Swinfield v South Eastern Sydney Area Health Services

Moray & Agnew (Defendant) CATCHWORDS : Extension of limitation period - s 151D WCA LEGISLATION CITED : Workers Compensation Act 1987 Occupational Health and Safety Act 1983 Salido v Nominal Defendant (1993) 32 NSWLR 524 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR; 139 ALR 1 Holt v Wynter [2000] NSWCA 143; (1999-2000) 49 NSWLR 128 CASES CITED : Seib v Morton [2000] NSWCA 139, 26 June 2000 Nominal Defendant v Manning [2000] NSWCA 80 (2000) 50 NSWLR 139 Forbes v Davies [1994] Aust Torts Reports 81-279 Morrison v Judd (NSWCA, unreported 10 October 1995) DECISION : (1) Leave for the plaintiff to commence court proceedings in respect of injuries suffered as a result of an accident which occurred on 10 February 1998 is granted; (2) The plaintiff is to file and serve a statement of claim within 14 days; (3) The plaintiff or plaintiff's solicitor is to pay the defendant's costs. The plaintiff's solicitor is to show why he should not pay the costs of the summons.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

10640/2001 - CHRISTINE SWINFIELD v SOUTH EASTERN SYDNEY AREA HEALTH SERVICES t/as GARRAWARRA CENTRE JUDGMENT (Extension of limitation period - s 151D WCA)

1 MASTER: By summons filed 6 March 2001 the plaintiff seeks leave within which to commence proceedings pursuant to s 151D of the Workers Compensation Act 1987. The plaintiff relied on her affidavit sworn 6 March 2001, the affidavit of Stephen Firth sworn 6 March 2001 and an affidavit of Carl Mickels sworn 12 June 2001. The defendant did not rely upon any affidavit evidence. 2 For the purposes of this application I have taken the plaintiff's case at its highest and I find the following facts.

(1) The plaintiff was born on 5 December 1948 and is 52 years of age. She currently resides in Queensland.

(2) In about April 1966 the plaintiff commenced employment with the defendant. At the time of the accident the plaintiff was employed as a nurse unit manager level 3 at the defendant's hospital, the Garrawarra Centre for Aged Care.

(3) On 10 February 1998 during the course of her employment the plaintiff suffered injury to her back when lifting a box. The plaintiff gave a number of different explanations as to precisely how the accident occurred. I shall refer to these explanations in more detail later in this judgment.

(4) The plaintiff knew immediately that something was wrong so reported the accident in the first aid book. She also completed a Workcover authority notice of injury Claim form and lodged it with the administration at the nursing home.

(5) On 11 February 2001 (the day after the accident) the plaintiff attended her general practitioner Dr Martin Gellately. Dr Gellately issued medical certificates certifying the plaintiff essentially unfit for duties from 11 February 1998 to 14 July 1998. She returned to work on restricted duties from time to time

(6) On 20 January 1999 the plaintiff underwent a laminectomy, disectomy and spinal fusion at St George private hospital.

(7) On 29 March 1999 the plaintiff formally instructed Ms Jan Hing of Firths to act on her behalf in relation her workers compensation claim following an initial telephone call the previous year. Instructions to commence proceedings were given within the limitation period. The plaintiff left the matter in the hands of her solicitors and understood that she was taking proceedings in the Workers Compensation court. She was reluctant to pursue legal proceedings as she had worked for her employer for 30 years and felt loyal to her employer.

(8) In November 1999 the plaintiff moved to Zillmere Queensland. The plaintiff had to rely on telephone conferences with Ms Hing in order to seek and obtain legal advice. The plaintiff was told that she would be advised of the date of a conciliation conference.

(9) On 24 December 2000 Ms Hing left Firths on twelve months maternity leave and arrangements were made for her work to be allocated to other solicitors in the firm. Unfortunately, the plaintiff's case slipped through the net.

(10) On 9 February 2001 the matter first came to the attention of another solicitor in the firm Mr Mickels when he received a report from one of the other solicitors in the firm, Mr Nassir Bechara, following his attendance at a conciliation conference in the plaintiff's matter on 9 February 2001. Mr Mickels immediately called for the file and on the inside front cover of the file he saw for the first time, a file note from Ms Hing dated 16 October 2000. It relevantly stated: "This is a workers compensation claim which I have earmarked as a possible common law claim. The last date to commence is 10 February 2001."

