The plaintiff by Notice of Motion filed on 28 September 2016 seeks orders under s 151D Workers Compensation Act 1987 (NSW) ("the Act") for an extension of time nunc pro tunc to continue the proceedings commenced on 22 July 2016 against the defendant, his former employer.
The relevant factual material is set out in the affidavits of the plaintiff, sworn 20 July 2016 (Exhibit A) and his solicitor, sworn 23 September 2016 (Exhibit B).
The defendant has not filed any affidavit material and claims presumptive rather than actual prejudice.
[2]
The factual background
The plaintiff is a primary school teacher. At the time of the accident, he was the Relief Deputy Principal. In the course of his teaching duties, he was required to hang art work from metal bars attached to the ceiling of his classroom. In order to reach the ceiling, he used the only equipment available, namely a small wooden ladder which he placed on a desk to reach the required height. He did so on several occasions but on 4 August 2010, the ladder slipped, and he fell heavily to the ground, injuring his knee. He had previously broken the same leg in 1993 while playing cricket.
A dedicated professional, the plaintiff only had one day off and returned to work until 29 July 2011, when he took leave of absence from work until the beginning of the 2012 school year. He did his best to perform his duties. In May 2013 he transferred to Pennant Hills Primary School where he remained until he could no longer continue, ceasing work on 23 December 2013.
The plaintiff consulted another firm of solicitors in late 2012 and a claim for whole person impairment was lodged on 21 December 2012. That claim was settled for 16% whole person impairment on 18 March 2013. On 22 April 2014 the plaintiff and defendant agreed as to the plaintiff's entitlement pursuant to s 67 of the Act for pain and suffering and on 24 April 2014 a s 281/282 notice was served. However, the firm of solicitors the plaintiff had consulted was obliged to withdraw as a result of conflict of interest and it was not until 21 August 2014 when the plaintiff first consulted his current solicitors.
Counsel for the defendant points to the absence of any affidavit evidence from the plaintiff's former solicitors to explain their delay in appreciating the conflict of interest and advising the plaintiff of it.
What is the impact of the failure by the plaintiff's solicitor to provide timely advice as to the three year limitation period? Whether that should be "sheeted home to the plaintiff" is a vexed question: New South Wales v Judd [2003] NSWCA 355 and Coal & Allied Operations Pty Ltd (t/as Hunter Valley Operations (Howick Mine)) v Stringer [2003] NSWCA 271 at [35]-[37]. Independently of the question of sheeting home liability for oversights of this kind to the plaintiff (as to which see Smith v Grant [2006] NSWCA 244), I consider that the problems of confidentiality in relation to conflicts of interest would amount to a sufficient explanation for the purposes of this application.
Between August 2014 and March 2016, the plaintiff's current solicitors took over the file and obtained updating medical evidence. They had already obtained an expert report on liability from Mr David Cockbain dated 30 June 2014. The pre-filing statement was served on 17 March 2016, at which date time stops for limitation purposes.
The defendant has had the benefit of Mr Cockbain's report as well as reports from medical practitioners and has served a factual investigation dated 6 August 2014. Consequently, the only prejudice to be identified is presumptive.
[3]
Whether leave should be given to extend time for bringing proceedings
The relevant provisions of s 151D are as follows:
"151D Time Limit for Commencement of Court Proceedings against Employer for Damages.
(1) (Repealed)
(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 three years after the date on which the injury was received, except with 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."
I also note the provisions of s 151DA, under which time stops in relation to a number of situations material to this application, with the result that the parties agree the relevant period of delay is 128 weeks.
The general principles applying to applications of this kind have recently been reviewed by McColl JA in Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 at [43]-[52], where her Honour notes that s 151D(2) does not spell out specific criteria, but confers a broad discretion (at [44]-[45]).
The nature of that discretion was explained by Basten JA in Strasburger Enterprises Pty Ltd (t/as Quix Food Stores) v Serna [2008] NSWCA 354 as follows:
"[52] With respect to this and similar provisions, which contain no express indication of the matters to be considered in relation to an application to extend time, "the limits of the discretion are to be found in the subject matter, and the scope and purpose of the statute": Salido v Nominal Defendant(1993) 32 NSWLR 524 at 430F (Gleeson CJ); see also [535-539] Kirby P and [541] Powell JA. Subsequently, the High Court provided guidance as to the correct approach in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, although the majority judgments did not speak in identical language and were concerned with the limitation provision which provided some guidance as to factors to be taken into account. As explained in Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 at [96] by McColl JA:
"Brisbane South is authority for the proposition that an application for an extension of time under limitation legislation should be refused if the effect of granting of the extension would result in significant prejudice to the potential defendant … "Significant prejudice means such prejudice as would make chances of a fair trial unlikely … For a trial to be fair, it need not be perfect or ideal …"""
As McColl JA went on to note in Howley v Principal Healthcare Finance Pty Ltd at [49], the question of presumptive prejudice is explained in Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 at [78], where Ipp AJA stated:
"[78] McHugh J (at [552]) identified four broad rationales for the enactment of limitation periods, generally. These 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."
