Ward v Les Russell & Son Pty Limited and Warkworth Mining Limited

Solicitors: Shine Lawyers - Plaintiff Sparke Helmore - First Defendant Barry Nilsson Lawyers - Second Defendant File Number(s): 2018/190993 Publication restriction: Nil

INTRODUCTION

1. Before the Court are three notices of motion for determination.

The plaintiff's notice of motion

1. The plaintiff's further amended notice of motion of 3 August 2020 seeks the following orders: 1. Pursuant to section 151D(2) of the Workers Compensation Act 1987 the Plaintiff be granted leave to commence these proceedings nunc pro tunc. … 6. In the event that the plaintiff is found to have made an election within the meaning of that term in s 151A of the Workers Compensation Act 1987 (NSW), leave be granted to the plaintiff to revoke that election pursuant to s 151A(5). 7. The costs of this motion be costs in the cause.

The first defendant's notice of motion

1. The first defendant's notice of motion of 19 September 2019 seeks the following orders: 1. That the Plaintiff's Statement of Claim be struck out pursuant to Rule 14.28 of the Uniform Civil Procedure Rules as it has been brought: (a) more than three years after the date on which the Plaintiff received his injury in breach of s 151D(2) of the Workers Compensation Act, 1987; and (b) in breach of Section 151A(2) of the Workers Compensation Act 1987, as it applies to coal miners in that the Plaintiff has elected to receive permanent loss of [sic] compensation under that Act and is not entitled to both permanent loss compensation and damages in respect of his injury. 2. Such further or other orders as the Court thinks fit. 3. That the plaintiff pay the First Defendant's costs of this Notice of Motion.

The second defendant's notice of motion

1. The second defendant's notice of motion of 20 September 2019 seeks the following orders: 1. Pursuant to Section 61 of the Civil Procedure Act 2005 (NSW) and rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW), the following question be determined separately from any other question in the proceedings save for orders 1 and 6 of the plaintiff's amended notice of motion filed 22 July 2019, and before any further trial of the proceedings: (a) Is the plaintiff's claim for damages against second defendant out of time and not maintainable pursuant to section 50C of the Limitation Act 1969 (NSW)? 2. The plaintiff pay the second defendant's costs of and associated with this Notice of Motion.

THE EVIDENCE

1. The entirety of the documentary evidence was contained in a Court Book which was admitted without objection. [1]
2. The plaintiff read his affidavits dated 13 February 2019, 25 November 2019 and 31 July 2020, along with the affidavit of Heidi Lewis dated 9 May 2019.
3. The first defendant read the affidavit of Michael Moore dated 19 September 2019.
4. The second defendant read the affidavit of Navjeet Kaur Tut dated 7 November 2019.

The plaintiff's injury in 1998

1. In September 1998 the plaintiff was employed as a fascia gutter fixer for a company known as NFAGS and suffered an injury whilst carrying heavy plant on an access way (the 1998 accident). [2] He subsequently made an application for workers compensation payments and was paid weekly amounts as well as medical expenses. [3]
2. Following the 1998 accident the plaintiff consulted Mr Manion, a solicitor who then practiced at a firm known as MRM Solicitors. Having done so, the plaintiff brought common law proceedings for damages against his then employer. [4] He agreed that under the guidance of Mr Manion he brought those proceedings because he asserted that the 1998 accident was his employer's fault. [5]
3. Following a mediation, those proceedings were settled on the basis of the defendant paying a sum of $250,000.00, of which the plaintiff received an amount of $185,000.00. [6] Whilst the plaintiff agreed that he understood that this amount had been paid to him because his employer had admitted that its negligence had caused his injuries, he maintained that he thought that the sum received represented payment for medical expenses. [7]
4. As to his understanding of the difference between workers compensation payments and common law damages, the plaintiff was asked: [8] Q. As a result of that unfortunate event, you became aware of the existence of the difference between workers compensation as weekly payments and medical expenses and damages for negligence because of the payment of a very large sum of money; is that correct? A. Ah, yes. The best I can recall, yes.
5. The plaintiff agreed that Mr Manion had retained counsel in those proceedings, and that counsel was present at the mediation. [9] The plaintiff reiterated that he had trusted his legal representatives to guide him in the right direction in connection with those proceedings. [10]

The plaintiff's employment with the first defendant

1. The plaintiff commenced working for the first defendant in 2008 as a plant operator, following which he progressed to the position of senior plant operator. [11] In each of those positions, he operated various types of machinery in an open cut coal mine, including a front end loader, an excavator, a backhoe, and a dump truck.

The subject accident

1. On 30 April 2009 the plaintiff was injured whilst employed by the first defendant (the subject accident). The plaintiff explained the circumstances of the subject accident in his affidavit of 13 February 2019: [12] [18] On 30 April 2009 I was operating a Volvo 25T which was being loaded by an excavator. The Excavator Driver was Peter McCluskey. [19] At around 2-2:30pm I was loaded by Peter and proceeded to drive to the dump site which had been recently bulldozed by Ian Clarke. [20] I positioned myself to unload the truck and went to lift the tray to unload the truck. As the tray lifted, I noticed that the front left hand side of the truck was lifting off the ground causing the truck to lean to my right. [21] As a truck began to lift I activated the lever to bring the tray back down as I was concerned that the truck would tip over. Usually when the tray comes back down it comes down slowly, however on this occasion as the truck tray was still loaded with the sticky mud, the tray came down suddenly causing me to be pushed down into my seat. [22] After the tray had come down I felt a pain in my neck and lower back. I was most concerned as I thought that the truck had been damaged and so I carefully got out of the truck and inspected the truck from the ground. I could not see any damage, however I could see a large lump of clay or rock up near the headboard of the truck which had not been dumped when I raised the tray. [23] I tried to call my boss Ian Clarke (Dude) however he would not answer his telephone so I left a message for him to call me back. [24] As the truck still had most of its load, I got back into the truck and raised the tray again. This time the load released and was dumped. [25] I then drove the truck back to our safe park up near where we were getting loaded and parked up as I was experiencing further pain in my neck and lower back and could not continue with my regular duties. [26] I got out of the moxyA25C (dump truck) to check things were okay around the truck, however I found it difficult to walk, so I went to sit in the Russell's dual cab canter until it was time to leave the site for the day.
2. The plaintiff expanded on those circumstances in his affidavit of 31 July 2020: [13] [9] The excavator driver who loaded my truck immediately prior to the occurrence of my accident was Mr Peter McCluskey. [10] Mr McCluskey started to load my truck. As he tipped the first load into the back of the truck, he brought the arm of the excavator over the cabin of the truck. This was not allowed because of the potential for items for [sic] fall on the cabin or the arm to fail. I radioed Mr McCluskey and we had an exchange with words to the effect of the following: Myself: "Don't take the arm over the top of my cavern". McCluskey: "Fuck off, Cunt. You wouldn't know. Just to drive the truck." [11] As Mr McCluskey continued to load the truck I could feel by the vibration and rocking of the truck that he was packing the load down. This was not something that an excavator had ever done before during my time driving at the site. [12] I radioed Mr McCluskey and said words to the effect of: Myself: "Stop fucking squashing the load down." McCluskey: "Just shut up and drive the truck." [13] There was no monitoring of the loading at the site. The excavators were responsible for the loading and the drivers were just expected to cart the load given to them by the excavator. [14] Once Mr McCluskey had finished filling the tray I started to drive to the dump site. I could feel that the truck was more heavily loaded than usual. The drive from the fill site to the dumpsite involved inclines, and the performance of the truck was more laboured than usual and was moving at snails pace. [15] The truck drivers on the site were in regular contact by radio. As I proceeded to the dump site I was passed by another truck; it was either being driven by Rick Copeland or "Rolls" to the best of my recollection. "Rolls", whose full name I think is Peter Rolls or Peter Rolands. As I was passed I heard words the effect of: Be careful with that load Robert and go slow. You've got a big blob of clay right up against your headboard. You don't want it falling out upon the road. [16] As I proceeded up toward the dump site I was able to see the shadow of my truck on the ground beside it. I could see that there was a large blob of material right up against the headboard sticking up above the sides of the tray. The loads on our trucks were meant to be loaded to or below the height of the side of the tray. [17] When I arrived at the dumpsite I was concerned about what would happen with the load. However: (a) my truck did not have any instrument for measuring the weight in the tray; (b) there was no weigh bridge to measure the weight, and (c) there was no procedure in place for who a driver could contact, or what they could do, if they were concerned about a load. The expectation was we would simply get on with dumping whatever was put in our trade by the excavators. [18] I decided to proceed with my job with caution. It was then the events set out in paragraphs 20 - 22 of my affidavit of 13 February 2019 took place. [19] I telephoned Ian Clarke, who went by the name "Dude" the Truck Supervisor after the accident, he was not on site that day. The phone went to message bank but I left him a detailed message regarding the accident. [20] Paragraph 19 of my affidavit of 13 February 2009 contains an error. The dumpsite had not been bulldozed, but levelled by a grader. The grading had not been very effective. Whilst the dumpsite looked flat, it had areas of water and was in fact very bumpy to drive across.
3. The plaintiff was cross-examined about the subject accident as follows: [14] Q. You had the accident. The accident involves the other side, the non-driver's side of the truck being elevated when you were unloading, and in your endeavour to fix it up, you came crashing down. Is that an accurate reflection of what happened to you? A. Yes. The back of the truck also going over onto a rolled area on my right hand side. The vehicle lifted up on the left hand side whilst the right hand side sunk down in, in through the soil from where the stockpile had been levelled. Q. You thought that this all came about because of the overloading of the truck, particularly with the large blob of material? A. Correct. Q. If that was the case, then that was Mr McCluskey's fault; is that correct? A. I believe so, yes. Q. You believed that it was his fault immediately after you had had your accident; is that correct? A. I shared those concerns on the day about Mr McCluskey. Q. You thought it was his fault that that had happened; is that correct? A. Yes; correct. Q. You thought it was also bad that there were no procedures in place whereby you could notify somebody that you had a concern that your truck was overloaded; is that correct? A. Ah, I did try, I did try to contact the truck supervisor who was Glen Clark who was also the same chap that prepared the stockpile. He was our truck supervisor. He was the man that report to. Ah, from there, once the accident had happened, our procedure was from what our toolbox (sic) might have told us, was you are to contact your supervisor if you have an accident. I did so. He failed to see me prior to leaving the mine site or even calling him(sic). I never got to see him, my truck supervisor, until I returned to Les Russell's um, um plant at Braxton. Q. That evening you went to the local hospital? A. Correct. Q. After that, turning a long story into a short one, you had a very long period of ongoing problems with your neck and your back; is that correct? A. Correct. Q. And over a lengthy period of time, you saw a Doctor Schwarzer, and received a large amount of treatment; is that correct? A. Correct. Q. All of this, in your mind, was because of someone's fault; is that correct? A. Correct. Q. This was pretty similar to what had happened to you back in 1998, wasn't it? A. Nothing of the kind. Nothing alike. Q. What I mean in that sense was - it was not a very good question to put to you - but in 1998 you knew your employer or someone caused you an injury, and you took steps to get damages for it. On this occasion, you knew that your employer or one of his employees or someone else who controlled the mine site had been negligent, and you were injured and you knew that you could claim damages for that; is that correct? A. No, that's not correct. Q. What's the difference? A. What's the difference? Ah, ah, I put my faith and trust in Paul Manion and MNM, and what caused it was on his advice - and it was with Ross Lindgren, even though Ross Lindgren knew my situation, there was no other advice handled (sic) except for I am entitled to wages and medicals up until retirement age, and that I can make multiple claims as - if there's, um, more, more, ah, procedures to be carried out.
4. The plaintiff agreed that at the time of the subject accident he was aware that the first defendant was not operating the entire mine site. He was asked: [15] Q. You knew on the day of this accident that when you work ‑ went to work at the mine site, that it was not your employer who was running the entire mine site, didn't you? A. Correct. Q. You knew that it was a Rio Tinto mine site that Rio Tinto was running. Correct? A. Correct. Q. And you knew that Rio Tinto had people on the mine site who effectively were running the mine. True? A. Correct.
5. In relation to the actions of Mr McCluskey at the time of the subject accident, the plaintiff was asked: [16] Q. One of the things that he did when loading your truck on this day was to bring the arm of the excavator over the cabin, that is true? A. Correct. Q. And you knew that in his doing that, that was a breach of the site safety rules and that that was not allowed, true? A. True. Q. You raised a complaint with him about his breach of the site safety rules over the radio, correct? A. True. Q. That was because you thought that what he was doing might be unsafe and in fact might put you in a position of danger, correct? A. Correct. Q. So you knew or believed that it was important for him to listen to any complaint you had about your safety and a breach of the site rules? A. Correct. Q. And you record in para 10 what he said in response to your complaint about his breach of the site rules and in effect - my words not yours or his - that he was not interested in the slightest in your complaint, was he? A. No, however he did change the way he proceeded to finish the load. Q. After you made that complaint, he stopped bringing the arm of the excavator over the cabin of the truck, is that what you mean by that? A. Yes. Q. But in your mind his failure to follow the site rules - I put it this way - the damage had been done even though he stopped doing it that way, true? A. True. Q. The next week, you asked him to stop squashing the load down and he told you to just shut up and drive the truck, true? A. Correct. Q. That was another occasion where you raised your concern that he was operating unsafely and that he was not interested in what you were saying? A. Correct. Q. That was another failure by him, in your mind, true? A. Yes, true. Q. These things that he was doing were, or would have been, observable to your knowledge by anyone who was watching this operation, true? A. True. Q. It would have been easy for anyone observing this to tell that he was breaching the site safety rules and putting you in danger, true? A. True. Q. You say in para 13 there was no monitoring of the loading at the site and that the excavators were responsible for loading - the drivers just expected to cart the load, do you see that? A. Yes. Q. That is a complaint that you made including about Rio Tinto's job, as you understood it, to properly supervise the safe operations of this site isn't it? A. I do. Peter Saunders had already come around and signed off on the paperwork and also in regards to him loading the truck, that's - yeah - it was the first time I'd ever worked with him as an excavator and operator. Q. One of the complaints you make about Rio Tinto, now Warkworth, in this case in effect is they did not offer an appropriate system of supervising this conduct at the site, that's right isn't it? A. Yes. Q. That was a complaint in your mind that you had and knew about back at the time of the accident, that is that Rio Tinto had failed to supervise the unsafe work of Mr McCluskey, that is true isn't it? A. True. Q. That was in your mind from the date the accident occurred right through to the time you first spoke to Mr Manion in May 2011 about this accident, true? A. Sorry, could you repeat that again? Q. I will. Your criticism of Rio Tinto was failing to properly supervise and permitting Mr McCluskey to operate in this unsafe way, was in your mind when you spoke to Mr Manion in May 2011, true? A. True, yes. Q. Even though you at that time blamed Les Russell and Mr McCluskey for your accident, you also thought that it was in part the fault of Rio Tinto for failing to supervise an unsafe person on the site, that is right isn't it? A. Correct and also the manner of the way that the dumpsite had been prepared by a grade are [sic], not a bulldozer. Q. Just tell his Honour about that. As I understand what you are saying, there was criticism you had of Rio Tinto in that area? A. That comes back to the operation of our work site supervisor, truck supervisor-- HIS HONOUR Q. You said - you dropped out? A. The work site supervisor carried out the preparation of the dump site - by operating a grader. It should be - I was unaware of this until after the accident, that he had prepared it with a grader, as previously, the few years I was with them, it was always done by a bulldozer so they can track - the track can carry the weight of the dump truck. I didn't realise until I got on top that there was a difference in the dump site itself. Q. Do you say that that separate matter, the use of the grader and not the bull dozer was something that was a cause or contributed to the accident that you had? A. Correct. Q. You knew or believed at least as at the time you spoke to Mr Manion that Rio had failed in those two separate ways and those failures were a cause of your accident, true? A. True.
6. Following the subject accident, the plaintiff was treated by a number of medical practitioners. [17] His employment with the first defendant was terminated on 20 April 2011. [18]

