Vearing v Great Southern Energy

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

R400104/2000 - FRANCIS CAMPBELL VEARING v GREAT SOUTHERN ENERGY

JUDGMENT (Withdraw election; leave to commence proceedings- ss 151A & 151D WCA)

1 MASTER: By summons filed 15 February 2000 the plaintiff seeks firstly, leave to revoke the elections pursuant to s 151A of the Workers Compensation Act 1987 (NSW) (the Act); and secondly, an extension within which to commence proceedings pursuant to s 151D(2) of the Act. The plaintiff relied on his affidavit sworn 23 December 1999 and the affidavit of his solicitor Peter Wayne Smith sworn on 24 May 2000. The defendant did not rely upon any affidavit evidence. I carefully observed the plaintiff when he was giving evidence and being cross examined. I formed the view that he was a truthful witness. 2 For the purposes of this application I find the following facts.

(1) The plaintiff was born on 23 October 1960 and is now 39 years of age.

(2) The plaintiff left school about 16 years of age and worked on the family farm until about 21 years of age. He then worked for about 12 months as a labourer on a drilling rig based at Orange. He spent the next two years working as a farm hand at Ariah Park.

(3) On 1 September 1986 the plaintiff commenced employment as an overhead linesman with Northern Riverina County Council. In about April 1996 Northern Riverina County Council was taken over by the defendant.

(4) On 22 September 1992 the plaintiff suffered an injury to his right knee whilst climbing a pole and was on workers compensation for a short period of time. On 26 November 1992 surgery was performed on his knee and since then he had had occasional problems with the knee locking and from time to time there is a grating sound in the kneecap. The statement of claim does not include this injury as giving rise to a claim.

(5) On 13 March 1996 during the course of his duties as a pole inspector while emptying a large dirt tray the plaintiff felt pain in his lower back. He continued the job, had lunch but his back got no better and the pain increased. He continued to pole inspect during the afternoon and finished work at about 4.00 pm. The pain was gradually increasing and when he arrived home he lay on the lounge and then went to bed. When he awoke in the morning he had pain into his right leg. He tried to get ready for work but was unable to put his boots on. He telephoned his supervisor Hugh Goodfellow. The plaintiff spent that night in West Wyalong hospital. After being treated by Dr McGee he was released from hospital the next day with painkillers.

(6) On 15 April 1996 the plaintiff saw Dr McGee who gave him a certificate to stop work. The plaintiff filed a compensation form with his employer.

(7) On 11 June 1996 Dr Huntsdale performed a laminectomy. On 10 July 1996 Dr Huntsdale gave the plaintiff a clearance to return to work on modified duties only. He returned to work on 15 July 1996 with a restriction on heavy lifting and bending.

(8) On 18 November 1996 the plaintiff further injured his back when he was carrying out his work duties which involved lopping trees.

(9) On 6 June 1997 the plaintiff together with his supervisor and the medical practitioners involved in his rehabilitation compiled a duty statement. Restrictions were identified as, no lifting over 20 kilos, the plaintiff was not to inspect poles because that task involved heavy digging, the use of crowbar and working in a crouched position. He was only to do minimal work involving forward flexion and minimal ladder work. The plaintiff gave evidence that at this time he knew that he had a bad back and there was risk of further injury if he did not adhere to the above restrictions. He appreciated that if he lifted heavy weights there was the possibility that he could injure his back. Likewise, if he was involved in excessive bending he realised that it was possible he could injure his back. At this time the plaintiff thought his back injury, although permanent, would improve and he would be able to return to normal duties. He was of this opinion that his back would improve because he had been told by Dr Huntsdale that his operation had been a success. In June 1997 he did not appreciate that his back would deteriorate to the condition that it is now in.

(10) The report of Dr Huntsdale dated 24 June 1997 (Ex A) stated that the plaintiff had pleasing result from his operation. Dr Huntsdale believed that the plaintiff had had a satisfactory result from his surgery and his permanent disability was 10% permanent impairment of his back. The plaintiff said that he understood that he had a permanent problem with his back.

(11) On about 5 June 1997 the plaintiff spoke with Delia Witney the safety co-ordinating officer for Great Southern Energy Queanbeyan who spoke to him about pain and suffering. She said to the plaintiff "You are entitled to a percentage of money for pain and suffering". She also said although it was up to him whether he consulted a solicitor for legal advice in the long run he would be better off just accepting what the insurance company was going to give him. He would come out better. At that time the plaintiff was optimistic about his recovery because his condition had improved. He was not worried about the money but was more concerned with holding onto his job.

