on 4 May 2016 with the three year period expiring on 4 May 2019. This, in essence, is not in dispute. Having regard to the proceedings commencing on 2 May 2025, one effectively has a delay of six years; (b) That no period should be allowed under s 151DA of the Act as the preferred view on the authorities is that those periods only relate to periods during the three year limitation period and not delays after the three year period. It was submitted that the view of Judge Neilson as to s.151DA in Bright v State of New South Wales [2017] NSWDC 257 at [59] should be preferred to the view which I expressed in De Roover v Northern Sydney Local Health District [2025] NSWDC 317 at [20]. I was referred to the comments of White JA in Gower v State of New South Wales [2018] NSWCA 12 at [54] which are not conclusive on the point; (c) That although the plaintiff’s case might be arguable as to breach in the light of her evidence, and the Todd liability report, it is not a strong case for breach of duty. This goes to the discretion. Reference was made to the High Court decision in Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; (d) That there are significant periods of unexplained delay in the chronology, particularly after agreement was reached in relation to the 19% whole of person impairment assessment, and the entitlement to weekly benefits before the work injury damages case was advanced and proper notice given to the insurer; (e) That although there was no evidence relied on of actual prejudice to the defendant, presumptive prejudice applied and existed, and the Court, in the light of the lengthy period after the expiry of the limitation period, and having regard to the gaps referred to, and the lack of strength in the plaintiff’s liability case would, in all the circumstances, refuse the leave sought.

26. I have attempted to summarise the submissions above, but I refer and take into account all the matters in the written submissions I have referred to.

27. Section 151D of the Act provides as follows:

“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.

(4) This section does not apply to the commencement of court proceedings in respect of a claim within the meaning of Part 5 of the Motor Accidents Act 1988, Chapter 5 of the Motor Accidents Compensation Act 1999 or Part 4 of the Motor Accident Injuries Act 2017.”

28. In relation to the argument concerning s.151DA of the Act, I have referred above to the different views on that. White JA in Gower does not express a concluded view. If the view set out by me in De Roover is accepted, about two and a half years would be taken off the six year period of delay. If the view of his Honour Judge Nielson is accepted, then it would be six years approximately since the expiry of the limitation period, although the whole period back to 4 May 2016 must be taken into account in considering the exercise of the discretion.

29. In the circumstances of this case, I do not consider that the difference of the two and a half years is likely to be decisive, and I decide the case on the basis that the view expressed by Judge Nielson should be the view adopted, while presently I do not necessarily think the view I indicated in De Roover is wrong in the absence of appellate determination.

30. One therefore turns to the proper approach to be adopted in considering the application. In Gower at paragraph 4, his Honour Justice Basten stated that to obtain leave to commence proceedings out of time, a party needed to establish three propositions:

(a) That there was a sufficient and acceptable explanation for each period of delay; (b) That the plaintiff had a reasonably arguable claim of negligence; and (c) The conduct of a trial many years after the injury was suffered, as in the present case, would not cause the defendant significant prejudice so as to render the trial unfair.

31. In relation to s.151D itself, in Howley v Principal Health Care Finance Pty Ltd [2014] NSWCA 447, McColl JA (with whom Meagher and Barrett JJA agreed) stated at [44] that s 151D(2) of the Act does not spell out specific criteria to be taken into account by the Court when exercising the discretion.

32. The matters the Court has to take into account are those set out in the cases which have considered the section. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551, McHugh J indicated that even where the applicant satisfies the matters as giving rise to an extension, that only entitles the applicant to ask the Court to exercise the discretion in his or her favour. The applicant still bears the onus of establishing that the justice of the case requires the exercise of the discretion in his or her favour.

33. In relation to the matters identified by Basten JA in Gower, these have been considered in numerous Court of Appeal cases, including Salido v Nominal Defendant (1993) 32 NSWLR 524. That case established a number of propositions:

(a) The aim of the section is to protect defendants against the injustice of stale claims and to promote forensic diligence: at 532; (b) The section contains a discretion which must be exercised in a judicial manner; (c) Extraordinary or special circumstances need not be established by the applicant: at 537; (d) The primary rule is that each case must be examined on its own facts and merits: at 537; (e) The onus of establishing an entitlement to a grant of leave is upon the applicant: at 532 and 538; (f) The fact that the defendant will suffer some forensic advantage through the extension is not of itself decisive, although it is a relevant and important consideration.

34. In Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207, Ipp AJA (with whom Spigelman CJ and Sheller JA agreed), held that the general question to be asked when considering whether to exercise the discretion in s 151D(2) of the Act in favour of an applicant, is what is just and fair in the circumstances, or alternatively, what does the justice of the case require. Ipp AJA noted that a reasonable and adequate explanation for the delay should be established: at 224 ‑ 5.

35. Consistent with the view of McHugh J in the Brisbane South Regional Health Authority case, presumptive prejudice to the defendant arises through the effluxion of the limitation period. Having regard to the general agreement between the parties as to when the limitation period expired, being 4 May 2019, it would appear that the issue which initially concerned me about the potential for the plaintiff having made a decision to withdraw the claim in the Workers Compensation Commission, and therefore allowing the limitation period to expire, was not relevant: see in particular the comment of Ipp AJA in Itek at 225. In any case, the plaintiff made clear in her affidavit in paragraph 58 that the discontinuance on 22 July 2020 was, as she was informed, because there was a need to obtain further evidentiary statements from family and friends to support the injury.

