Uniting Church In Australia Property Trust (NSW) t/as Woodfield Retirement Village v Judith Lea

LOWER COURT JURISDICTION : District Court LOWER COURT DC 9387/99 FILE NUMBER(S) : LOWER COURT Dodd DCJ JUDICIAL OFFICER :

COUNSEL : Appellant: C Hoeben SC/ W Austron Respondent: S Norton SC/ A Healey SOLICITORS : Appellant: Hicksons Respondent: Brydens CATCHWORDS : Workers Compenation - leave to revoke election - Workers Compensation Act 1987 s 151A(5) - whether judge had wrongly exercised discretion under s 151D - whether prejudice results from respondent's delay - onus of proof - test for what justice of the case requires - whether inability of the appellant to call witnesses due to respondent's delay would cause prejudice. D LEGISLATION CITED : Limitation of Actions Act 1974 (Qld) Workers Compensation Act 1987 (NSW) Itek Graphix Pty Limited v Elliott (2001) NSWCA 442 Salido v Nominal Defendant [1993] 32 NSWLR 524 CASES CITED: Cowie v State Electricity Commission (Vict) (1964) VR 788 Campbell v United Pacific Transport Pty Ltd (1966) QdR 465 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 DECISION : (1) Appeal upheld (2) Set aside the orders made by Dodd DCJ and order that the respondent's application for an order that she be granted leave to file an ordinary statement of claim pursuant to s 151A(4) of the Workers Compensation Act and for an order that time be extended for the commencement of proceedings against the appellant claiming damages at common law be refused (3) Respondent to pay the appellant's costs of the proceedings below and the costs of the appeal (4) Respondent to be granted a certificate under the Suitors Fund Act if she is otherwise entitled thereto.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40037/01 DC 9387/99

P0WELL JA BEAZLEY JA IPP AJA

Thursday 14 March 2002 UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (NSW) T/AS WOODFIELD RETIREMENT VILLAGE v JUDITH LEA

On 10 March 1994 during the course of her employment in a geriatric ward, the respondent, a nurse's aide, tripped over cushions left on the floor while lifting an elderly patient onto a bed. As a consequence the respondent twisted and fell against a wardrobe causing her to injure her spine. The respondent commenced proceedings against the appellant under s 151A of the Workers Compensation Act 1987 (NSW) for permanent loss compensation. In doing so, the respondent made the election prescribed by s151A(3). On 10 August 1995 the proceedings were heard, the case settled and Davidson CCJ approved the settlement.

On 10 December 1999 the respondent applied for leave to revoke her election and for an order under s151D of the "Act" extending time within which to bring proceedings against the appellant for common law damages. On 11 December Dodd DCJ granted the respondent leave under s 151A(5) to revoke her election and she was also granted leave under s151D to commence proceedings against the appellant for common law damages. The appellant appeals against this decision.

On appeal, the question whether an extension of time should be granted turned on the issue of prejudice.

Held Per Ipp AJA, Powell JA and Beazley JA agreeing. Upholding the appeal

When an applicant seeks an extension of time to commence an action after the limitation period has expired the applicant retains a positive burden to demonstrate that the justice of the case requires an extension. The appellant led evidence that an important witness to the respondent's fall is now residing in China at an unknown address and therefore in consequence it was prejudiced. This discharged the evidentiary onus on the appellant. Similarly the appellant discharged the evidentiary onus upon it in regard to those persons who were present in the ward at the time the incident occurred and who had died by the time the respondent sought leave to revoke her election. It was then for the respondent to demonstrate that, despite the fact that these potential witnesses had died or were living at an unknown address overseas, that time should nevertheless be extended. The question is: how does the absence of the witnesses affect the justice of the case. The onus was on the respondent to prove that the appellant's inability to call these persons as witnesses would result in no prejudice to it, but it failed to do so. (Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541) applied.

Although the respondent claims to have reported her accident at the time, the reports were not accompanied by any assertion that the injuries suffered by the respondent were caused by the negligence of the appellant. The first time that the respondent claimed that the appellant had been negligent was when the respondent applied for leave to revoke her election and for an order extending time to enable her to pursue common law proceedings.