(12) On 15 October 1997 the plaintiff accepted s 66 Workers Compensation Act compensation payment for his back assessed at 10% permanent loss of his back in the sum of $6,000. By letter dated 7 August 1997 the plaintiff was informed that "acceptance of this sum of $6,000 does not affect any further claims for time off work or medical treatment that may arise in the future result of your injury on 13 March 1996." The plaintiff was further advised to obtain legal advice. However at the time of signing the agreement the plaintiff had not received any advice from either the insurer, WorkCover or his employer about his common law rights. Nor had he received any advice concerning the consequences of accepting the sum of $6,000, including the fact that it was an election under the Workers Compensation Act. Had the plaintiff been aware of the consequences of his acceptance of the lump sum he would have sought legal advice.

(13) In June, July, August, September and October 1997 the plaintiff's back condition continued to improve such that he was reasonably confident about the future and his ability to work. He had no reason to believe that his back would get worse. He had not been told by his doctors that his back condition would deteriorate.

(14) In October 1997 when the plaintiff accepted the election to claim permanent loss compensation he was on restricted duties. However, he had been given advice by Dr Huntsdale on 24 June 1997 which was 12 months since the plaintiff had had a laminectomy the surgery had been satisfactory. The plaintiff believed that although he had a permanent problem with his back, he could carry out duties subject to the restrictions that had been specified in the letter dated 6 June 1997. If he did not adhere to those restrictions it was a possibility that he could further injure his back. However because of what he had been told by Dr Huntsdale he thought that his back would continue to improve so that he would be able to return to normal duties. In actual fact in the period from 6 June 1997 until when he signed the agreement his back did continue to improve.

(15) In February 1998 whilst changing insulators and retying conductors on line 13 at Temora, the plaintiff suffered pain to his back and completed an injury notice form that day. On 7 February 1998 there was a severe storm at West Wyalong and the surrounding areas and as a result the trees and branches were blown down causing damage to a number of lines in the area. He was asked to come to work because there were a lot of customers without power. During this period the plaintiff climbed poles, restored power to dwellings and buildings, carried ladders and equipment over heavy ground of distances up to about 100 metres and winched vehicles out of bogs. His co-worker was Graham Wollstonecroft. On 8 February 1998 he returned to work and carried out the same duties as described above. Over the two days the pain in his back gradually increased. By 10.30 pm that night the pain was extreme. The plaintiff saw Dr McGee on 10 February 1998 who gave him one month off work. He completed a compensation form on 16 February 1998.

(16) The plaintiff's rehabilitation continued and he was confined to suitable duties. He had no severe problems until 18 June 1998. On this day he was reading a meter which involved driving a four wheel drive vehicle over rough roads and farm tracks. He suffered a recurrence of severe lower back pain.

(17) On 21 June 1998 the plaintiff saw Dr McGee who again put him or restricted duties. Since 14 July 1998 the plaintiff has been carrying out work in accordance with the work plan. He has suffered from back problems. His hours are reduced and/or he is restricted to working in the office.

(18) The plaintiff currently works five hours per day for a nine day fortnight. He is mainly involved with office duties, meter readings, final readings and disconnections, organising work programs and organising power restrictions to enable maintenance.

(19) The plaintiff's current physical symptoms are constant pain to his lower back, numbness to the three smaller toes on his right foot, numbness in the right calf, pain in the right leg, problems with his right knee because he walks in a fashion that puts pressure on his knee, and as a result of these problems he is required to take painkillers and take regular rest periods, both at work and at home and undertake an exercise program which involves walking distances up to about a kilometre.

(20) On 8 March 1999 the plaintiff and his wife consulted a solicitor for the first time. Peter Smith of Farrell Lusher advised the plaintiff that he had common law rights under the Workers Compensation Act and that his acceptance of the sum of $6,000 was seen as an election and he would have to ask the court to overturn that election if he wanted to proceed at common law.

(21) Dr Bleasel in his report dated 10 August 1999 stated that the plaintiff has a permanent disability and he would never return to his pre-injury occupation and every aspect of his working life and leisure activity has been affected by his disability. The prognosis for the future was guarded and he did not think that there was a likelihood of further surgery. He considered that the plaintiff has a permanent impairment of his back of 40%, permanent loss of the efficient use of his right leg at above the knee level, taking into account below the knee of 15% and a permanent loss of the efficient use of his left leg at an above the knee level, taking into account below the knee of 5%.