The plaintiff's legal advice following the subject accident

1. On or about 6 May 2011 the plaintiff contacted Mr Manion who by this time had left MRM Solicitors and was practising at Rankin Nathan Lawyers. The plaintiff said that he was prompted to seek legal advice due to the termination of his employment and also because his wife had suggested that he do so. [19] In terms of his initial meeting with Mr Manion, the plaintiff said: [20] On or about 6 May 2011 I had a meeting with Paul Manion of Rankin Nathan Lawyers. I have originally called MRM Lawyers who had acted for me before and asked for Paul Manion. I was told that Paul had moved to Rankin Nathan. At the meeting, Paul told me something to the effect of: I no longer do workers compensation claims, but I know someone who can. Ross Lindgren, he'll look after you.
2. Although the plaintiff had referred in his affidavit to having had a "meeting" with Mr Manion, his recollection in cross-examination was that he in fact spoke with Mr Manion by telephone. [21] Irrespective of whether the consultation took place in person or by telephone, Mr Manion recorded the following instructions in a file note: [22] On 30 April 2009 at about 1.30pm you were driving a 25 tonne dump truck at Mr [sic] Thorley Warkworth Mine (Rio Tinto/Coal & Allied). Your job at that time was collecting and dumping top soil. At the time of your accident, a 30 tonne excavator was loading and damping down the load at the back of your truck and this was driven by Peter McLskey [sic] (who is also an employer [sic] of Les Russell and Son Pty Ltd) and is an experienced operator. The excavator driver had put in a load of wet top soil and clay which had the effect when damped down solidified [sic] the load in the back of the truck. You drove off then to the stockpile area where the truck was to be emptied and when you were there, you may [sic] a number of attempts to get the soil out of the back of the truck and two thirds of the soil (unknown to you) was caught up in the back of the truck and tailgate and the tipping tray of the truck as you went to lower it crashed down and you were thrown violently forward and down as the truck was rising and you had a severe whiplash type injury to your lower back and neck. You were fearful of the truck tipping over and you knew you had a serious injury to your lower back and neck so you carefully moved out of the area about 10-15 metres and you got out of the truck and you then saw the tailgate of the truck was stuck up with two thirds of the load still in the tray and stuck to the tailgate. You knew you had a serious injury and you carefully got out of the truck and you were limited in your movement and how you could walk. You eventually had to get back in the truck with great difficulty and was [sic] able to eventually also dump the rest of the load and then drive the 1.5kms back to the depot. You recently received a letter from your employer terminating your services due to the fact that you are unable to go back your normal work. You will supply us with a copy of that letter. You have been paid all your entitlements by Allianz Workers Compensation for your time off and also your medical and travelling expenses. You have not made any claim for section 66/67 benefits. We are to investigate making this claim for you. I generally spoke to Robert about his workers compensation entitlements and he seemed quite aware of what they were. I advised Robert that Ross Lindgren, a Director of our office, would be looking after his matter and he was happy with that.
3. The plaintiff was cross-examined about whether or not he told Mr Manion about the further detail of the subject accident which he disclosed in his affidavit of 31 July 2020. He maintained that he had done so. [23] He specifically denied the suggestion that he had not told Mr Manion about the lump of clay against the headboard of the truck [24] and also denied the suggestion that his affidavit of 31 July 2020 represented the first occasion on which he had disclosed such matters to anyone. [25] It was put to the plaintiff: [26] Q. So what I'm suggesting, Mr Ward, is that all of those concerns that you set out in your last affidavit about the truck not having any instrument for weighing, there was no weighbridge, no procedure in place to have some other contact when you were concerned about a load; you did not convey those concerns to Mr Manion when you saw him in May of 2011, did you? A. I never saw Paul Manion. I never sat down with Paul Manion. I sat down with Ross Lindgren. Q. Okay. Well, when you spoke ‑ my mistake ‑ when you spoke on the phone to Mr Manion, you didn't convey any of those concerns. Is that correct? A. He cut me off in short, so I never got to tell him my full story, and he was going ‑ in good hands with Ross Lindgren. Q. You never conveyed those concerns to anybody in the two years up until that time, did you? A. That is incorrect.
4. The plaintiff agreed that in the two-year period between the time of the subject accident and the time that he spoke with Mr Manion he considered that his injuries had been caused by the fault of someone else. [27] He said that he had not sought any advice in that period because he was he was obtaining medical treatment in the hope of getting back to work. [28] He was later asked: [29] Q. And in the time between your accident and the time you spoke to Mr Manion, there was nothing to stop you making contact with Mr Manion or any other solicitor to talk about your accident. That's true, isn't it? A. Correct. Q. In that period of time, about a little over two years, you knew that the accident that you'd had had had a significant impact on you. True? A. Correct. Q. You'd had periods of light duty at work? A. Correct. Q. You'd been paid some compensation and treatment expenses by the workers compensation insurer. True? A. Correct. Q. And you knew from your previous claim that it was possible for you to go and speak to a solicitor and get some advice about whether you had a claim for damages. True? A. True. Q. And even though you go to lawyers and get some advice, you know, don't you, and knew back then, that it's ultimately your responsibility, if it's your claim, to pursue or advance your own interests? That's right, isn't it? A. No. Q. And you should have, if you were truly interested in advancing your own interests or protecting your own rights, gone off and got some legal advice in that two‑year period, shouldn't you? A. I was going through treatments with the expectation that just maybe I get the right treatment and would be able to return back to work. So looking for a solicitor wasn't a priority; getting healthy was.
5. The plaintiff agreed that he told Mr Manion that he knew from the moment of the subject accident that he had suffered a serious injury to his lower back and neck. [30]