At [87] of Itek Graphix Pty Ltd v Elliott, Ipp AJA went on to note:
"[87] In my opinion, in limitation legislation such as s 151D(2) of the Workers Compensation Act, where a broad discretion to grant leave to sue after expiry of the limitation period, the general question that has to be asked is what is fair and just (per Gleeson CJ in Salido). Or, what does the justice of the case require (per McHugh J in Brisbane South Regional Health Authority). In answering such a question the justice of the case must be evaluated by reference to the rationale of the limitation period that has barred the action, including the four rationales to which McHugh J referred."
McColl JA went on to note in Howley v Principal Healthcare Finance Pty Ltd at [50]:
"It should be borne in mind, as Whealy JA (Hodgson and McColl JJA agreeing) explained in Nominal Defendant v Harris [2011] NSWCA 70; (2011) 57 MVR 492 (at [45]), that Ipp JA's comments "were intended to provide useful and cautionary guidance as to the way a court exercising a broad statutory discretion to extend a limitation period will ordinarily respond [but] do not ... supplant the language of the statute [nor] ... override the broad discretionary exercise entrusted to a court to take into account all the relevant circumstances in determining what is fair and just.""
As noted above, these proceedings could not be commenced until after the agreement of 18 March 2013, by reason of s 313 Workplace Injury Management and Workers Compensation Act 1998 (NSW) and the period of delay was 128 weeks. Taking that into account, and noting that the pre-filing statement (which stops time) was served on 17 March 2016, the period of delay is, Mr Menary informs me from the bar table, about eight months.
[4]
The issue of presumptive prejudice
As to presumptive prejudice that arises by reason of delay, the defendant relied on the generally accepted principles, which I note have been summarised by Tobias JA in Hornby v The Nominal Defendant [2007] NSWCA 222 at [58]:
"The principles relevant to the power of a Court to make an order extending time if it thinks such an order is just and reasonable in all the circumstances were articulated in Smith at [122]-[129] by Santow JA, with the agreement Handley and Basten JJA the latter differing from the majority as to their application to the facts of the case. They can be summarised in the following propositions:
(a) Since the purpose of limitation periods is to preclude stale claims which a Defendant would find difficult to defend given the effluxion of time, it is prima facie prejudicial to a Defendant to allow the commencement of an action outside that period. This is because the Defendant suffers presumptive prejudice where an extension of the limitation period is granted.
(b) Although it is a truism that where there is delay the whole quality of justice deteriorates and that such deterioration may in some cases be palpable such as where a crucial witness is dead or an important document has been destroyed, in other cases that deterioration in quality is not recognisable even by the parties. As the United States Supreme Court pointed out in Barker v Wingo (1972) 407 US 514 at 532, cited by McHugh J in Taylor at 551: "What has been forgotten can rarely be shown".
(c) Nevertheless, presumptive prejudice of itself may not disentitle the Plaintiff to the leave sought. Although it may be irrelevant that an order extending time would not put the Defendant in any worse off position than it would have been if the action had been commenced within, but towards the end of, the limitation period (Taylor at 554), once the potential liability of the Defendant has ended then its capacity to obtain a fair trial, if an extension of time were granted, is relevant and important. To subject the Defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the Plaintiff of the right to reinstate the lost action. This will often be the case where the Plaintiff is without fault and no actual prejudice to the Defendant is readily apparent. The position is different where a Defendant, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact: Taylor at 555.
(d) Where actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the Defendant has proved the fact or the real possibility of significant prejudice: Taylor at 555.
(e) "Significant prejudice" means such prejudice as would make the chances of a fair trial unlikely. However, for a trial to be fair, it need not be perfect or ideal."
[5]
Conclusions concerning the discretionary matters
The plaintiff bears the onus of proving that it is fair and just for a limitation period to be extended and the defendant bears the evidentiary onus of proving actual prejudice beyond that presumed to occur by reason of effluxion of time.
Consideration of the justice of the case will invariably involve an analysis of the reasons for the delay and an examination of the diligence (or otherwise) of the plaintiff. As is set out above, I am satisfied that the plaintiff has provided sufficient explanations of these.
I am also satisfied that the presumptive prejudice relied on by the defendant does not amount to "significant prejudice" (as defined in Hornby v The Nominal Defendant, in [45] above).
The plaintiff needs to show that he has a viable cause of action so it would not be futile to make the orders sought: Yu v Spiers [2001] NSWCA 373 at [34]-[55]. There is no challenge to the plaintiff's claim that there is a triable issue or to the quantum of damages.
There has been a satisfactory explanation for the delay. I am satisfied that a fair trial of the issues in this case can take place, notwithstanding the effluxion of time. I grant leave to the plaintiff to commence proceedings, nunc pro tunc, by way of the Statement of Claim filed on 22 July 2016.
At the request of the parties, I made no order as to costs.
[6]
Orders
1. Pursuant to s 151D Workers Compensation Act 1987 (NSW), the time for commencement for these proceedings is extended to 27 July 2016 nunc pro tunc.
2. No order as to costs.
3. Proceedings listed for directions before the Registrar on Thursday 19 January 2017.
[7]
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Decision last updated: 12 December 2016