The learned Judge erred in his application of the onus of proof in relation to the issue of prejudice resulting from the respondent's delay. Furthermore the learned Judge failed to evaluate the circumstances in the light of the rationales for the limitation period contained in s151D (2). Thus his honour erred in finding that it was fair and just that the respondent be granted leave to commence proceedings at common law against the appellant. (Itek Graphix Pty Limited v Elliott (2001) NSWCA 442 ) applied. Orders (1) Appeal upheld (2) Set aside the orders made by Dodd DCJ and order that the respondent's application for an order that she be granted leave to file an ordinary statement of claim pursuant to s 151A(4) of the Workers Compensation Act and for an order that time be extended for the commencement of proceedings against the appellant claiming damages at common law be refused. (3) Respondent to pay the appellant's costs of the proceedings below and the costs of the appeal. (4) Respondent to be granted a certificate under the Suitors Fund Act if she is otherwise entitled thereto.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40037/01 DC 9387/99

P0WELL JA BEAZLEY JA IPP AJA

UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (NSW) T/AS WOODFIELD RETIREMENT VILLAGE v JUDITH LEA

Judgment 1 POWELL JA: I have read, in draft, the Judgment which has been prepared by Ipp AJA. 2 I am disposed to think that, if it had been necessary, for the determination of this appeal, to do so, I would have held, first, that the respondent had failed to establish that, after the election, there had been a material deterioration in her condition, and, second, that, even if she had done so, the respondent had failed to establish that, at the time of the election, it would have been unreasonable to believe that her condition would further deteriorate as it had. However, as, for the reasons given by Ipp AJA in his Judgment, I am of the opinion that the respondent failed to make out a case for the exercise in her favour of the discretion conferred on Dodd DCJ by s.151D(2) of the Workers Compensation Act to extend the time for commencing proceedings at common law, it is unnecessary for me to express a concluded view on those matters. 3 I agree with the orders proposed by Ipp AJA. 4 BEAZLEY JA: I agree with Ipp AJA. 5 IPP AJA: On 10 March 1994 the respondent, in the course of her employment with the appellant as a nurse's aide, fell whilst lifting a patient onto a bed. She thereby suffered injuries to her spine. The respondent commenced proceedings against the appellant under s151A of the Workers Compensation Act 1987 (NSW) ("the Act") for permanent loss compensation. She thereby made the election prescribed by s151A(3). On 10 August 1995 the proceedings were heard, the case was settled and Davidson CCJ approved the settlement. 6 On 10 December 1999 the respondent applied for leave to revoke her election and for an order under s151D of the Act extending time within which to bring proceedings against the appellant for common law damages. 7 On 11 December Dodd DCJ granted leave to the respondent under s151A(5) to revoke her election to claim permanent loss compensation, and also granted her leave under s151D to commence proceedings against the appellant for common law damages. On 9 August 2001, this court granted the appellant leave to appeal against the decision of Dodd DCJ. 8 On appeal the appellant argued that Dodd DCJ had erred in his application of s151A (5)(b) and s151A (5)(c) of the Act and had wrongly exercised his discretion under s151D. I have come to a firm conclusion in regard to the argument based on s151D and it is not necessary for me to deal with the other arguments. 9 At the outset, I should say that Dodd DCJ found that the delay on behalf of the respondent had been satisfactorily explained. The respondent said that she had not been advised of her possible common law rights to damages until after making her election. Dodd DCJ accepted her evidence on this issue and his Honour's decision on this was not challenged. On appeal, the question whether an extension of time should be granted turned on the issue of prejudice.