The plaintiff's claim for lump sum compensation

1. The plaintiff said that Mr Lindgren advised him as to his entitlements to lump sum compensation. [31] A claim for compensation was made by the plaintiff on 22 June 2011 [32] supported by various statements. [33] There was a dispute as to the level of the plaintiff's whole person impairment which was referred to an approved medical specialist, [34] Dr Faithfull, who provided a report assessing the plaintiff's level of whole person impairment at 10%. [35]
2. In respect of his claim for compensation, the plaintiff said: [36] [66] I do not recall signing a claim for permanent impairment compensation, however I understand that the file contains a permanent impairment claim that was made by Rankin Ellison [sic] on my behalf. I recall having 2 or 3 appointments in the office with Ross. On one of those appointments I recall having the following conversation: Ross: At the time of your injury, were you carting coal? I said: No, I was removing top soil for the drillers to come in so that they can blow the side out of the mountain to get the coal. Ross: If you had been carting coal you would come under a different award. Because you weren't carting coal, you weren't classified as a coal miner. [67] I recall another conversation that I had with Ross. I cannot remember if it was on the same day or a different day. To the best of my recollection I had the following conversation: Ross: You are entitled to a claim as you have gone through so many treatments so far and there is an element of pain that you are entitled to. We will make a claim to get you some monetary support. I said: I have future treatments booked in, how will this affect [sic] the future treatments? Ross: It doesn't affect it. You can make multiple claims, we are only claiming for what has been done to date. If you have ongoing treatment you can claim after that.
3. The fact that Mr Lindgren had advised the plaintiff in those terms was not challenged. However, the plaintiff was asked about his understanding of the correctness of such advice: [37] Q. ...... When he gave you that advice, even though you were working at a coal mine, that there was a difference in the way you might be able to pursue legal rights, which depended on whether you were physically carting coal as opposed to doing what you were doing, did you think that that sounded like it was right or sensible? A. I was - Paul Manion had guided me, bought my trust at that time, that that was the right thing to do was follow their lead. Q. Sorry - you go on-- A. Yeah, just that Nathan Rankin - just the trust and the course it went - yeah - like I say, I was still hopeful in getting back to work. Q. Mr Manion referred you to Mr Lindgren to give you some advice about your claim, correct? A. Yes, correct. Q. But I am asking you, when Mr Lindgren said the law would treat you differently because you were not physically carting coal, whether you had any concerns about whether that sounded right or not? A. Yeah, well, I also mentioned to him - from what I recall, I said we are also dealing with silt dams and that's also recovering coal and it goes straight to the wash plants - he said, not unless I had been carrying coal, so not a coal miner. HIS HONOUR Q. Mr Ward, the question you are being asked is: Did you have any concerns about the advice that you were given in that respect? A. No.
4. The plaintiff was then asked: [38] Q. You told his Honour a little earlier today, when you tried to tell Mr Lindgren about the events which led up to the accident that, in effect, he cut you off - my words not yours - and did not seem interested in those events. Do you remember saying something like that? A. Yes. Q. We know, I think you have agreed with me, what you knew or believed was that there had been a very serious breach by both Les Russell and Rio Tinto of the site safety rules in the period leading up to your accident, on the day, true? A. My apologies, could I get you to state that again? Q. I will ask you again. I thought you agreed with me that you thought what Mr McCluskey and also what Rio Tinto had done immediately prior to your accident, was a serious failure to follow the site safety rules and that that put you in jeopardy, do you agree? A. Yes. Q. Yet as I understand it, when you spoke to Mr Lindgren, who was meant to be looking after your rights, you say he was not interested in finding out from you those details about what had happened prior to your suffering the injury at all, true? A. True. Q. Didn't you think that that sounded like bad advice that your lawyer was not even interested in knowing about these serious failures by Rio and Les Russell? A. Like I say, when he brought that to my attention about carting coal, I automatically thought he was right. Q. Did you have a concern that your lawyer did not appear interested in these serious breaches of site safety that you knew or believed when you were speaking to him about your case? A. Yes. Q. That is, you were concerned about whether he was giving you the right advice or you were not? A. It annoyed me but I thought my hands were tied, what else could I do? Q. One of the things I suggest you should have done is asked him to get an opinion or consult a barrister to see whether his view, about the fact that you were not physically carting coal, made a difference was right? A. I put my trust in him and that's the part that happened. Q. You did not at any point say to him, did you: Well, why is it that I have had this serious breach of site safety rules, that I have had this serious injury, that I cannot get the sort of damages I got in my 1990 work accident? A. Yeah, it's hard for me to recall but, yeah, it's just hard for me to recall as of when - played a big part in my mental health, so, I'd been led the wrong way. Q. You could have gone back to Mr Manion and raised any concerns about the advice you are getting with him? A. He no longer handles workers' compensation claims - on the phone from there - just a phone call. Q. You could have got a different opinion from a different firm of solicitors about whether what you were told was right? A. I never thought I had to. I was advised I would be paid up until retirement age by Ross Lindgren and my medical and everything would be covered and he would help me bring forward a payment for pain and suffering and that's the path he took and I entrusted him with doing the right thing by me. Q. When he told you about the pain and suffering payment you know when that arrived it was about $26,000-odd, correct? A. At a guess. Q. Didn't you think at that point something might be going very badly wrong, believing what you believed about the failures by Rio Tinto and Les Russell and knowing what you knew about how bad your condition was? A. My life path was following the recommendations from Ross Lindgren - I did not think I had anything further that I could claim on until they approached-- Q. It was around the middle part of 2012 that it appeared like the work Mr Lindgren had done for you came to an end, true? A. Yes, true. Q. A few months later you had a concern about whether the workers' compensation insurer was doing the right thing in paying your expenses, remember that? A. True. Q. You contacted the firm again at that point because you were worried that the workers' compensation insurer was not treating you fairly or properly, true? A. To the best I can recall, true. Q. You contacted the firm because you wanted some legal advice about your rights, against the workers' compensation insurer about that concern you had, true? A. True. Q. You had a belief Mr Lindgren had been doing his best to give you the right and correct advice to pursue your rights against the insurer, true? A. Correct. Q. When you called up the firm to get some advice to deal with your complaint about the insurer, it is right isn't it what you were told was Mr Lindgren was now acting for Allianz, the workers' compensation insurer, is that correct? A. True. Q. So you understood what you had been told by the person at the firm that you had been using for advice, is that your lawyer by the latter part of 2012 moved over to start acting for the insurer on the other side of your dispute, is that true? A. Correct. Q. And because he had moved over and was acting for them now he could not give you advice anymore? A. That's what I had been told, yes. Q. Whatever hope you had of getting any advice, good bad or indifferent from your solicitor Mr Lindgren, by the latter part of 2012 to your mind had come to an end because he was acting for the other side of your dispute, true? A. That's what I had been told, true. Q. Even if not before, by this point you should have appreciated, shouldn't you, that it was necessary for you to go off and get a second opinion to see whether what your lawyer had been telling you was the right thing, that is true isn't it? A. I don't know - more focused on my health. Q. By the end of 2012 it is right to think that you were still without employment? A. Correct. Q. Your physical injuries and disabilities were not any better, true? A. True. Q. You still had complaints about the way you were being treated by the insurer, true? A. True. Q. You knew all of those things about your belief about the fault of Rio Tinto and Les Russell about the accident, true? A. Well, could you repeat that again please? Q. I withdraw that. I will ask a different question. You believed that you had very, very serious injuries arising from the accident? A. Yes. Q. You believed that those injuries were caused by the fault of both Les Russell and Rio Tinto? A. Correct. Q. And you knew that the person who you had been getting advice from about your rights was actually now acting for the insurer for your employer, true? A. True. Q. Why didn't you get an opinion from another solicitor then, to find out whether in fact you had a good case against Rio Tinto or Les Russell? A. I just followed the path from what I was recommended that I could receive payment and medical attention till the age of retirement; and yes, so, from still - I think it was one year or post-retirement - that's the advice I got from Ross Lindgren. Q. In the period after the conversation I was asking you about, where you were told Mr Lindgren could not give you any advice anymore and throughout the year 2013 and 2014 your physical disabilities, to your mind, got worse rather than better, is that fair? A. True.

The resolution of the plaintiff's claim for compensation

1. On 20 February 2012, the plaintiff attended a teleconference at the Workers Compensation Commission to finalise his claim for compensation arising from the subject accident. It was resolved that his entitlement to compensation totalled $26,437.50. [39] A certificate of determination dated 21 February 2012 was issued [40] and a cheque for the payment of that sum was sent to Mr Lindgren's office on 6 March 2012. [41]
2. As to the resolution of his claim for compensation and the events that followed, the plaintiff said: [42] [86] At or about the time of the Teleconference, I recall Ross telling me that my claim had resolved and said something to the effect of: If there's anything else we can help you with, please let us know. [87] About this time I heard about the changes to the workers compensation legislation which meant that you could no longer bring a further lump sum claim if your condition got worse, or if you had further treatment. [88] I was not informed of any further rights I might have for workers compensation, common law claim or work injury damages claim. I was not told of any time limitations for bringing any claim. In fact I did not believe that there was any time limitation to bring a workers compensation claim. [89] I did not have any further discussions about whether I was a coal miner at any point in my workers compensation claim that I can recall and I understand the proceedings were brought in the Workers Compensation Commission on the basis that I was not a coal miner. [90] A few months after my workers compensation claim settled I called up Ross again as I was having trouble with Allianz not approving my hydrotherapy and gym membership which had been refused. I was told that Ross Lindgren was now representing Allianz as an insurer and could no longer act for me as it would be a conflict of interest for him. After this I didn't really know who to approach and was sick of fighting with the insurer. I did not seek any further legal advice until my partner Melanie approached Shine Lawyers in 2016.

The plaintiff's retainer of Shine Lawyers

1. The plaintiff said that throughout 2013 and 2014, following the settlement of his claim, he had: 1. not returned to work; 2. undergone multiple hospital admissions and associated surgery; 3. been told by a number of medical practitioners that it was unlikely that he would ever return to his pre-injury work on account of the injuries he had suffered to his neck, back and right knee in the subject accident; 4. developed depression; and 5. developed an addiction to narcotics to deal with his pain. [43]
2. The plaintiff said that in June 2016 he was admitted to hospital on account of psychiatric illness and mental health issues, following which he was told by his wife that she had submitted an online enquiry to Shine Lawyers. [44] The plaintiff's wife continued to correspond with Shine Lawyers through to the latter part of 2016 in relation to a potential claim by the plaintiff for total and permanent disability. [45] Against this background, the plaintiff was asked: [46] Q. And you knew by 2013 and 2014 the injury that you had suffered had caused you very significant loss, true? A. True. Q. Throughout 2013 and 2014 you did not on one occasion make any attempt to obtain legal advice from another solicitor to see whether you had any rights, is that true? A. True. I was dealing with blood clots in the lung and lower leg and the opiates - it wasn't an addiction, it was help to reduce or quit dependability on pain medication-- Q. I want to put this to you: If you were acting reasonably you should have retained or seen a solicitor to give you some advice in this period of time? A. No I hadn't. Q. What happened in 2016 was that your partner Melanie did some research about workers' compensation claims for coal miners, is that right? A. Correct? Q. And-- A. That said, like any issues of my work, even cleaners - a cleaner was trying to get a case or something and in regards to being always classified as a coal miner, which had been thrown out and it was enough for my wife and I to pursue help in regards to getting some sort of representation in regards to my care and the incident that took place. Q. Your wife Melanie, is she a lawyer or does she have legal qualifications? A. No. Q. The research to your understanding that she did about this, did it involve Google? A. Yes, one case. Q. When you say "one case", to your knowledge, where did she get the information about the case from? A. I think she just Googled it. Q. To your knowledge she did an internet search that told her information to the effect, as you understood it, that you would actually be regarded as a coal miner for the purposes of the claim, is that true? A. Yes and that is where we read that in the removal of coal, once it starts with a surveyor, you are classed as removing coal, which we come in after the surveyor, if he is classed as a coal miner, her and I thought maybe we needed to get someone on legally and get the correct advice in what my position truly was that there. Q. What happened, to your knowledge, after that Google search revealed this case you have told his Honour about, was that your partner got in contact with Shine Lawyers, your current lawyers? A. Yes.
3. The plaintiff said his wife had "been researching workers compensation claims for coal miners and thought that [he] should be classified as a coal miner". [47] That led to the plaintiff telephoning Shine Lawyers on 3 May 2017. [48]
4. The plaintiff eventually spoke with Ms Lewis of Shine Lawyers on 7 July 2017, at which time Ms Lewis advised him that she would investigate the question of whether he was a coal miner for the purposes of the relevant legislation. [49] An appointment was arranged for the plaintiff to speak with Ms Lewis, along with John Palmieri of Shine Lawyers, on 12 July 2017. [50] The plaintiff said that the meeting on that day was the first occasion on which he had been told that he may have a claim for common law damages arising from the subject accident against the first and/or second defendant. [51] The plaintiff also said that Ms Lewis advised him on that occasion that in her opinion he fell within the definition of a coal miner. [52] That advice was confirmed in a letter from Ms Lewis of 13 July 2017. [53] The plaintiff received a further letter on 31 July 2017 setting out his common law rights arising from the subject accident and was advised to contact Ms Lewis to discuss the matter. Reference was also made to briefing counsel to provide advice. [54]
5. In relation to his consultation with Ms Lewis, the plaintiff was asked: [55] Q. And you spoke to Ms Lewis on 7 July about your claim, correct? A. Yes. Q. Is it right that you told Ms Lewis things which were of the kind mentioned in your 31 July affidavit that you have told his Honour about today? A. Yes, yes. Q. You just gave Ms Lewis an account of what had happened in the lead up to your injury and included the matters in your 31 July affidavit, is that fair? A. Yes. Q. Then is it right that after telling her those things on 7 July, five days later you had a meeting with Ms Lewis and Mr Palmieri and at that meeting you were told that you might have a common law claim against Les Russell and the operator of the site, true? A. That wasn't the first action taken, my classification in regards to what I was receiving payment for, as a coal miner, they acted on behalf of myself from memory - even though we discussed the case, thorough notes taken, they were about to stop my income on the 26th, I believe, of December 2016, they were going to put me on a Centrelink benefit and this was the main reason, besides that one researched story, which we ended up actually researching only a matter of two days prior to the phone call with Heidi. … Q. But the question I wish to ask you is that: After you told Ms Lewis about the details of 7 July it was five days later Ms Lewis and Mr Palmieri told you that you might have a good common law case against the operator of the mine and Les Russell, that is true isn't it? A. That was the last thing I thought - not quite sure but it was - might have been the last thing - always prioritised - the first thing was once again my job title, that we were more concerned about at the time and also the TB - superannuation with getting help in relation to it - TBT is it? Q. TPD, is that what you are talking about? A. Yes. Q. Your Total and Permanent Disablement Policy? A. Correct. Q. You were seeing Shine about that too? A. Correct. Q. It is right isn't it that it was a matter of days between when you told Ms Lewis about the details of what happened before 30 April, between then and when you were told by Shine that you may have a common law claim against the operator of the mine and Les Russell, that is true isn't it? A. No I do not recall, I'm sorry.
6. In terms of his knowledge of the applicable limitation period, the plaintiff said: [56] [165] Prior to my meeting with Ms Lewis I was not aware of any limitation time to bring a claim for personal injury. [166] Apart from the previous workers compensation claims I have mentioned in this Affidavit, I have had no other claims for personal injury such as motor vehicle accidents, other workers compensation claims or public liability claims. [167] My mother had a back injury claim against a nursing home, however I do not have anything to do with this matter and we did not discuss it together. She did not tell me about any limitation periods that might apply. [168] Up until my meeting with Ms Lewis I did not know that I may have a common law claim against my employer under the modified common law provisions as a coal miner. I was not aware of my rights as a coal miner, and did not know that I could not bring a lump sum claim for permanent impairment with the Workers Compensation Commission. [169] I did not receive any advice from MRM Lawyers or Rankin Ellison in relation to my right to bring a common law, public liability claim or any work injury damages claim against my employer or the mine in relation to my accident on 30 April 2009. [170] As soon as I was aware of my rights to bring a claim, I instructed my solicitors to proceed to prepare my matter to file in court. I attended all medical appointments arranged by my solicitors in order to proceed with the claim and provided instructions to prepare and file a Statement of Claim.