36. In relation to the question of prejudice, in Holt v Wynter (2000) 49 NSWLR 128, the Court of Appeal held that was a significant matter. However, it stated that at the end of the day, the general question is always what is fair and just and what the justice of the case requires.

37. As I indicated, there is no evidence of actual prejudice to the defendant. The issue, therefore, is can there be a fair trial on the merits and does the justice of the case require the grant of leave.

38. I have carefully considered the chronology of the evidence. I note that there is, as is usual in this type of case, an affidavit from the solicitor and from the plaintiff. In Stein v Ryden [2022] NSWCA 212 at [39] ‑ [40], the Court of Appeal emphasised that the excuse for the delay primarily to be considered was that of the plaintiff, not the solicitor. However, I accept Mr Robison’s submission that all of the explanation needed to be taken into account. In paragraphs 118 ‑ 119 of the plaintiff’s affidavit, she indicates that at all times she relied upon the advice from her solicitor and actioned requests for information and provided instructions in a timely fashion.

39. It should also be noted that the primary matter to take into account is to ensure that a fair trial is open for the defendant, and that that will be a more important factor in general terms than the explanation. As Ipp AJA noted in Itek at 225:

“I have pointed out that the justice of the case is to be determined by its own individual circumstances. Often, a failure satisfactorily to explain the delay will not be decisive. Ordinarily, the issue of prejudice will be of paramount importance.”

40. That was particularly given weight by Weber SC DCJ in Palackalody v St Vincent*’*s Hospital Sydney Ltd [2023] NSWDC 324 at [20].

41. I therefore turn to the particular circumstances of the current matter. Looking at the requirements in Gower, and taking into account the plaintiff’s evidence in her affidavit, the material in the exhibit, particularly the history of the matters relied upon by the plaintiff in support of her claim, both for weekly benefits and for whole person impairment, and taking into account Ms Todd’s opinion, in my view the plaintiff has a reasonably arguable claim of negligence against the defendant.

42. In relation to the question of delay, I have carefully looked at the plaintiff’s evidence in her affidavit, the solicitor’s affidavit, and the chronology of events. I have also taken into account the matters in Ms Walsh’s affidavit. It seems to me that the plaintiff attempted to deal with the situation that she faced, whatever ultimate factual findings are made in relation to it, whilst she was employed in her position. She appeared to continue to attempt to deal with it until her last actual day at work on 28 September 2017. I do not think that there is any issue as to delay over that period.

43. The plaintiff then made a claim which was declined by the insurer in 2018. I have looked carefully at the chronology. It seems to me that taking into account the plaintiff’s evidence that she relied on her solicitors, that there is, on the evidence, a satisfactory explanation for the delay, at least up to the period of her claim for weekly benefits. I do not see there being a significant period of unexplained delay, at least up to the latter part of 2021. Eventually in September 2021, the defendant’s insurer conceded the plaintiff’s entitlement to a lump sum benefit and also an assessment of 19% whole person impairment. On 14 September 2021, a certificate of determination was made by the Personal Injuries Commission on that basis.

44. Mr Robison, in particular, refers to the gap between that determination and February 2023 when notice of a claim for work injury damages was given. I have focused on that period. It is expected that some period of time would be needed following the determination of whole person impairment, and the determination of the s 66 claim, before the matter would proceed to a work injury damages claim. Although there is a gap of about four or five months until Slater and Gordon was retained by the plaintiff on the work injury damages claim, I do not regard, in all the circumstances, this period to be excessive. In the period from February 2022 to February 2023, the plaintiff in her evidence, and also the solicitor’s evidence, points to the plaintiff having bouts of poor mental health and experiencing issues with some of the doctors she was asked to attend.

45. It seems that in that period, there were primarily appointments made for doctors with the plaintiff struggling with her mental health. In my view, despite Mr Robison’s submissions, that period seems to me to be adequately explained. There are delays with changes of counsel for the plaintiff with small gaps, but these do not appear to me to be excessive. If one focuses on the period 2023 to 2024, opinion was obtained from counsel, the Todd liability report was obtained, and the various steps under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) were taken.

46. Having looked at the evidence as a whole, in my view the plaintiff indicating that she primarily relied on her solicitors is an acceptable explanation for someone in her position. The procedural requirements are not straightforward, and there is no suggestion to me that there was a particular lack of diligence from the plaintiff and those whom she had retained to act for her.

47. Accordingly, on the whole of the evidence, in my view there is a sufficient and acceptable explanation from the plaintiff for each period of delay.