10 The respondent's case in negligence against the appellant was based on the allegation that, in the course of her employment with the appellant, she was lifting an elderly patient in a geriatric ward when she tripped over cushions which had been left under the patient's bed and were protruding into her path. In tripping, the respondent twisted and fell against a wardrobe. This, she asserted, caused her to injure her spine. 11 The respondent alleged that the appellant was negligent in several respects including leaving the cushions in a dangerous position, failing to provide the respondent with a "proper and safe mechanical lifting device" and exposing her to a risk of injury. 12 In lifting the patient, the respondent was assisted by another nurse's aid employed by the appellant, one Ms Ping Lin. In the respondent's claim form, which she submitted to the appellant in support of her claim for permanent loss compensation, the respondent inserted Ms Ping Lin's name as the sole witness to the incident. In fact, the patients in the ward in which the respondent was injured were probably also witnesses to the occurrence. 13 In the claim form, the respondent asserted that she gave notice to Sister E Mell (the correct name was in fact Nell) at 2.00pm on 11 March 1994 (the day after the incident). 14 There was evidence before Dodd DCJ that the respondent had informed a medical practitioner, Dr PJ Burke that, in the afternoon of 11 March 1994, she also reported the incident to the matron, Ms Lillian Stockall. 15 Accordingly, on the respondent's version, the following were material witnesses to the incident: Ms Ping Lin (who was an eyewitness), the patients in the ward (who probably were eyewitnesses), Ms Nell (to whom a report was made) and Ms Stockall (to whom a report was also made). 16 According to a report dated 2 May 2000 by Mr Glen McNamara, an investigator employed by the appellant, Ms Lin has returned to China to live there and Mr McNamara was not able to obtain any forwarding address for her. An affidavit by the appellant's solicitor dated 7 June 2000 was to the same effect.

17 In his report Mr McNamara said that the appellant's duty roster for March 1994 showed that Ms Lin worked between 2.30pm and 11.00pm on 10 March 1994. This constituted evidence that tended to show that Ms Lin could not have been present at the ward in question at 1.45 pm on 10 March 1994 when the respondent tripped and fell. At that time, Ms Lin had not commenced her rostered duties. 18 Before Dodd DCJ, the appellant contended that the disappearance of Ms Lin was prejudicial to it and, accordingly, an extension of time should not be granted. This contention was reiterated on appeal.

19 According to the evidence of the appellant's solicitor, by 7 June 2000 the elderly patients in the ward in question had all died. On appeal, the appellant argued that the inability to call any of these persons as a witness was a further ground of prejudice. It is not apparent whether this point was taken below. 20 In his reasons for judgment Dodd DCJ observed that the appellant's investigator had confused Ms Ping Lin with another employee, P Li. He said: "it is P Li who has apparently returned to China". His Honour then remarked: "I am not satisfied that the witness is unavailable. However, for the purpose of this application I assume that she is now unavailable. That does not necessarily mean that a fair trial cannot take place. Bearing in mind that the incident was reported and that the witness was available at the time of the incident for the purpose of giving a statement I have come to the conclusion that it is fair and just in the circumstances that the plaintiff be granted leave to commence proceedings in this Court. This is not a situation where many years after the alleged injury a claim is suddenly sprung on an unsuspecting defendant who has had no opportunity to investigate the circumstances of the injury. "

21 The claim form submitted by the respondent states that "the witness was Ms Ping Lin". The appellant's roster refers to "P Lin" and "P Li". They appear to be two different persons, as they are treated differently on the roster and appear to have worked at different times. According to the roster "P Lin" was rostered to work from "6.30 - 3.00" on 10 March 1994, while "P Li" was rostered to work from 2.30 - 11.00" on that date. The respondent is shown on the roster to have worked between 6.30 to 3.00pm on that date. The roster therefore tends to rebut the testimony of Mr McNamara that Ms Lin could not have been present at the ward at 1.45 pm on 10 March 1994 when the respondent tripped and fell.

22 Nevertheless, the appellant's solicitor testified that "Ms Ping Lin has returned to live in China and there is no forwarding address for her". Moreover, Mr McNamara stated that Ms Ping Lin had returned to live in China and he had no forwarding address for her. This evidence was not challenged at the hearing before Dodd DCJ. The respondent was questioned as to Ms Lin's address but she, too, did not know her whereabouts. In my view the matter must be approached on the basis that the appellant would not be able to call Ms Lin as a witness at the trial. 23 The respondent argued that there was other evidence on which the appellant could rely which tended to reflect adversely on the credibility of the respondent. Therefore, it was submitted, the appellant might well succeed without the testimony of Ms Lin.