The plaintiff's injuries from the subject accident

1. Subject to the conclusion that I reach regarding the plaintiff's application for leave to commence proceedings against the first defendant, it may be necessary for me to consider the question of whether the plaintiff should be granted leave to revoke the election (if it be an election) he made to claim compensation. Should that point be reached, it will be necessary for me to determine whether, following that election, there was a further material deterioration in the plaintiff's medical condition. As a consequence of all of those matters, it is necessary for me to consider the medical evidence. The entirety of such evidence runs to some 142 pages. [57] From the point of view of considering the question of any material deterioration in the plaintiff's condition, the following matters of significance emerge from that evidence.
2. Dr Bookallil examined the plaintiff for the Workers Compensation insurer on 14 October 2010. He concluded that there was apparently a cervical arthropathy present, along with lumbar disease which was degenerative in nature. [58] He did not recommend any changes to the treatment regime which was operative at the time, although he considered that physiotherapy and hydrotherapy should not be continued as they provided the plaintiff with only temporary relief. [59]
3. Dr Bracken, to whom the plaintiff had been referred by Mr Lindgren for medico-legal purposes, examined him on 8 June 2011. He diagnosed a significant whiplash injury to the neck and lumbar spine and expressed the view that any further treatment of both areas would be conservative. [60] There was no suggestion that the plaintiff would ever come to surgery.
4. Dr Potter examined the plaintiff at the request of the Workers Compensation insurer on 16 August 2011. He concluded that there was "never the pattern of any structural injury [and] never the pattern of any spine derived pathology", and that there had been a "misunderstanding of pathology". [61] He diagnosed the plaintiff as suffering from "chronic widespread pain" with "no injury definable". [62] He concluded [63] that the plaintiff had a complaint of chronic widespread pain which had "chronologically, but not by cause and effect, come from the episodes so described". He also concluded [64] that there was no underlying degenerative process, no soft tissue injury and no aggravation of any pre-existing degenerative changes. In Dr Potter's opinion, the plaintiff's whole person impairment was 0%. [65] Consistent with these views, Dr Potter made no reference to the possibility of the plaintiff having to undergo surgery in the future.
5. As I have already noted, Dr Faithfull assessed the plaintiff's level of whole person impairment at 10%. In doing so, he concluded that the injuries to the plaintiff's cervical and lumbar spines each fell within DRE category II. [66]
6. The plaintiff was also referred to a number of specialists for treatment. Dr Anthony Schwarzer, Consultant Physician, diagnosed him with a "significant injury to his back and neck". [67] Although part of Dr Schwarzer's treatment consisted of administering various nerve blocks and carrying out denervation procedures (which provided the plaintiff with some relief from pain) there is nothing to suggest that he contemplated the need for surgery prior to the plaintiff making his claim for compensation. This remained the position through Dr Schwarzer's treatment of the plaintiff up to 2014. [68]
7. The plaintiff was also referred to Dr Isaacs, Orthopaedic Surgeon, for treatment, who expressed the view on 8 July 2009 that he did not think that any surgery was indicated for the back or neck. [69]
8. Dr Ferch, a Neurosurgeon to whom the plaintiff was also referred for treatment, expressed the view (in the context of discussing management options) that the plaintiff was "unlikely to benefit from surgical treatment". [70]
9. Consistent with all of these opinions, the plaintiff's evidence was that at the time of finalising his claim for compensation he had not been told by any of his treating specialists that he would require major spinal surgery at any time in the future. [71]
10. Towards the end of 2016, the plaintiff experienced an increase in sciatic pain which was radiating into his feet. [72] He was again referred to Dr Ferch who, at that time, had not seen him for 7 years. [73] Dr Ferch noted that the plaintiff's history included a progression of burning symptoms in his lower limb and referred him for an updated MRI scan and nerve conduction studies. [74] The MRI demonstrated mild degenerative changes with no neural compromise, and the nerve conduction studies did not demonstrate any significant abnormality. [75] When discussing these results with the plaintiff, Dr Ferch expressed the view that the plaintiff was unlikely to benefit from any surgery. [76]
11. The plaintiff was then referred to Dr Parkinson, Neurosurgeon, in October 2017 who recommended repeat imaging. [77] Following a review of that imaging, Dr Parkinson expressed the view [78] that the plaintiff was likely to experience improvement with fusion at levels L3/4, L4/5 and L5/S1. [79] This was the first occasion on which the plaintiff had been advised that surgery may be required. [80]
12. The plaintiff was also examined by Dr Bodel for medico-legal purposes on 2 February 2018 who expressed the view that there was a "strong possibility" that the plaintiff would need to consider a spinal fusion at L3-4. [81] Significantly, in assessing the level of the plaintiff's whole person impairment at 16%, [82] Dr Bodel concluded that there had probably been "a deterioration in the level of whole person impairment since the assessment by Dr Faithfull in 2001". [83] In arriving at that assessment, and consistent with the opinions of Dr Faithfull, Dr Bodel concluded that the injuries to the plaintiff's cervical and lumbar spines fell within category DRE II. However, he added a loading of 2% in respect of the lumbar spine injury to reflect the interference with the plaintiff's activities of daily living, and found that there was an 8% upper left extremity (i.e. shoulder) impairment which gave rise to an additional whole person impairment of 5%. [84] Significantly, Dr Bodel's assessment of the level of the plaintiff's whole person impairment was made on the assumption that the plaintiff would not undergo surgery. [85]
13. As events transpired, the plaintiff underwent multi-level fusion surgery by Dr Parkinson on 2 October 2018, [86] followed by revision surgery (again performed by Dr Parkinson) on 27 May 2019. [87] The plaintiff's unchallenged evidence is that Dr Parkinson has advised him that he will require further surgery in the future. [88]
14. Finally, in the context of considering the nature and extent of the plaintiff's injuries following the subject accident, I must make reference to particular aspects of the radiological evidence as it pertains to the plaintiff's lumbar spine. On 17 December 2013, the plaintiff underwent an MRI scan of the lumbar spine by Dr Slater, whose report [89] included the following: L5/S1 disc, canal and intervertebral foramina and apophyseal joints appear normal. … L3/4 disc level is normal.
15. Given that there was no abnormality detected at any of these levels in December 2013 it can obviously be concluded that this was the position previously, and in particular, at the time when the plaintiff elected to claim, and then receive, compensation.
16. On 14 September 2017, shortly prior to consulting Dr Parkinson, the plaintiff underwent a lumbar discogram of L3-S1 by Dr Kos, whose report [90] included the following: The L3-4 disc is ruptured, with injection at this level producing severe back pain, rated 9/10. … The L5-S1 disc shows a contained rupture posterolaterally on the left.
17. Finally, having consulted Dr Parkinson, the plaintiff underwent a three level provactive discography by Dr Goh on 20 March 2018 whose report included the following: At L3/4 there is an annular disruption. This is associated with reproduction of the plaintiff's lower back pain of 8/10 in severity. No radicular symptoms. …. At L5/S1, a central peripheral annular tear is evident. Injection of this disc reproduced the patient's back pain and left lateral leg pain of 9/10 in severity.
18. It follows that between 17 December 2013 and 14 September 2017, the plaintiff's L314 disc had deteriorated from being normal to exhibiting a rupture. The L5-S1 disc had developed an annular tear over the same period.

THE RELEVANT LEGISLATIVE PROVISIONS

1. There are a number of legislative provisions which are relevant to the orders sought in the three notices of motion. It is convenient to set out the entirety of those provisions at this point.

The Workers Compensation Act 1987 (NSW)

1. The further amended notice of motion filed by the plaintiff seeks an order for leave to commence proceedings pursuant to s 151D of the Workers Compensation Act 1987 NSW ("the WCA").
2. The WCA was significantly amended on 27 November 2001 by the Workers Compensation Legislation Amendment Act 2001 (NSW) (the 2001 amendments). The 2001 amendments (inter alia) altered the right of a person injured at work to bring proceedings for damages independent of the Act. In particular, they altered: 1. the availability of damages other than for non-economic loss; 2. the circumstances in which compensation would be payable for a work related injury; 3. the manner of calculating that compensation; 4. the basis of assessing lump sum compensation by implementing a system dependent upon an assessment of whole person impairment, as opposed to an assessment of the permanent loss of use of, or the permanent impairment of, a body part; 5. the power of a Court to make an order for lump sum compensation.
3. However, Part 18 of Schedule 6 to the WCA (which was inserted by the 2001 amendments) provided as follows: Part 18 - Special provision relating to coal miners … 3. 2001 amendments not applicable to coal miners (1) Subject to this clause, the 2001 amendments do not apply to or in respect of coal miners and this Act and the 1998 Act (and the regulations under those Acts) apply to and in respect of coal miners as if the 2001 amendments had not been enacted. …
4. The effect of the 2001 amendments, therefore, was to create to regimes governing the payment of compensation and damages to coal miners on the one hand, and remaining workers on the other. A person who was a coal miner remained entitled to damages for non-economic loss pursuant to s 151G of the WCA. However, right of a worker who was not a coal miner to recover such damages was removed.
5. A further, and important, effect clause 3 of Part 18 of Schedule 6 was to preserve, in the case of coal miners, the provisions of s 151A of the WCA in the terms in which they appeared prior to the 2001 amendments, which were as follows: 151A Election - damages or "Table of Disabilities" compensation (1) In this section in this section and in section 151V: damages does not include damages to which Part 6 of the Motor Accidents Act 1988 or Chapter 5 of the Motor Accidents Compensation Act 1999 applies. permanent loss compensation means compensation under Division 4 of Part 3 (Compensation for non-economic loss). (2) A person to whom compensation is payable under this Act in respect of an injury is not entitled to both: (a) permanent loss compensation in respect of the injury, and (b) damages in respect of the injury from the employer liable to pay the compensation, but is required to elect whether to claim that permanent loss compensation or those damages. (3) The person makes that election (or is taken to have made that election): (a) by commencing proceedings in a court to recover those damages or by accepting payment of those damages (in which case the person ceases to be entitled to permanent loss compensation in respect of the injury), or (b) by commencing proceedings in the Compensation Court to recover that permanent loss compensation or by accepting payment of that permanent loss compensation (in which case the person ceases to be entitled to recover damages in respect of the injury). (3A) The amendment of a claim that is the subject of proceedings before the Compensation Court to include a claim for permanent loss compensation is (for the purposes of subsection (3)(b)) taken to constitute the commencement of proceedings in the Compensation Court to recover that permanent loss compensation. (4) An election is irrevocable, except that an election to claim permanent loss compensation may be revoked with the leave of the court given in accordance with this section. (5) 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 recovery of damages in respect of that injury. (6) If the election is revoked the permanent loss compensation paid is not required to be repaid, except out of the damages recovered in accordance with section 151B. (7) If a liability to pay permanent loss compensation results from more than one injury to a worker, a reference in this section to permanent loss compensation is a reference to such part of that compensation as relates to the injury for which damages are recoverable.
6. Section 151D of the WCA imposes a time limit on the commencement of proceedings for common law damages and is in the following terms: 151D Time limit for commencement of court proceedings against employer for damages (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 3 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. (3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies. (4) This section does not apply to the commencement of court proceedings in respect of a claim within the meaning of Part 5 of the Motor Accidents Act 1988, Chapter 5 of the Motor Accidents Compensation Act 1999 or Part 4 of the Motor Accident Injuries Act 2017 .