(11) On 15 February 2001 the plaintiff spoke with Mr Mickels of Firths who gave her preliminary advice in relation to common law proceedings and her that Mr Mickels recommended that she speak with the principal of the firm Mr Stephen Firth.

(12) On 16 February 2001 the plaintiff received a telephone call from Mr Firth who discussed her rights under common law. Until that time the plaintiff had left the matter entirely in the hands of her solicitors and had not sought or received any advice in relation to pursing a common law claim for damages.

(13) On 1 March 2001 the plaintiff flew to Sydney to have a personal conference with Mr Mickels and Mr Firth. It was at this conference that the plaintiff first instructed her solicitors to make an application to extend the time within which she could commence common law proceedings.

(14) On 6 March 2001 the summons was filed seeking an extension of time to commence proceedings.

The law 3 I turn now to consider whether leave to commence proceedings should be granted. Section 151D(2) of the Act provides: "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 for compensation more than three 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." 4 The authorities clearly establish that the onus is on an applicant for extension of time to satisfy the court that it is just and reasonable to extend the time. The starting point for examination of the way in which this discretion should be exercised is Salido v Nominal Defendant (1993) 32 NSWLR 524. Salido was recently considered by the Court of Appeal in light of the intervening High Court decision of Brisbane South Regional Health Authority v Taylor (1996) 186 CLR; 139 ALR 1 in Holt v Wynter [2000] NSWCA 143; (1999-2000) 49 NSWLR 128 and Seib v Morton [2000] NSWCA 139, 26 June 2000. In Wynter the Court of Appeal held that the effect of the High Court decision in Taylor is that an application for an extension of time under the limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant. 5 In Salido, at 532 Gleeson CJ set out the principles to be considered in the exercise of the discretion. Although these principles refer to s 52(4) of the Motor Accident Act, they are equally applicable to s 151D(2) of the Workers Compensation Act. 6 They are: "1. Section 52(4) confers a discretion which is to be exercised judicially, in a manner that furthers the purposes of the statutory context in which it appears. The immediate purpose, as with any limitation period, is to protect defendants against injustice of stale claims; the statute is also aimed at promoting forensic diligence.

2. Bearing in mind those statutory purposes, the question is whether, in the circumstances of each individual case, the applicant for leave has demonstrated that it is fair and just that leave should be granted.

3. The diligence, or lack of diligence, shown by a plaintiff or a plaintiff's legal representatives, in ascertaining and asserting his or her rights will ordinarily be a material factor, as will the extent of the relevant delay, and the reason for it.

4. The nature and extent of any forensic disadvantage to a defendant resulting from the plaintiff's delay will also be material. The effect, if any, of the delay upon the defendant's ability to defend an action is a matter to be taken into account, and may in some cases be of decisive importance.

5. Leave under s 52(4) may be refused if it would be plainly futile to grant it, and in that connection an applicant's willingness and ability to give a full and satisfactory explanation of any delays in reporting to police, notifying claims and commencing proceedings will be material." 7 The plaintiff submitted that she has discharged the onus and established that it is fair and reasonable to extend time in which the action should be brought. The defendant opposes the orders sought. 8 The first principle in Salido concerns the protection of the defendant against stale claims as well as the promotion of forensic diligence. The last day for the filing of the plaintiff's claim was 10 February 2000. The plaintiff filed her summons about three weeks late on 6 March 2001. The explanation for the delay is essentially due to her solicitors not conveying to her proper legal advice in relation to her choice to commence common law proceedings. 9 The second principle which must be considered is whether it would be fair and just, given the circumstances of the applicant's case, to grant an extension of time. The plaintiff has suffered permanent serious spinal injuries and it is most unlikely that she will be able to return to nursing duties in the future. The plaintiff notified her employer of the accident immediately after it occurred. She completed a WorkCover injury form. These documents are available. The day after the accident she consulted her general practitioner. She continued to be reviewed by Dr Gellately until she had a spinal fusion in January 1999. A report by the neurosurgeon who performed the operation is available. On 11 December 2000, the defendant's insurer received a medical report from Dr Jackson, a consultant orthopaedic surgeon. On 14 February 2000 the plaintiff's solicitor served a report of Dr Fred Blake on the defendant's insurer. Hence there are contemporaneous claim forms and medical reports available. 10 While the plaintiff's claim is only just outside the stipulated statutory timeframe, the plaintiff was sometimes vague in her evidence from the witness box especially in relation to both the date she conferred with her solicitors and also the nature of the circumstances in which she suffered injury. She has given three different versions of circumstances of her injury namely those firstly, contained in her affidavit; secondly, her evidence given during cross examination; and thirdly, during re-examination. 11 In her affidavit (at paragraphs 4 and 5) the plaintiff stated that she was required to prepare an inventory of existing supplies so that she could place orders on required stock to be delivered to the hospital. In the course of tidying the storeroom so that more stock could be brought in, the plaintiff went to pick up a full box of incontinence aids which had the dimensions of approximately one metre by one metre, by one metre. The plaintiff bent over to lift the box and as she straightened up and went to turn to place the box on the shelf she felt a shooting pain in her lower back and left buttock. This account is reproduced in the statement of claim. 12 In evidence the plaintiff gave a slightly different version of events. The plaintiff at t 6.50-7.5 gave the following answer: "…I had a supervisory position. I was not employed to do any physical labour but achieve my aim with my budget I was called upon to remove these boxes stacked one on top of another, a lot higher than myself. Really they should have been on shelves I guess for easier access."