(22) Dr Searle in his report dated 21 September 1999 says that in his view a fusion is almost certain at some stage in the future and he also agrees that the plaintiff has work restrictions and has suffered significant inhibitions to his social, domestic and recreational activities. Dr Searle assesses the work injuries as a 30% permanent impairment of his back, 15% loss of the efficient use of his right leg at or above the knee to include the whole limb and also agrees with the assessment of 5% permanent loss of the efficient use of the left leg at or above the knee to include the whole limb. Additionally he assesses 20% permanent loss of the use of his sexual organs due to the back injury.

(23) On 30 March 1999 the solicitor sought counsel's advice. The plaintiff's solicitor arranged medical appointments for the plaintiff. The earliest dates the plaintiff's solicitor could obtain were August 1999. The plaintiff's solicitor also obtained an expert's report on liability which has been served.

(24) On 15 February 2000 a summons seeking an extension of time was filed.

Election 3 Section 151A(5) of the Workers Compensation Act provides: "If: (a) a person elects to claim permanent loss compensation in respect of an injury, and (b) after the election is made, the injury causes a further material deterioration in the person's medical condition that, had it existed at the time of the election, would have entitled the person to additional permanent loss compensation, and (c) at the time of the election, there was no reasonable cause to believe that the further deterioration would occur, the person may, with the leave of the court and on such terms (if any) as the court thinks fit, revoke the election and commence proceedings in the court for the recovery of damages in respect of the injury." 4 The plaintiff referred to Brennan Taylor v State of New South Wales NSWCA 158 and Francis v Dunlop (NSWCA, unreported 16 December 1998). 5 In Brennan Taylor the Court of Appeal considered the interpretation of s 151A(5) and referred to Francis where the court was divided on its meaning. The High Court has granted special leave in Brennan Taylor. Handley JA dissented in Francis and maintained his dissenting view in Brennan Taylor. An application for leave to appeal has been lodged in Brennan Taylor. In relation to s 151A(5)(c) Giles JA referred to a passage of Fitzgerald AJA in Francis namely: "'Would a reasonable person with the information available to the appellant when he elected to accept permanent loss compensation on 30 June 1993 have then had any cause to believe that his injury in respect of which such compensation was accepted would cause a further material deterioration in his medical condition that, had it existed at the time of the election, would have entitled the appellant to additional permanent loss compensation?' (Emphasis added) Because of the awkward phraseology of the section, I should elaborate briefly. The section required an absence of reasonable cause for belief. On the other hand, the belief with which it is concerned is not a belief as to what might occur, but a belief as to what would occur (Cf Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266, 291-292, per Barwick CJ; 303-304 per Kitto J). Knowledge of medical advice that further deterioration probably would occur provides reasonable cause to believe that deterioration would occur in the absence of any contrary opinion, but does not necessarily do so if there is other medical advice that further deterioration probably would not occur. In the latter event, the question which I have posed would be answered in the affirmative unless, on a consideration of all the advice, a reasonable person would conclude that, while further deterioration might occur it would probably not occur." 6 At paragraph (43) Giles JA stated that: "Paragraph (c) must, of course, be read as a whole. Regard to the composite notion of reasonable cause to believe that a future event will occur, in my view, means that the further deterioration must be more than a possible event (because it can not readily be said that a possible event will occur) but not a certain event (because cause to believe and the futurity deny certainty), and that the belief must be more than suspicion (because reasonable cause should found more than suspicion) but less than complete confidence (because reasonable cause and the futurity deny complete confidence). The reference to reasonable cause connotes the existence of facts sufficient to induce the relevant belief in a reasonable person (cf George v Rockett (1990) 170 CLR 104 at 112). Assuming without deciding the field of knowledge described above, the effect of para (c) is that it must be asked whether a reasonable person knowing what was known or ought to have been known to the worker would expect the further deterioration in fact suffered by the worker as something more probable than not. If the answer is no, para (c) is satisfied." 7 Sheppard JA stated that Giles JA preferred the approach adopted by Fitzgerald AJA. Sheppard JA prefers generally the approach adopted by Giles JA. 8 The defendant did not submit that the plaintiff did not have a case for the election to be revoked. The plaintiff was only a very young man and it is my view that as at October 1997 a reasonable man would not have had cause to believe that the material deterioration in his back would have occurred. At the time of the election the plaintiff's loss of permanent use of his back was assessed at 10%, it is now assessed at 40%. However a reasonable person who was apprised of the above information as at October 1997 would not have expected a further material deterioration that was in fact suffered by the worker as something more probable than not. The test in paragraph (c) is satisfied. The plaintiff has satisfied the test in s 151A(5)(a), (b) and (c). Accordingly leave should be granted to revoke the election made by the plaintiff in about October 1997. 