24 Part of this evidence was a statement by Ms Nell in which she said that, apart than what she had been told about the alleged incident (presumably by Mr McNamara), she had no direct or personal knowledge of it. She also said that she had examined a copy of the appellant's roster for 11 March 1994. This indicated that she was on duty on 11 March 1994 between 7.00am to 11.00am. On that basis it was not possible for the respondent to have reported the incident and injury to her (as the respondent alleged) at 2.00pm on 11 March 1994. 25 Ms Stockall also made a statement denying that the respondent made any report to her in relation to the incident. According to the roster, Ms Stockall was at a "conf" on the afternoon of 11 March 1994.

26 Notwithstanding the likely evidence of Ms Nell and Ms Stockall, it would be open to a court to believe the respondent and disbelieve them. It is also possible that their testimony would not be regarded as conclusive as they were not eyewitnesses to the incident.

27 Neither party took a statement from Ms Lin and neither party knows what her testimony is likely to be. There is no doubt, however, that, were Ms Lin to be a witness, her testimony would be critical. Were she to testify, her evidence might swing the balance - depending on whose version she supports. 28 In the circumstances, the onus of proof in relation to the issue of prejudice is crucial. Were the onus to be on the respondent to prove absence of prejudice (or, put in another way, that justice requires an extension of time to be granted), the omission of the respondent to establish that the absence of Ms Lin would not prejudice the appellant would go a long way to establish that a court could not be satisfied that this was an appropriate case to grant an extension of time. Were the onus to be on the appellant to prove that it would be prejudiced by the absence of Ms Lin, it is plain that it has not discharged that onus. 29 In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 the Court was concerned with s31 (2) of the Limitation of Actions Act 1974 (Qld). Toohey and Gummow JJ at 547 said in regard to this subsection: "The discretion conferred by the subsection is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well-established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour… There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission (Vict) (1964) VR 788 at 793 in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd (1966) QdR 465 at 474 'it is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice'" 30 McHugh J, in the same case, expressed similar views saying: "Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension"

(See also his Honour's further discussion at 554 - 555; see also Dawson J at 544 and Kirby J at 567)

31 In my view, the appellant, by leading evidence that Ms Lin is now a resident in China at an unknown address and by claiming that, in consequence, it was prejudiced, discharged the evidentiary onus on it. It was then for the respondent to satisfy the Court that the justice of the case required that time should be extended, notwithstanding Ms Lin's absence. 32 Similarly, in my view, the appellant discharged the evidentiary onus upon it in regard to those persons who were present in the ward at the time the incident occurred and who had died by the time the respondent sought leave to revoke her election. Again, it was for the respondent to demonstrate that, despite the fact that these potential witnesses had died (without apparently having made any statements about the incident), time should nevertheless be extended. 33 In my reasons in Itek Graphix Pty Limited v Elliott (2001) NSWCA 442 (with which Spigelman CJ and Sheller JA agreed). I said (at 87): "In my opinion, in limitation legislation such as s151D(2) of the Workers Compensation Act, where a broad discretion is conferred to grant leave to sue after the expiry of the limitation period, the general question that has to be asked is what is fair and just (per Gleeson CJ in Salido v Nominal Defendant [1993] 32 NSWLR 524). Or what does the justice of the case require (per McHugh J in Brisbane South Regional Health Authority v Taylor ) 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". 34 Those four rationales were: (a) as time goes by relevant evidence is likely to be lost;

(b) it is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed;

(c) it is desirable for people in the community to be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Many in the community have a significant interest in knowing that they have no liabilities beyond a definite period;

(d) the public interest requires that disputes be settled as quickly as possible. 35 Ms Norton SC (who together with Ms A Healey appeared for the appellant) supported the approach of Dodd DCJ that, even if a witness was unavailable, "that does not necessarily mean a fair trial cannot take place". Plainly, the absence of a witness does not necessarily mean that the trial will be unfair (in the sense of the trial being not in accordance with law). Where, however, the Court is considering the effect of the absence of a witness who is potentially significant to the result, the question is: how does the absence of the witness affect the justice of the case.

36 I have pointed to the fact that the testimony of Ms Lin has the potential to be of critical importance. Her absence is capable of making the difference between the appellant winning or losing at the trial. The respondent adduced no evidence of any factor that would reduce the potential prejudice to the appellant brought about by its inability to call Ms Lin. In the circumstances, I consider that her absence militates strongly against the grant of an extension of time.