The Workplace Injury Management and Workers Compensation Act 1998 (NSW)

1. Section 105 of the Workplace Injury Management and Workers Compensation Act 1988 (NSW) ("the WIMA") provides (inter alia) as follows: 105 Jurisdiction of Commission and Compensation Court … (4A) After the repeal of the Compensation Court Act 1984 the District Court has exclusive jurisdiction to examine, hear and determine all coal miner matters (except matters arising under Part 5 of the 1987 Act.
2. It is noted that the Compensation Court Act 1984 (NSW) was repealed on 1 January 2004 by the Compensation Court Repeal Act 2002 (NSW).
3. Bearing in mind the provisions of s 105 of the WIMA, the term "coal miner matter" is defined in s 4 of that Act as meaning: "Any matter arising under the Workers Compensation Acts concerning a claim in respect of a worker employed in or about a mine".
4. Section 294 of the WIMA is in the following terms: 294 Certificate of Commission's determination (1) If a dispute is determined by the Commission , the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination. (2) A brief statement is to be attached to the certificate setting out the Commission's reasons for the determination. (3) If the Registrar is satisfied that a certificate as to a determination or a statement attached to the certificate contains an obvious error, the Registrar may issue, or approve of an Arbitrator issuing, a replacement certificate or statement to correct the error.

The Limitation Act 1969 (NSW)

1. Section 50C of the Limitation Act 1969 (NSW) ("the LA") is in the following terms: 50C Limitation period for personal injury actions (1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire: (a) the "3 year post discoverability limitation period" , which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff, (b) the "12 year long-stop limitation period" , which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned. Note : The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3. (2) For the purposes of the application of the 3 year post discoverability limitation period to a survivor action, the cause of action is taken to be discoverable by the plaintiff at whichever is the earliest of the following times: (a) the date on which the cause of action is discoverable by the deceased if the cause of action is discoverable by the deceased more than 3 years before the death of the deceased, (b) the appointment of the plaintiff as the deceased's personal representative if the cause of action is discoverable by the plaintiff at or before the time of that appointment, (c) the date on which the cause of action is discoverable by the plaintiff if the cause of action is discoverable by the plaintiff after the appointment of the plaintiff as the deceased's personal representative. (3) For the purposes of a compensation to relatives action, the 12 year long-stop limitation period runs from the death of the deceased.
2. Section 50D is in the following terms: 50D Date cause of action is discoverable (1) For the purposes of this Division, a cause of action is "discoverable" by a person on the first date that the person knows or ought to know of each of the following facts: (a) the fact that the injury or death concerned has occurred, (b) the fact that the injury or death was caused by the fault of the defendant, (c) in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action. (2) A person "ought to know" of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact. (3) In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person. (4) To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased.

THE PLAINTIFF'S APPLICATION FOR LEAVE TO COMMENCE PROCEEDINGS AGAINST THE FIRST DEFENDANT

1. The first application to be determined is the plaintiff's application pursuant to s 151D(2) of the WCA for leave to commence proceedings against the first defendant. [91]

Submissions of the plaintiff

1. Senior counsel for the plaintiff emphasised that there was no dispute that the plaintiff was in fact a coal miner for the purposes of the WCA at the time of the subject accident and that accordingly, the 2001 amendments did not apply to him. It was submitted that the only available conclusion was that Mr Lindgren did not adequately advise the plaintiff of his rights because had had either misunderstood, or was ignorant of, the effect of the WCA. Senior counsel for the plaintiff submitted that such lack of understanding, or ignorance, of the correct position on the part of Mr Lindgren had manifested itself in a number of ways, including his failure to advise the plaintiff of the difference in the rights of a coal miner and the rights of other workers to whom the 2001 amendments applied, and his related filing of a claim for compensation under the WCA on the plaintiff's behalf.
2. It was further submitted that having retained Mr Lindgren as a person whom he believed to be a competent solicitor, the plaintiff had no reason to question the advice that he was given. It was submitted, in particular, that it would be unreasonable to expect the plaintiff to have understood that as a coal miner for the purposes of the WCA, he had different rights to those of other workers. Senior counsel submitted that in all of these circumstances, the plaintiff's failure to commence common law proceedings against the first defendant in respect of the subject accident was entirely understandable.
3. Senior counsel further submitted that it was not until the plaintiff met with Ms Lewis in July 2017 that he became aware of the correct position, following which he took immediate and appropriate steps to commence proceedings. It was submitted that in all of these circumstances, the plaintiff's explanation for the delay in commencing the proceedings was satisfactory, such delay having stemmed directly from the erroneous advice provided by Mr Lindgren.
4. In terms of the plaintiff's case, it was submitted that the evidence established a prima facie case of negligence against the first defendant. Senior counsel submitted that as the plaintiff's employer, the first defendant owed him a non-delegable duty of care which encompassed a duty to provide a safe system of work, and which did not expose the plaintiff to a foreseeable risk of injury. It was submitted that prima facie, the first defendant had breached that duty and that in circumstances where the operator of the excavator loading the plaintiff's truck was an employee of the first defendant, the first defendant was vicariously liable for the negligent act(s) or omission(s) of that employee. Senior counsel for the plaintiff also relied on the plaintiff's assertion that the first defendant had failed to give proper instructions to its employees regarding the correct method of loading the truck.
5. Finally, senior counsel submitted that the evidence supported a conclusion that the first defendant would not suffer any prejudice in the event that leave was granted to the plaintiff to commence proceedings. He pointed out that the relevant insurer had been on notice of the plaintiff's injury since his claim for compensation was first made and had exercised the opportunity to have the plaintiff medically examined following the accident (on the basis of which it had made payments of compensation). He also emphasised that there was no suggestion that the first defendant had been unable to fully investigate the circumstances of the subject accident at or about the time that it had occurred, nor was there any suggestion that any relevant witness was no longer available to give evidence.
6. It was submitted that in all of these circumstances, I would be comfortably satisfied that a fair trial could take place, and that the justice of the case warranted the application for leave being granted.

Submissions of the first defendant

1. Bearing in mind the plaintiff's case against the first defendant, counsel submitted that neither the file note of Mr Manion, nor any statement made by the plaintiff in support of his claim for compensation, had incorporated any suggestion that the plaintiff's injuries were the consequence of the first defendant's negligence. Counsel for the first defendant also pointed out that Mr Manion's file note made reference only to workers compensation entitlements and that no medical assessment had ever been sought for the purposes of the plaintiff making a claim for work injury damages. In all of these circumstances, it was submitted that the evidence did not establish a prima facie case against the first defendant.
2. Counsel for the first defendant further submitted that these omissions had arisen in circumstances where the evidence supported a conclusion that as a consequence of his earlier claim arising from the 1998 accident, the plaintiff had been aware of the difference between workers compensation benefits, and common law damages. It was submitted that in these circumstances, the significant delay in bringing the proceedings had not been adequately explained.
3. Counsel for the first defendant expressly accepted that he could not point to any actual prejudice which would be suffered by the first defendant in the event that leave to commence proceedings was granted. Notwithstanding that, and in light of the matters outlined above, he submitted that leave should nevertheless be refused.

