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.