37 In my view, the inability of the appellant to lead the evidence of the other patients in the ward is also an important factor. Ms Norton attempted to brush this factor aside on the basis that the patients were geriatric and were therefore unlikely to be able to give cogent evidence on the issue. I accept that an inference can be drawn that the patients concerned were at least physically debilitated. But there was no evidence as to their mental capacity. The onus was on the respondent to prove that the appellant's inability to call these persons as witnesses would result in no prejudice to it, but it failed to do so. 38 Ms Norton also supported the reasoning of the learned Judge that the prejudice to the appellant resulting from the non-availability of Ms Lin was negatived because "the incident was reported" and "the witness was available at the time of the incident for the purpose of giving a statement". I do not accept however that these matters ameliorate in any way the prejudice suffered by the appellant.

39 Accepting for the purposes of these reasons that the matter was reported (albeit that the persons to whom the respondent says she reported the matter deny that reports were made to them), the reports were not accompanied by any assertion that the injuries suffered by the respondent were caused by the negligence of the appellant. The first time that the respondent claimed that the appellant had been negligent was when the respondent first applied for leave to revoke her election and for an order extending time to enable her to commence proceedings at common law against the appellant. 40 It is not clear precisely when the appellant was informed of the respondent's intention to bring such proceedings against it, but it appears to have been no earlier than December 1999 when the respondent filed her application for leave to revoke her election under s151A and for an order extending time for the commencement of proceedings at common law. In these circumstances, in my view, there was no call for the appellant to interview witnesses and take statements from them at an earlier time. It simply did not know that it was at risk of facing a common law claim. 41 Ms Norton submitted that the appellant had a duty to investigate the accident so that it could ensure that in future a safe system and place of work could be achieved and that the appellant should not now be able to shelter behind its own default. I do not accept this submission. As no allegation was made to the appellant that a safe system of work was not in place, there was no need for it to make any investigation. After all, even now it has not been proved that the system of work in place was unsafe and that the appellant was negligent. "Default" on behalf of the appellant has not been proved. The overriding principle is that the respondent bears the burden of proving that the justice of the case requires that time be extended. In circumstances where the respondent did not assert negligence against the appellant, that burden cannot be discharged by arguing that the appellant, at an early stage, should have investigated whether it was negligent. 42 Finally, Dodd DCJ said: "This is not a situation where many years after an alleged injury a claim is suddenly sprung on an unsuspecting defendant who has had no opportunity to investigate the circumstances of the injury." 43 I do not agree with this comment. The respondent's back was injured in the incident on 10 March 1994. The appellant learned for the first time some five years and nine months later that the respondent was alleging that it negligently caused her injury. This contention was made long after settlement of the respondent's claim for permanent loss compensation under the Act. In these circumstances, it seems to me, the respondent's claim based on negligence was indeed suddenly sprung on the unsuspecting defendant many years after the injury had been sustained. The result was that the appellant lost an opportunity to take statements from eyewitnesses to the incident and an opportunity to call at least one of the witnesses to testify at any trial that might result. 44 In my view, the learned Judge erred in his application of the onus of proof in relation to the issue of prejudice resulting from the respondent's delay. He failed properly to take into account the prejudice to the appellant arising from the absence and unknown whereabouts of Ms Lin and the death of the other occupants of the ward in which the respondent was injured. Generally, the learned Judge failed to evaluate the circumstances in the light of the rationales for the limitation period contained in s151D (2). For these reasons and the others that I have mentioned I consider that his Honour erred in finding that it was fair and just that the respondent be granted leave to commence proceedings at common law against the appellant. 45 In the circumstances, I would uphold the appeal, set aside the orders made by the learned judge and order that the respondent's application for an order that she be granted leave to file an ordinary statement of claim pursuant to s151A (4) of the Workers Compensation Act and for an order that time be extended for the commencement of proceedings against the appellant claiming damages at common law be refused. I would order that the respondent pay the appellant's costs of the proceedings below and the costs of the appeal. I would grant the respondent a certificate under the Suitors Fund Act if she is otherwise entitled thereto.

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