Consideration

1. Section 151D(2) of the WCA does not specify the criteria by reference to which the discretion to grant leave is to be exercised. However, a number of general principles which inform the exercise of the discretion emerge from the authorities. They include the following: 1. s 151D(2) of the WCA confers a broad discretion on the Court to grant leave; [92] 2. the plaintiff bears the onus of establishing that the relevant delay is not likely to make the proceedings unfair, or cause real prejudice to a proposed defendant who has the benefit of the limitation period; [93] 3. the general question to be asked is what is fair and just, or what does the justice of the case require?; [94] 4. the justice of the case must be evaluated by reference to the rationales of the limitation period that has barred the action; [95] 5. those rationales will include that: 1. as time goes by, relevant evidence is likely to be lost; 2. it is oppressive, or even cruel, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed; 3. people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them; and 4. the public interest requires that disputes be settled as quickly as possible. [96] 1. the justice of a particular case must be determined by its own individual circumstances; [97] 2. an applicant for leave must provide a reasonable explanation for the delay and demonstrate that there has not been an absence of diligence on his part; [98] 3. the strength or otherwise of the plaintiff's case is a material factor in the exercise of the discretion. [99]
2. In addressing all of these issues, and having observed the plaintiff in cross-examination, I should state that he impressed me as an honest and reliable witness.
3. I turn firstly to the plaintiff's explanation for the delay in bringing the proceedings. It is apparent that as a consequence of the 1988 accident, the plaintiff gained some degree of familiarity with common law damages claims arising out of accidents in the workplace. The plaintiff accepted that when the proceedings arising out of the 1998 accident were settled, he was aware that his former employer was paying damages because it had accepted that its negligence was the cause of the injuries he had suffered. However, on the whole of the evidence the plaintiff's knowledge of such matters did not extend much beyond that. Indeed, the plaintiff's evidence, which I accept, was that he understood that the money that he received from the settlement of those earlier proceedings was referable to medical expenses.
4. True it is that when cross-examined the plaintiff conceded that he was aware that there was a difference between compensation under the WCA on the one hand, and common law damages on the other. However, that does not lead to a conclusion that he knew the intricacies of the statutory scheme(s) which governed those respective entitlements, the respective avenues which had to be pursued in order to enforce them, or the factual or legal bases upon which the payment of compensation or damages could be obtained.
5. The plaintiff is not a lawyer. That is why he engaged a lawyer to give him advice about his entitlements arising from the subject accident. When he did so, he initially spoke with Mr Manion who had acted for him in the proceedings arising from 1998 accident, but who told him that he no longer practiced in this area of the law. Mr Manion referred the plaintiff to Mr Lindgren. However, before doing so, Mr Manion took instructions from the plaintiff which are set out in the file note which is in evidence. The nature of the file note, and the terms in which its contents are expressed, are entirely consistent with Mr Manion having taken initial instructions from the plaintiff with a view to referring the matter to Mr Lindgren.
6. Mr Lindgren advised the plaintiff that he was not a coal miner for the purposes of the Act. Bringing a common law action for damages against the first defendant was not addressed. There is no dispute that Mr Lindgren's advice to the plaintiff was wrong. It was in those circumstances that the plaintiff brought a claim for compensation under the WCA in respect of which Mr Lindgren acted for him.
7. The plaintiff was cross-examined extensively about Mr Lindgren's advice. It was not suggested to him that such advice had not been given in the terms he had asserted. Part of that cross-examination was directed towards the proposition that the plaintiff should have had concerns about that advice, and should have taken steps to address those concerns by (for example) speaking with Mr Manion, suggesting to Mr Lindgren that counsel be briefed, or obtaining a second opinion from another lawyer.
8. The plaintiff's evidence, which I accept without reservation, was that he had no concerns about the advice that he was given by Mr Lindgren. It is entirely unsurprising that the plaintiff was unconcerned. He put his trust in Mr Lindgren to advise him correctly and appropriately as to his rights. Regrettably, Mr Lindgren did not do so. The fact that the plaintiff's condition may have been deteriorating in the period during which Mr Lindgren was acting for him was not, in my view, a factor which should somehow have alerted the plaintiff to the possibility that Mr Lindgren's advice was not correct. That deterioration did not alter the fundamental fact that the plaintiff relied upon Mr Lindgren, as his solicitor, to give him competent and correct advice.
9. The suggestion that the plaintiff should have instructed Mr Lindgren to brief counsel to determine whether there was a common law cause of action available to him is, in my view, somewhat unrealistic, as is the suggestion that he should have consulted another solicitor for a second opinion. Both suggestions completely overlook the fact that the plaintiff had no reason to question the advice that he was given. Moreover, I accept the plaintiff's evidence that his priority was regaining his health.
10. The suggestion that the plaintiff should have spoken with Mr Manion is equally unrealistic. Not only did the plaintiff not have any reason to question the advice he had been given, Mr Manion had made it clear to him that he did not practice in this area any longer, which is why he referred the plaintiff to Mr Lindgren in the first place. Speaking with Mr Manion in those circumstances would have been a largely futile exercise.
11. In all of these circumstances, the period between 2011 (when the plaintiff first spoke with Mr Manion) and 2017 (when he first spoke with Ms Lewis) is adequately explained by the fact that, relying upon what Mr Lindgren had told him, the plaintiff was under the impression that his rights were limited to those provided by the WCA. In my view, there was no lack of diligence on the part of the plaintiff at any time during that period. I accept the submission of senior counsel for the plaintiff that in terms of his position as against the first defendant, the plaintiff sought advice, he received advice, and there was no reason for that advice to be questioned or revisited until such time as he consulted Ms Lewis.
12. What motivated the plaintiff's wife to undertake enquiries as to the issue of workers' entitlements is not apparent. However in my view, that is largely immaterial. The more significant factor is the plaintiff's unchallenged evidence that he was not aware of any relevant limitation period, and that until such time as he spoke with Ms Lewis he did not know that he may have a claim for common law damages. I also accept that as soon as Ms Lewis advised him, he instructed her to proceed with the filing of a Statement of Claim.
13. In considering the question of prejudice, I expressly recognise that the rationales referred to by McHugh J in Brisbane South include the fact that people should be able to arrange their affairs, and utilise their resources, on the basis that claims can no longer be made against them, and that the public interest requires disputes to be settled as quickly as possible. At the same time, a determination of whether leave should be granted is one which must be made having regard to the individual circumstances of the particular case. In the present case, counsel for the first defendant expressly conceded that he was unable to point to any actual prejudice which would arise in the event that leave was granted. He accepted that the first defendant had not been deprived of the opportunity to investigate the circumstances of the accident, interview relevant witnesses, and have the plaintiff medically examined. It follows that the first defendant has not lost the opportunity to make any relevant enquiry, be it as to liability or damages. Any presumptive prejudice must necessarily be minimal in those circumstances. Although the absence of any prejudice is obviously not conclusive, it weighs in favour of leave being granted.
14. In making an assessment of the strength of the plaintiff's case, it must firstly be recognised that in an application of this kind any such assessment can obviously only be made at a threshold level. In advancing the proposition that the weakness of the plaintiff's case was a factor weighing against a grant of leave, counsel for the first defendant relied upon two principal factors.
15. The first was that the file note of Mr Manion was essentially bereft of the detail of the subject accident which had been set out in the plaintiff's most recent affidavit. Whilst that may be the case, it is entirely explicable when one considers the circumstances in which Mr Manion's file note was created. Mr Manion was engaged in an initial consultation with the plaintiff. He was doing so in circumstances where he (Mr Manion) had explained that he could not act for the plaintiff and would refer the matter to Mr Lindgren. Mr Manion was not giving, and was not intending to give, advice. He was taking initial instructions. That his file note was summary in nature is completely understandable in those circumstances. Further, although the file note was less detailed in terms of the circumstances of the subject accident, the matters recorded by Mr Manion, obviously based upon what the plaintiff told him, are not inconsistent with the plaintiff's most recent affidavit.
16. The second was that in providing instructions to Mr Lindgren the plaintiff omitted the details of the subject accident which he set out in his most recent affidavit. The plaintiff's evidence was that he had told Mr Lindgren all of the relevant details. I accept that to be the case. That he would not have done so is contrary to common sense. The plaintiff had no reason not to give Mr Lindgren a full account of what had occurred. The absence of such detail in written documents prepared by Mr Lindgren may well be explained by the fact that Mr Lindgren obviously took the view (erroneously) that that the plaintiff's entitlements were limited to those conferred by the WCA. In these circumstances, it is most unlikely that Mr Lindgren's focus was directed to matters, proof of which was necessary in order to establish a claim for common law damages, but which were immaterial to a claim under the WCA.
17. I am unable to accept the proposition advanced by counsel for the second defendant that the plaintiff's case is weak, and that this is a factor which militates against a grant of leave. The account provided by the plaintiff in his affidavits, particularly the most recent, would, if accepted, establish a breach of the first defendant's non-delegable duty of care.
18. Finally, I should note that a submission was advanced by counsel for the first defendant, albeit in somewhat vague terms, to the effect that Mr Lindgren's error in failing to provide correct advice should be visited on the plaintiff. No authority was cited in support of that proposition.
19. Having regard to all of these matters, I am satisfied that the delay in bringing the proceedings has been adequately explained. Such delay will not, in my view, render the proceedings unfair to the first defendant, and will not prejudice the first defendant in any material way. Further, the plaintiff has made out a prima facie case in negligence against the first defendant. The justice of the case therefore warrants an order granting the plaintiff leave to commence proceedings.

THE PLAINTIFF'S APPLICATION TO REVOKE HIS ELECTION TO CLAIM COMPENSATION

1. Having concluded that the plaintiff should be granted leave to commence the proceedings, I must consider the effect of the plaintiff's election (if it be an election) to accept the payment of compensation under the WCA. Shortly put, it is the plaintiff's submission that any election purportedly made by the plaintiff does not, in the circumstances of the present case, amount to a valid election at all. In the event that I reach the contrary conclusion, the plaintiff seeks leave to revoke such election pursuant to s 151A(5) of the WCA. [100]
2. The determination of this application necessarily incorporates a determination of the first defendant's application [101] for an order that the plaintiff's statement of claim be struck out pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW), an order . That order is sought on the basis that the statement of claim has been filed in breach of s 151A(2) of the WCA because of the plaintiff's election to claim compensation.

Submissions of the plaintiff

1. Senior counsel for the plaintiff again emphasised that the plaintiff was a coal miner for the purposes of the WCA that accordingly, the 2001 amendments did not apply to him. It was submitted that Mr Lindgren had failed to appreciate such matters when he was advising the plaintiff, and that it was as a consequence of such erroneous advice that the plaintiff had made his claim for compensation pursuant to the WCA as if he were a "worker at large". It was submitted that in these circumstances, the basis upon which the plaintiff had made his claim had no application to him as a matter of law, and that he was therefore not entitled to the compensation that he had received and accepted. It was submitted that in these circumstances, any compensation paid to him consequent upon his claim was paid in error.
2. Senior counsel submitted that such a conclusion was fortified having regard to the jurisdiction of the Workers Compensation Commission ("the Commission"). It was submitted that at the time of purporting to award the plaintiff compensation under the WCA, the Commission had no jurisdiction to do so because the plaintiff was a coal miner, and that the exclusive jurisdiction to determine matters pertaining to the payment of compensation to such persons was conferred on the District Court of New South Wales. It was submitted that as a consequence, the compensation received by the plaintiff was a nullity.
3. In the alternative, senior counsel submitted that if I were to find that a valid election had been made, the plaintiff should be granted leave to withdraw it pursuant to s 151A(5) of the WCA. It was submitted that at the time of making any election, the plaintiff had received only conservative treatment for his injuries, and had not been given any indication that his condition was likely to deteriorate to the point where he would require surgical intervention. It was submitted that had such surgery been carried out prior to the claim being made, the amount of compensation payable would obviously have been affected.
4. In all of these circumstances, it was submitted that I should conclude that the plaintiff had satisfied each of the criteria in s151A(5)(a)-(c) of the WCA and had thus enlivened the Court's jurisdiction to grant leave. It was submitted that in terms of the exercise of the discretion conferred by s 151A(5), there was no reason to properly refuse a grant of leave. Senior counsel submitted, in particular, that it was plain that any election made by the plaintiff to accept the payment of compensation was brought about by the incorrect advice provided to him by Mr Lindgren.

Submissions of the first defendant

1. Counsel for the first defendant submitted that the plaintiff had clearly made a claim for compensation under the Act, and that such compensation had been paid in accordance with the determination of the Commission contained in its Certificate of Determination issued pursuant to s 294 of the WIMA. It was submitted that this Certificate had not been revoked, and accordingly remained a binding determination made by the Commission.
2. In these circumstances, counsel for the first defendant submitted that s 151A(3)(b) of the WCA had been satisfied by the plaintiff's acceptance of the compensation paid to him, and that as a consequence the plaintiff had ceased to be entitled to recover common law damages in respect of his injuries. Counsel further submitted that even if it were concluded that the payment of compensation was accepted by the plaintiff in error, be that an error on the part of the plaintiff himself or on the part of his solicitor, that did not alter the fact that there had been an election within the meaning of s 151A(3)(b) of the WCA. In this regard counsel for the first defendant referred me to the decision of the Court of Appeal in Dunn v Firth. [102]
3. In terms of the Court's discretion to grant leave to revoke the election, counsel for the first defendant submitted that the evidence did not support a conclusion that there was a deterioration in the plaintiff's medical condition after 2012. Counsel relied, in particular, on the opinions expressed by Dr Ferch set out in his report of 17 November 2016. [103] Counsel pointed to the fact that at the time of his review of the plaintiff on that day, Dr Ferch had not examined him for a period of 7 years, and that there was nothing in the report of Dr Ferch which supported the conclusion that there had been a relevant deterioration in the plaintiff's condition.