9 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." 10 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, or as it has often been expressed, that justice is best served if the applicant be given leave to proceed. The starting point for examination of the way in which this discretion should be exercised is Salido v Nominal Defendant (1993) 32 NSWLR 524. This is a case concerning s 52(4) of the Motor Accidents Act 1988 but it is in similar terms to s151D of the Workers Compensation Act 1987. The principles have recently been considered by the Court of Appeal in Holt v Wynter [2000] NSWCA 143, 26 June 2000 and Seib v Morton [2000] NSWCA 139, 26 June 2000. At 532 Gleeson CJ in Salido set out the principles to be considered in the exercise of the discretion. 11 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 him 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." 12 The plaintiff submitted that he has discharged the onus and established that it is fair and reasonable to extend time in which the action should be brought. Or to put it another way, the plaintiff has established that in all the circumstances, justice is best served by exercising discretion in favour of him. The defendant opposes the orders sought. The defendant conceded that for the purposes of this application, the plaintiff had a real case or prima facie case to advance in negligence against the defendant. It is my view that the plaintiff has a real case to advance. The defendant did not submit that it suffered actual prejudice. 13 In accordance with the principles espoused in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1, it is necessary to examine the prejudice caused to the defendant by the delay. I accept that with the passing of four years since the accident occurred there will be some presumptive prejudice. The defendant did not submit it suffered actual prejudice. 14 The dirt trays, both large and small, are still available. The plaintiff has said that the system of inspecting poles has changed since March 1997 but he has described the system in place when the accident occurred and the new system of work. Since he made his first claim for workers compensation, which was shortly after the first accident, he has been examined by the defendant's doctors including Dr Huntsdale and Dr McGee. These doctors are still available and practicing in the area. The plaintiff has supplied names of his fellow employees and given their addresses and telephone number. There are eight. Only one of the witnesses may not be able to give evidence. Mr Bookram has suffered a brain tumour and his memory is not too good. The plaintiff completed a claim form and submitted them to his employer shortly after each accident occurred. He has undergone continual rehabilitation so the defendant has been aware of the plaintiff's physical condition since the accidents occurred. 15 The first accident occurred on about 13 March 1996. The summons was filed on 15 February 2000. The limited period expired on 13 September 1999 (as an additional six month period has to elapse after a notice issues pursuant to s 151C). The proceedings are approximately five months out of time. The proposed statement of claim has been filed and served. 16 The plaintiff's explanation for delay is that he thought that his back condition would improve after surgery in 1996. For some time in 1997 his back condition did improve and he was able to increase the number of tasks he could perform at work. After the further injuries to his back in February 1998, his condition did not improve, although the plaintiff continued to work on restricted duties. It was on 10 February 1999 that the plaintiff first sought legal advice from a solicitor. 17 The plaintiff is a relatively young man of 39 years of age who has suffered a severe permanent back injury. He cannot return to his pre-injury duties. He may have to undergo a spinal fusion in the future. If the plaintiff is successful in his claim he will be entitled to a substantial award of damages. 18 After taking into account all of these matters I am not satisfied that the chances of the defendant obtaining a fair trial are unlikely. Nor am I satisfied that the defendant will suffer significant prejudice. The plaintiff has discharged his onus and satisfied me that it is just and reasonable to grant leave to commence proceedings. 19 Costs are discretionary. It is my view that the appropriate order for costs is that costs be costs in the cause. 20 The orders I make are:

(1) Leave is granted to revoke the election made on about 15 October 1997.

(2) Leave is granted to the plaintiff to commence proceedings for damages against the defendant for injuries suffered in work accidents on 13 March 1996, 18 November 1996 and February 1998 pursuant to s 151D of the Workers Compensation Act 1987.

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

(4) Costs are costs in the cause. **********

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