13 In re-examination the plaintiff was asked at t 11.45-55 t 12.5-10: Q. Madam, you mentioned something about shelving in that very long answer that you gave, what was it that you were saying about shelving? A. The boxes that were stored in these very small rooms that were once sideboards, blue rooms, isolation wards, they contained quite large boxes sometimes sitting on one another, six could be sitting on one another at a time. If there had been shelves - Q. Just to pause there, you said sometimes, what about your particular injury bay? A. There was about six, yes. Q. Six what? A. Six boxes, one on top of the other. Q. Shelves or just stacked one on top of the other? A. Stacked on each other, no shelves. Q. What were you actually doing at the time you suffered your injury? A. At the time I was evaluating the stock because I was in charge of total budgeting for the twelve months. Q. Just what were you doing? A. Physically I was lifting down boxes off one another." 14 The issue is whether it would be fair and just to allow this matter to proceed to trial with varying accounts of the accident. In her affidavit she indicates that she bent over to pick up a box and in this version there was a shelf. In the latter version the plaintiff was lifting down boxes and there were no shelves. These versions are difficult to reconcile. The explanation may be that the plaintiff was lifting boxes that were stacked six high with the lowest box being on the floor. It is clear that it was the act of lifting the boxes on one another that caused the injury to the plaintiff's back. As previously stated, there is corroborative evidence that the plaintiff suffered an injury to her back at work on 10 February. It will be a factual matter whether or not shelving was available. 15 Despite the confusing nature of the evidence it is my view that the inconsistencies in the plaintiff's evidence were not sufficient to cause this claim to be unfair or unjust were it to proceed to trial. 16 It is my view that the plaintiff has satisfied the second principle established in Salido and it is fair and just to permit this matter to go to trial. 17 The third issue that this court must consider when determining the manner in which the discretion is to be exercised is the diligence of the plaintiff or the plaintiff's solicitor in ascertaining and asserting the plaintiff's rights. In Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139 at para 147, Foster AJA (with whom Heydon JA agreed on this issue) stated that this was a case where during the periods of delay the plaintiff was relying upon his solicitors who clearly let him down. Foster AJA referred to a observation of the trial judge namely that "For the reasons stated in Forbes v Davies [1994] Aust Torts Reports 81-279 at 61404-61405, if the plaintiff has a relevant action against his instructing solicitors in regard to this matter, in my view the weight that should be attached to it should be minimal and the matter ought proceed in accordance with the normal way such matters are considered and assessed". 18 This approach has similarly expressed by Kirby P (as he then was) in Morrison v Judd (NSWCA, unreported 10 October 1995 which relates to an application for an extension of time to serve a statement of claim). In Manning Foster AJA then stated: "In the case cited in this passage reference is made to decided cases in which it has been held that an applicant for extension of a limitation period should not be "bound" by negligent delays on the part of the solicitor. In my view, there can be no hard and fast rule that a solicitor's mistakes will necessarily act as a bar to his client obtaining an extension of time, particularly where the court hearing the relevant application has been provided with a discretion as wide as that accorded by s 52(4) of the Act. Salido does not establish such a rule. Moreover, it by no means follows that an action brought by the respondent against his solicitors would necessarily succeed or be productive of an award of damages of the size that might be obtained in the claim against the Nominal Defendant, should it succeed."