Consideration

1. It is common ground that the plaintiff was a coal miner at the time of the subject accident. His claim for compensation under the WCA was clearly a "coal miner matter" as defined in s 4 of the WIMA, because it was a matter arising under the WCA concerning a claim in respect of a worker employed in or about a mine.
2. The plaintiff's claim was determined by the Commission, who purported to issue a Certificate of Determination pursuant to s 294 of WIMA ordering that the plaintiff be paid a total sum of $26,437.50. However, the Commission had no jurisdiction to determine the plaintiff's claim, or make those orders. The jurisdiction to do so was the exclusive jurisdiction of the District Court of NSW pursuant to s 105(4A) of the WIMA.
3. Pursuant to s 151A(3)(b) of the WCA, a person makes an election, or is taken to have made an election, is taken to have made an election, under s 151A(2) by (inter alia) accepting payment of permanent loss compensation. In the present case however, the Commission's order for the payment of such compensation was a nullity, because the compensation was paid to the plaintiff pursuant an order which the Commission had no jurisdiction to make. If a purported determination is affected by a lack of jurisdiction to make it, it is no determination at all. [104] In these circumstances, the Commission's determination of the claim for compensation made by the plaintiff was a nullity and of no effect, as was his acceptance of the compensation paid to him. In these circumstances, I am satisfied that any election purportedly made by the plaintiff did not amount to a valid election within the meaning of s 151A(3)(b) of the WCA.
4. In my view, the decision in Dunn does not assist the first defendant. I accept there is a broad similarity between the position of the appellant in that case, and that of the plaintiff in this case, in that the appellant in Dunn had elected to accept the payment of compensation in the absence of being advised by her solicitor (the respondent) of her entitlement to common law damages. However, the question for the Court on appeal [105] was the value of the appellant's loss as a consequence of the failure of her solicitor to properly advise her. The judgment of the Court says nothing about what may or may not constitute a valid election for the purposes of s 151A(3) of the WCA.
5. In the event that I am wrong in my determination, and if the plaintiff's election was valid, I am of the view that this is an appropriate case to exercise the discretion conferred by s 151A(5) of the WCA and grant leave to the plaintiff to revoke that election. Section 151A(5) requires the plaintiff to satisfy three prerequisites before the discretion can be exercised in his favour.
6. The first prerequisite [106] is that the plaintiff elected to claim compensation. Accepting for this purpose that the plaintiff's election was valid, there is no dispute that a claim for compensation was made.
7. The second prerequisite [107] is that following such election, the injury caused a further material deterioration in the plaintiff's medical condition that, had it existed at the time of the election, would have entitled the plaintiff to additional compensation. [108] In my view, this requirement is also satisfied.
8. The medical evidence to which I have referred clearly establishes that over the period between 2011 and 2018, the plaintiff's condition deteriorated substantially. In the period immediately following the subject accident the general consensus of medical opinion was that the plaintiff's condition would be treated conservatively. Surgical intervention was not contemplated. However, by 2017 the plaintiff's condition had deteriorated to the point where Dr Parkinson saw fit to carry out multi-level fusion surgery, followed by revision surgery. Consistent with that, the radiological evidence demonstrates a significant deterioration in the plaintiff's lumbar spine at L3/4 and L5/S1.
9. Further, the opinion of Dr Bodel, who carried out his assessment by reference to the initial assessment of Dr Faithfull, supports the conclusion that had the plaintiff's condition at the time of his examination been the condition prevailed at the time of the plaintiff's compensation claim, he would have been entitled to an additional sum. In this regard, counsel for the first defendant expressly conceded that under the relevant guidelines, the fact of a spinal fusion would elevate the category of assessment from DRE II to DRE IV which would, in turn, elevate the level of the plaintiff's whole person impairment to a range of 20% to 23%. That is substantially greater than the assessment made by Dr Faithfull and would entitle the plaintiff to additional compensation over and above that which he received.
10. The third prerequisite [109] is that at the time of the election, there was no reasonable cause to believe that the further deterioration would occur. In The State of New South Wales v Taylor [110] the majority of the High Court [111] concluded (inter alia) that the reasonable cause for belief is determined by reference to the evidence concerning the plaintiff's condition, and expert opinion as to what the medical prognosis for that condition, at the time. It is the Court's view of all of the evidence, and not the belief of the plaintiff (be it reasonable or otherwise) that is decisive. Ultimately, the question is whether, given the medical condition of the plaintiff and the expert opinion as to prognosis, it would be unreasonable for a person to believe that the condition would further deteriorate as it had.
11. The plaintiff must prove a negative. He must show that it would be unreasonable for a person to hold that belief. He will prima facie discharge that onus by tendering evidence that such a belief could not be reasonably held. If the plaintiff succeeds in doing so, the defendant bears an evidentiary burden to show that there exists another body of evidence that indicates a contrary conclusion. If, on the evidence, two opposite beliefs may have been reasonably open as to whether the further deterioration would occur, then the application for revocation will fail.
12. Based on the medical evidence to which I have previously referred, I am satisfied that it would be unreasonable to conclude that at the time of the plaintiff's election he had cause to believe that there would be further deterioration in his condition. No medical practitioner who examined the plaintiff at, or in the period leading up to, the time at which the payment of compensation was accepted, proffered the slightest suggestion that such deterioration would occur. On the contrary, many of them recommended the continuation of conservative treatment. Moreover, there was nothing in the plaintiff's reported symptoms at or around the time of his election which was suggestive of such deterioration.
13. Each of the prerequisites in s 151A(5)(a)-(c) having been established, and in the event that it were concluded that the plaintiff made a valid election, he should be granted leave to revoke that election.

THE SECOND DEFENDANT'S APPLICATION FOR A SEPARATE DETERMINATION OF THE LIMITATION QUESTION

1. The notice of motion filed by the second defendant seeks a separate determination of the question whether the plaintiff's proceedings against the second defendant are out of time and not maintainable having regard to the provisions of the LA.
2. Counsel for the second defendant accepted that reservations have been expressed regarding the appropriateness of making a separate determination of a limitation issue in advance of a trial. [112] However, he submitted that the present case was an appropriate one in which to make such a preliminary determination. Senior counsel for the plaintiff, whilst acknowledging that it remained a matter for the Court, did not oppose that course.
3. In my view, given that the circumstances of the subject accident and its aftermath have been fully canvassed in the evidence which is before the Court, the present case is an appropriate one in which to order that the limitation issue as between the plaintiff and the second defendant be determined separately. The parties conducted the hearing of the second defendant's motion of motion on the assumption that I would come to that view.

Submissions of the second defendant

1. Counsel expressly accepted that the second defendant bore the legal and evidentiary onus of establishing that the plaintiff's cause of action was not maintainable. He submitted (and it is not in dispute) that in light of the fact that the proceedings were commenced by the plaintiff on 20 June 2018, the relevant date for the purposes of s 50C(1) of the LA is 20 June 2015.
2. Counsel submitted that the plaintiff knew, at the time of the subject accident, that he: 1. drove a truck which was loaded by an excavator driven by Mr McCluskey; 2. drove the loaded truck to the dump site which had been recently bulldozed; 3. positioned himself to unload the truck and had gone to lift the tray in order to do so; 4. noticed that the front left hand side of the truck was starting to lift off the ground, causing the truck to lean to his right; 5. activated the lever to bring the tray back down, causing the tray to come down suddenly which resulted in the onset of pain in the neck and lower back. [113]
3. It was submitted that the plaintiff's knowledge of such matters was sufficient to support a finding that he knew, prior to June 2015, that his injury was caused by the fault of second defendant.
4. It was further submitted that in terms of that knowledge, the plaintiff's earlier common law proceedings arising from the 1998 accident provided a "very useful yardstick," in circumstances where the evidence established that prior to 20 June 2015, the plaintiff knew that he had: 1. been injured in the subject accident to a far more serious extent than was the case in the 1998 accident; 2. been terminated by his employer in April 2011; 3. undergone multiple forms of treatment and hospital admissions; and 4. suffered serious ongoing injuries to a number of parts of his body, as well as associated depression as a consequence of such injuries.
5. Counsel submitted that it was clear on the evidence that the plaintiff knew that the site was operated by an entity which was different to his employer, and which had its own obligations, over and above those of his employer, as to the safety of the site. Counsel pointed to the plaintiff's belief that in its capacity as the operator of the site, the second defendant's use of a grader, as opposed to a bulldozer, to prepare the dump site was (at least in part) the cause of the subject accident, and that he had held that belief in at least May 2011 when he spoke with Mr Manion. It was submitted that this was sufficient to amount to knowledge of fault on the part of the second defendant.
6. In the alternative, counsel for the second defendant submitted that the plaintiff had, prior to 20 June 2015, constructive knowledge of the fact that his injury was caused by the fault of second defendant. It was submitted that the plaintiff had not taken all reasonable steps prior to 20 June 2015 to ascertain the fact that his injury was caused by the fault of the second defendant. In this regard, counsel for the second defendant pointed specifically to the fact that the plaintiff: 1. did not speak with Mr Manion until approximately 2 years after the subject accident; 2. did not impress upon Mr Lindgren various matters in relation to what he believed to be the lack of safety at the mine site; 3. did not ask Mr Lindgren to brief counsel; 4. failed to ascertain matters which were "in the public domain" regarding the position of coal miners prior to either 2016 or 2017; 5. failed to obtain a second opinion when he discovered that Mr Lindgren was no longer able to assist him.
7. Whilst accepting that the plaintiff had been advised by Mr Lindgren that he was not a coal miner for the purposes of the WCA, counsel submitted that in circumstances where the plaintiff had some knowledge of common law causes of action in light of his earlier proceedings arising from the 1998 accident, he had failed to seek any advice about whether such a claim was available against the second defendant in respect of the subject accident. It was further submitted that even when told in the latter part of 2012 that Mr Lindgren could no longer give him advice, the plaintiff did not seek another opinion for several years. Counsel submitted that this had occurred in circumstances where the plaintiff knew that had suffered loss, and knew the relevant facts which, if accepted, established fault on the part of the second defendant.

Submissions of the plaintiff

1. Senior counsel for the plaintiff conceded that the evidence supported a conclusion that prior to 20 June 2015 the plaintiff had the requisite knowledge for the purposes of s 50D(1)(a) of the LA, namely knowledge that the injury had occurred. However, it was submitted that prior to 20 June 2015, the plaintiff: 1. did not know that the injury was caused by the fault of the second defendant; 2. did not know that his injury was sufficiently serious to justify the bringing of an action against the second defendant or in other words, did not know that any fault on the part of the second defendant was actionable in damages; and 3. was not in a position in which he ought to have known either of the matters in (i) and (ii), having taken all reasonable steps.
2. It was submitted that although the plaintiff was aware, on and from the time of the subject accident, of the facts giving rise to his injury, this was not sufficient to establish knowledge of "fault" within the meaning of s50D(1)(b) of the LA. Senior counsel submitted that the evidence established that the plaintiff had had not been advised, at any time, that the circumstances of the subject accident gave rise to a legal liability on the part of the second defendant, and that he was unaware of the legal significance of the second defendant's occupation of the mine site, or of any involvement of the second defendant in setting up a system of work, until he consulted Ms Lewis in or about August 2016. It was submitted that in all of these circumstances, the second defendant had failed to establish that the plaintiff was aware, prior to 20 June 2015, of the fact that his injury was caused by the fault of the second defendant.
3. Further, in terms of s 50D(1)(c) of the LA, senior counsel submitted that the second defendant had failed to establish that the plaintiff knew that his injury was one for which the law would hold the second defendant liable in damages which would be sufficiently large to warrant action being taken.
4. In terms of s50D(2) of the LA, it was submitted that in circumstances where the plaintiff had no basis to question the advice he had been given, the plaintiff had taken all appropriate and timely steps by: 1. engaging a solicitor; 2. providing that solicitor with detailed instructions which were sufficient to have properly alerted that solicitor to the potential of a claim for damages against the second defendant; 3. accepting, and following, the advice that he was given as to his remedies; 4. engaging Ms Lewis after his condition had deteriorated.
5. Senior counsel further submitted that a conclusion that the plaintiff had taken all reasonable steps was unaltered by the fact of his previous common law claim arising from the 1998 accident, because the plaintiff had failed to appreciate that there was a distinction between compensation on the one hand and damages on the other. It was further submitted that the previous claim did not support a conclusion that the plaintiff ought to have been expected to appreciate the legal implications of the second defendant's occupation and operation of the mine site.
6. It was submitted that in all of these circumstances, the failure on the part of Mr Lindgren did not render the factors in s50D(1)(b) and (c) of the LA something that the plaintiff ought to have known, for the purposes of s 50D(2), any earlier than he did.

Consideration

1. There is no issue that the plaintiff knew, prior to 20 June 2015, that his injury had occurred. [114] This leaves the following questions for determination: 1. Did the plaintiff know, prior to 20 June 2015, that his injury was caused by the fault of the second defendant? 2. Did the plaintiff know, prior to 20 June 2015, that his injury was sufficiently serious to justify the bringing of an action?
2. If I am satisfied that the plaintiff knew each of those facts, then his action against the second defendant is not maintainable.
3. If I am not satisfied that the plaintiff knew one or other (or both) of those facts, then I must consider a third question, namely whether he ought to have known such fact(s).

Did the plaintiff know that his injury was caused by the fault of the second defendant?