48. As I indicated above, there is no evidence of actual prejudice to the defendant. The period of six years continuing from the expiry of the limitation period to the commencement of proceedings, if the view of Judge Nielson is accepted on s 151DA of the Act, is an extensive period, although much shorter than many other cases that come before the Court. To me, a very important factor in this case is that the defendant’s insurer had early notice of the claim and had declined coverage. Accordingly, the defendant through its insurer was on notice early as to the potential for a claim by the plaintiff, initially for weekly benefits, and therefore was on notice of the need to make whatever inquiries and steps it thought appropriate to protect its position. The fact it denied the plaintiff’s claim on a number of occasions would suggest that at least it had properly investigated the matter and was of the view, in the light of whatever inquiries it had made, that that was an appropriate decision.

49. It seems, therefore, that it is not like some cases where notice of a claim came out of the blue to a defendant a decade or even more after the events in question which created great difficulties for the defendant.

50. Accordingly, in my view, of the three requirements as set out by Basten JA in Gower, the first two have been satisfied.

51. In relation to the third requirement, that a trial six or even seven years after the date the injury was suffered would not cause the defendant significant prejudice so as to render a trial unfair, as I indicated, there is no evidence before me of actual prejudice. There is clearly presumptive prejudice having regard to the delay. The factor I take into account is particularly that the defendant has been on notice of the plaintiff alleging a psychiatric injury arising from her employment from soon after the plaintiff terminated her day‑to‑day presence at the place of employment. This matter, as the exhibits show, has been extensively canvassed by the parties, including in the Workers Compensation Commission and in the Personal Injury Commission. Having regard to all the evidence, I am satisfied that the plaintiff has established, the onus being on the plaintiff, that there could be a fair trial in the circumstances.

52. Accordingly, the plaintiff has established, in my view, the onus being on the plaintiff, the relevant factors establishing, subject to the question of the discretion, that there should be a grant of leave. As indicated by me above, there is, however, a discretion which the Court has as to whether to grant leave. Mr Robison who appears for the defendant, indicated that the matter was a bullying or intimidation case, that there would be disputed factual issues, and that the plaintiff’s case on liability, whilst arguable, did not appear on all of the evidence to be a strong one. He also referred to the extensive period of delay.

53. I take those matters into account, and I also take into account the lengthy history of the matter, and the fact the defendant was on notice. However, exercising the discretion which I have, in my view those are not factors which would prevent me granting the leave sought in all the circumstances, and accordingly, the first order I make is:

In relation to the Notice of Motion filed on 8 September 2025:

1. Pursuant to s 151(2) of the Workers Compensation Act 1987 (NSW), leave is granted to the plaintiff nunc pro tunc to commence the proceedings filed by a Statement of Claim on 2 May 2025.

[His Honour heard submissions on costs.]

54. An issue has arisen in relation to the appropriate costs order to make. Mr Brown submits that the plaintiff first had to establish an entitlement to bring the work injury damages claim, and that that occurred after the expiry of the limitation period. Therefore, bringing proceedings before that was an impossibility. Mr Robison submits that the plaintiff should have acted much faster than she did and she should have got her house in order to obtain her s 66 gateway entitlement as soon as there was a rejection by the insurer of the claim.

55. I have referred above to the decision of Judge Weber in the Palackalody case. The issue of costs arose in that case, and Mr Stanton who appeared for St Vincent’s Hospital in that case, relied on the decision of Franklin v State of New South Wales [2023] NSWSC 796 where Lonergan J adopted the remarks of Sheller JA in Holt v Wynter where his Honour observed:

“In relation to costs ordinarily a successful applicant who has allowed him or herself to get out of time should pay the costs of the application unless the respondent’s opposition was wholly unreasonable.” (at (2000) 49 NSWLR 128 at [121].

56. That has been followed in a number of decisions of the Court. However, Weber SC DCJ pointed out that each costs circumstance must depend on its own underlying facts. The factors which indicate the Court should not adopt that approach in the current case are:

(a) That the plaintiff continued in her employment on a day‑to‑day basis until September 2017 when she ceased full‑time employment, being nearly 18 months after the injury was first suffered as agreed between the parties; (b) That although there was a refusal of the claim in June 2018, the plaintiff contacted her solicitors promptly after that, and after having received full advice, sought the workers compensation file which took nearly ten months to provide, being almost to the expiry of the limitation period; (c) That the first report of Associate Professor Robertson was obtained after the agreed expiry of the limitation period which provided the basis for a claim for work injury damages; (d) That the plaintiff thereafter proceeded with the weekly benefits claim and the work injury damages claim, as I have described above.

57. I do not find that the resistance of the defendant was wholly unreasonable. There are a number of factors relied upon by Mr Robison in his helpful submissions which were properly to be taken into account. But it seems that the plaintiff, in the light of her medical condition as revealed on the medical report which I take into account, must be given some leeway in relation to the advancement of the matter, and her solicitors seemed to have been reasonably diligent in pursuing both the s 66 claim and the work injury damages claim, on Ms Robey’s affidavit.

58. The Court has a wide discretion as to costs under s 98 of the Civil Procedure Act 2005 (NSW), but that discretion must be exercised judicially.

59. The factors which I have referred to above incline me to the view that both parties should have the opportunity to obtain their costs of the Motion, depending on their success in the case as a whole.

60. For those reasons, the second order I make is the costs of the Notice of Motion are to be costs in the cause.

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