19 As pointed out by Foster AJA, there is no hard and fast rule. I accept that the plaintiff's solicitor has been largely responsible for the not obtaining instructions in relation to whether the plaintiff wished to commence common law proceedings prior to the expiration of the limitation period and that the plaintiff is not responsible for this oversight. 20 The fourth consideration this court must take into account is the nature and effect of any forensic disadvantage. There was a relatively short period of delay, 3 weeks. The defendant has not filed any evidence to establish actual prejudice, but there is some presumptive prejudice caused by the delay. The defendant had notification of the accident immediately after it occurred. I have previously covered the material that is available to both parties. The defendant's insurer had been notified of the claim when workers compensation proceedings were commenced. 21 The fifth and final consideration imposed on this court by Salido is that leave may be refused if it is futile to do so. The defendant submitted that the plaintiff did not have a case to advance. The statement of claim pleads that on 10 February 1998 in the course of tidying the store room the plaintiff was required to lift a large box full of incontinence aids. As she did so she sustained injury to her lower back. The plaintiff's injuries were caused by the defendant's breach of the said implied term or duty of care or both. 22 The particulars of breach are that the defendant firstly, failure to ensure for the reasonable care and safety of the plaintiff; secondly, exposed the plaintiff to a foreseeable risk of injury which could have been avoided by the exercise of reasonable care; thirdly, failure to take any or adequate precautions for the safety of the plaintiff; fourthly, failed to ensure the health, safety and welfare of the plaintiff pursuant to s 15 of the Occupational Health and Safety Act 1983; fifthly, failed to devise, adopt, institute, maintain or enforce a safe system of work; sixthly, failed to undergo a risk assessment of the defendant's premises to ensure the safety of the plaintiff; seventhly, failed to instruct the plaintiff on the safe and effective means of alleviating the risk of injury; eighthly, failed to observe and inspect the system which had been instituted in the above mentioned premises; ninthly, failed to inspect the work premises where the plaintiff was required to work as to ensure its safety; tenthly, failed to have in place a proper and safe system of conducting its operation; eleventhly, failed to provide proper and efficient supervision of same; twelfthly, failed to advise, instruct or educate the plaintiff in relation to safe lifting of heavy boxes and/or equipment; thirteenthly, failure to provide a risk analysis of the lifting requirements of the plaintiff to identify the risk of injury in order to make changes to the system; fourteenthly, failure to provide the plaintiff with assistance in lifting heavy boxes; fifteenthly, further, and in the alternative, the said injuries were occasioned to the plaintiff by reason of the breaches by the defendant, its servants or agents, of its statutory or legal obligations of the plaintiff.

23 The defendant highlighted a file note dated 16 October 2000 from the plaintiff's solicitor's file in which Ms Hing states that as the plaintiff was the nursing unit manager she does not imagine that any one told the plaintiff to clear up the storeroom and that it may be that all they are left with is the workers compensation claim. This depends on the facts elicited at trial and it does not follow that it is fatal to the plaintiff's claim. Even with the vexing issues of whether there was shelving available and the different accounts of precisely how the accident occurred. It is still my view that the plaintiff has a real case to advance. It was after this date that Mr Firth sought specific instructions in relation to common law negligence. 24 It is my view that the plaintiffs have discharged their onus and satisfied me that it is just and reasonable that an order be made that the limitation period be extended. In Wynter, Sheller JA stated that 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. It cannot be said that the defendants' opposition was wholly unreasonable. The plaintiffs should pay the defendants' costs. It may be that the plaintiff's solicitor should be ordered to pay these costs. The plaintiff's solicitor is to show cause why he should not pay these costs. 25 Finally, the defendant submitted that this matter does not fall within the jurisdiction of the Supreme Court and should be transferred to the District Court. The plaintiff is 52 years of age. She was earning $1,174.15 net per week. If the plaintiff cannot return to employment this would amount to approximately $976,892 less 15% = $830,358. To this must be added non economic loss, loss of superannuation, out of pocket expenses, and past home care service. It is my view that the appropriate court is this one. 26 The court orders:

(1) Leave for the plaintiff to commence court proceedings in respect of injuries suffered as a result of an accident which occurred on 10 February 1998 is granted.

(2) The plaintiff is to file and serve a statement of claim within 14 days.

(3) The plaintiff or plaintiff's solicitor is to pay the defendant's costs. The plaintiff's solicitor is to show cause why he should not pay the costs of the summons. **********

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