1. In Baker-Morrison v The State of NSW [115] Basten JA concluded that for the purposes of s 50D(1)(b) of the LA, what must have been known by a plaintiff are the key factors necessary to establish legal liability against, as opposed to moral blameworthiness on the part of, the proposed defendant. There is no requirement that the plaintiff to be able to articulate a cause of action in terms of (for example) negligence. [116] The submissions of counsel for the defendant sought to challenge aspects of the reasoning in Baker-Morrison but accepted that the decision is one by which I am bound.
2. The correctness of the approach set out by Basten JA in Baker-Morrison was confirmed by Beazley JA (as Her Excellency then was) in State of New South Wales v Gillett. [117] Her Honour also concluded [118] that for the purposes of the term "fault" as that term is used in s50D(1)(b) of the LA, it is incumbent upon a defendant to establish that the plaintiff knew that the matter was legally actionable. The determination of the question posed by s 50D(1)(b) involves an evaluative judgment as to the causal relationship between the injury on the one hand and the defendant's fault on the other, the latter referring to fault which engages or establishes legal liability as opposed to moral blameworthiness. [119]
3. The plaintiff knew that Mr McCluskey was an employee of the first defendant and had breached the safety rules of the mining site in a number of different respects, as a consequence of which he (the plaintiff) had been put in danger. The plaintiff also accepted when cross examined [120] that at least from the time that he consulted Mr Manion, he considered that the second defendant had failed to: 1. properly supervise the conduct of employees at the site; 2. properly supervise, in particular, the unsafe work practices of Mr McCluskey; and 3. properly maintain the dump site by using a grader rather than a bulldozer.
4. All of those matters which the plaintiff accepted that he knew are key factors necessary to establish legal liability on the part of the second defendant. They led the plaintiff to conclude that the second defendant was at least partly at fault. However, that does not mean that the plaintiff knew that such fault was actionable, [121] or in other words, that he knew that such fault established a legal liability in the second defendant. [122] Neither Mr Manion nor Mr Lindgren ever advised the plaintiff in those terms, in circumstances where I am satisfied that he had provided a full account of what had occurred.
5. For the reasons already set out, I accept that the plaintiff was unconcerned with the advice that he had been given by Mr Lindgren. The absence of concern was completely justified. The plaintiff had retained Mr Lindgren as his lawyer and had no reason to question the advice that he had been given. In those circumstances he had no reason to ask Mr Lindgren to brief counsel. Similarly, he had no reason to go back to Mr Manion, or to obtain a second opinion. It was not until he saw Ms Lewis that the plaintiff first became aware that those circumstances surrounding the subject accident which were within his knowledge established fault, in the sense of establishing a legal liability, against the second defendant.
6. The second defendant has therefore failed to satisfy me that prior to 20 June 2015 the plaintiff knew that his injury was caused by the fault of the second defendant within the meaning of s 50D(1)(b) of the LA.

Did the plaintiff know that the injury was sufficiently serious to justify the bringing of an action against the second defendant?

1. What is required for the purposes of s 50D(1)(c) of the LA is knowledge that the damages which may be recovered were large enough to be worth the time and trouble of commencing an action. [123] Although the plaintiff's treatment was, for a long time conservative, and although his condition deteriorated over time, the evidence establishes that virtually from the outset he was referred to a number of specialists and underwent regular treatment, particularly by Dr Schwarzer, largely because he regularly complained of pain.
2. I am satisfied that certainly by the time of his acceptance of the payment compensation in early 2012, the plaintiff considered that he had been seriously injured. In these circumstances, the test under s 50D(1)(c) is satisfied.
3. Having concluded that the plaintiff: 1. did not know, prior to 20 June 2015, that the injury was caused by the fault of the second defendant; 2. knew, prior to 20 June 2015, that his injury had occurred and that it was sufficiently serious to justify bringing an action; it remains to consider, bearing in mind the terms of s50D(2), whether the plaintiff ought to have known that the injury was so caused.

Ought the plaintiff have known that his injury was caused by the fault of the second defendant?

1. I am not satisfied that the plaintiff ought to have known, prior to 20 June 2015, that his injury was caused by the fault of the second defendant. In short, the plaintiff sought and obtained advice from Mr Lindgren, and did so in a timely fashion. I am satisfied that in doing so, the plaintiff provided comprehensive instructions to Mr Lindgren setting out the entirety of the circumstances of the subject accident. In those circumstances, the relevant enquiry becomes what Mr Lindgren told the plaintiff. [124] Mr Lindgren told the plaintiff that he was not a coal miner and that he had an entitlement to lump sum compensation. The instructions provided to Mr Lindgren ought to have alerted him to the issue of a potential claim for common law damages. However, that issue was never canvassed, the essence of his advice being that the plaintiff had an entitlement to lump sum compensation.
2. Having retained Mr Lindgren to advise him, the plaintiff was perfectly entitled to act in accordance with the advice that he was given. He was entitled to, and obviously did, believe that Mr Lindgren was acting in his best interests, giving him the correct advice, and pursuing whatever remedies were available. There was nothing which caused, or should have caused, the plaintiff to question the advice that he had been given, or the steps that Mr Lindgren was taking on his behalf.
3. Although the plaintiff had prosecuted a previous common law claim for damages arising out of the 1998 accident, that does not lead to a conclusion that he was aware of the intricacies of, or the differences between, the schemes for the payment of workers compensation on the one hand, and common law damages on the other. I am satisfied that the plaintiff was not aware of such matters, nor was he aware of the legal principles to be applied in determining liability at common law. When he accepted the payment of lump sum compensation, he did so because he had been advised by Mr Lindgren that this was the totality of his entitlement. It follows that in large measure, the plaintiff's failure to commence proceedings against the second defendant stemmed from the advice he had been given by Mr Lindgren, which he understandably saw no reason to question.
4. The evidence establishes that the plaintiff experienced a deterioration in his condition in or about 2016 which gave rise to psychological issues, leading to his admission to hospital. That, in part, led him to consult Ms Lewis. It was at that time that he first became aware that he may have a claim for common law damages against the second defendant. None of the advice given by Mr Lindgren prior to that time canvassed that question to any degree whatsoever. Moreover, it was not until the plaintiff consulted Ms Lewis that he became aware of the applicable limitation period.
5. In light of all of these matters, I am satisfied that the plaintiff took all reasonable steps for the purposes of s 50D(2) of the LA. I am not satisfied that he ought to have known, prior to 20 June 2015, that his injury was caused by the fault of the second defendant.
6. In all of these circumstances, the second defendant's limitation defence fails.

ORDERS

1. I make the following orders: 1. The parties are to provide my Associate, by 25 February 2021, draft Short Minutes of Order giving effect to the conclusions reached in this judgment, and incorporating a timetable for the further conduct of the proceedings, including a timetable for the filing of all lay and expert evidence. 2. The question of costs of each of the three notices of motion is reserved. 3. In the absence of agreement being reached as to costs, the parties are to provide written submissions to my Associate by 25 February 2021, such submissions not to exceed two pages in length. 4. The proceedings are listed for further directions before me on 26 February 2021 at 9.30 am.

Endnotes

1. Exh. A.
2. T7.9-T7.17.
3. T7.23-T.28.
4. T7.30-T7.35.
5. T7.37-T7.48.
6. T7.50-T8.4.
7. T8.6-T8.8; T19.7-T19.8.
8. T8.17-T8.21.
9. T19.17-T19.43.
10. T19.24-T19.43.
11. Affidavit of 13 February 2019 at [16].
12. At [18]-[26].
13. At [9]-[20].
14. T11.21-T12.38
15. T20.22-T20.33.
16. T27.16-T29.27.
17. Affidavit of 13 February 2019 commencing at [30].
18. Affidavit of 13 February 2019 at [16].
19. Affidavit of 13 February 2019 at [64].
20. Affidavit of 13 February 2019 at [63].
21. T13.24-T13.26; T22.6-T22.10.
22. CB319-CB320.
23. T13.31-T14.16.
24. T15.39-T15.44.
25. T17.38-T17.49.
26. T16.3-T16.18.
27. T12.47-T12.49.
28. T13.1-T13.7.
29. T21.23-T22.4.
30. T24.24-T24.46.
31. Affidavit of 13 February 2019 at [65].
32. Affidavit of Mr Moore at [2]-[4]; CB 283; 286.
33. CB 291; 321.
34. Affidavit of Mr Moore at [5]; CB 283.
35. CB 305.
36. At [66]-[67].
37. T30.1-T30.28.
38. T30.32-T33.39.
39. Affidavit of 13 February 2019 at [77]; CB 307.
40. CB 307.
41. Affidavit of 13 February 2019 at [85]; CB 308.
42. Affidavit of 13 February 2019 at [86]-[90].
43. T33.41-T34.31.
44. Affidavit of 13 February 2019 at [91]-[92]; CB 18-19.
45. Affidavit of 13 February 2019 at [93]-[96]; CB 19.
46. T34.33-T35.31.
47. Affidavit of 13 February 2019 at [97]; CB 19.
48. Affidavit of 13 February 2019 at [99]; CB 19.
49. Affidavit of 13 February 2019 at [106]; CB 20.
50. Affidavit of 13 February 2019 at [106]; CB 20.
51. Affidavit of 13 February 2019 at [107]; CB 20.
52. Affidavit of 13 February 2019 at [109]; CB 20.
53. Affidavit of 13 February 2019 at [110]; CB 20.
54. Affidavit of 13 February 2019 at [115]; CB 21.
55. T35.38-T 36.47.
56. Affidavit of 13 February 2019 at [165]-[170].
57. CB 410-CB 552.
58. CB 142.
59. CB 143.
60. CB 414.
61. CB 426.
62. CB 427.
63. CB 428.
64. CB 428.
65. CB 429.
66. CB 434.
67. CB 445.
68. Affidavit of 25 November 2019 at [17]; CB 406.
69. CB 440.
70. CB 443.
71. Affidavit of 25 November 2019 at [9]; CB 405.
72. Affidavit of 25 November 2019 at [18]; CB 406.
73. CB 515.
74. CB 515.
75. CB 516.
76. CB 516.
77. CB 521.
78. Report of 3 April 2018.
79. CB 524.
80. Affidavit of 25 November 2019 at [21]; CB 406.
81. CB 537.
82. CB 541.
83. CB 540.
84. CB 540.
85. CB 541.
86. Affidavit of 25 November 2019 at [23]; CB 406.
87. Affidavit of 25 November 2019 at [24]; CB 406.
88. Affidavit of 25 November 2019 at [25]; CB 406.
89. CB 179.
90. CB 190.
91. Plaintiff's further amended notice of motion at [1].
92. Howley v Principal Healthcare Finance Pty Limited (Howley) [2014] NSWCA 447 at [45] per McColl JA (Meagher and Barrett JJA agreeing) citing Itex Graphix Limited v Elliott (Itex Graphix) [2002] NSWCA 104; (2002) 54 NSWLR 207 at [87] per Ipp AJA (Spigelman CJ and Sheller JA agreeing).
93. Gallagher Bassett Services Pty Limited v Murdock [2013] NSWCA 386; (2013) 86 NSWLR 13 at [26] per Barrett JA (Gleeson and Leeming JJA agreeing); see also
94. Howley at [45]; see also Brisbane South Regional Health Authority v Taylor (Brisbane South) (1996) 186 CLR 541; [1996] HCA 25 at 550 per Toohey and Gummow JJ.
95. Itex Graphix at [87] per Ipp AJA (Spigelman CJ and Sheller JA agreeing).
96. Brisbane South at 552-553 per McHugh J.
97. Itex Graphix per Ipp AJA at [88].
98. Itex Graphix per Ipp AJA at [89].
99. Gower v The State of New South Wales [2018] NSWCA 132 at [149] per White JA, citing Commonwealth of Australia v Shaw (2006) 66 NSWLR 325; [2006] NSWCA 209 at [40] per Basten JA.
100. Paragraph (7) of the plaintiff's notice of motion.
101. Paragraph (1)(b) of the first defendant's notice of motion.
102. [2003] NSWCA 280.
103. CB 515.
104. See generally Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597.
105. At [17].
106. Section 151A(5)(a).
107. Section 151A(5)(b).
108. Section 151A(5)(b).
109. Section 151A(5)(c).
110. [2001] HCA 15; (2001) 204 CLR 461 at [4] and [13]-[14].
111. Gleeson CJ; Hayne and McHugh JJ.
112. See for example Pomare v Whyte [2009] NSWCA 317 at [5] per Basten JA; see also Murgolo v AAI Limited [2009] NSWCA 295 at [62]-[63] per Basten JA.
113. Affidavit of 13 February 2019 at [18]-[22]; CB 9.
114. Section 50D(1)(a) of the LA.
115. [2009] NSWCA 35; (2009) 74 NSWLR 454 at [39].
116. Baker-Morrison at [39] per Basten JA.
117. [2012] NSWCA 83 at [94], the other members of the Court agreeing.
118. At [97].
119. Baggs v University of Sydney Union [2013] NSWCA 451 at [13] per Meagher JA (Hoeben JA (as his Honour then was) and Macfarlan JA agreeing.
120. T28.29 and following
121. Gillett at [131] per Campbell JA (McColl and Whealy JJA agreeing).
122. Baggs at [13].
123. Gillett at [131].
124. Pomare at [13] per Basten JA. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 February 2021