TORTS - WORK INJURIES DAMAGES CLAIM - LIMITATIONS - Application to extend limitation period under Workers Compensation Act 1987, s151D.
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TORTS - WORK INJURIES DAMAGES CLAIM - LIMITATIONS - Application to extend limitation period under Workers Compensation Act 1987, s151D.
Judgment (2 paragraphs)
[1]
Judgment
HIS HONOUR: This is an application under s 151D of the Workers Compensation Act 1987 ("the 1987 Act"). There is no dispute that the plaintiff was injured on 29 May 2013 at his employer's place of business at Gateshead near Newcastle. There is no dispute the plaintiff fractured a number of parts of his right wrist. At that time the plaintiff was aged 46 years. The plaintiff has been paid either wages or workers compensation payments up until today's date. On 19 April 2018 the plaintiff filed a statement of claim, claiming work injury damages. Under s 151D of the 1987 Act, an action is to be commenced within three years of the occurrence of the injury unless the Court grants leave otherwise. The three-year limitation period expired on 29 May 2016. The defendant filed a defence on 7 May 2018. Plea numbered 9 is this:
"Further and in the alternative, as a complete defence to the claim, the Defendant says that the Plaintiff is precluded from commencing these proceedings, pursuant to the terms of s 151D of the Workers Compensation Act 1987."
That led to the plaintiff's filing a notice of motion on 18 June 2018 seeking an order, nunc pro tunc, that the plaintiff have leave to commence the proceedings on 18 June 2018.
The application before me is relatively simple. The plaintiff swore an affidavit on 18 June 2018. That is exhibit A-A. To it are annexed a number of documents. The plaintiff was not required for cross examination on his affidavit. No further evidence was adduced by the plaintiff. The defendant adduced no evidence at all. The matter therefore must be disposed of on the evidence available to me in exhibit A-A.
A little bit of background may assist in understanding the case. Amongst the documents exhibited to the plaintiffs affidavit is a report of Dr Lionel Chang, bearing date 5 September 2016. On p 2 of that report is this history:
"Mr Young left school at age 15 to apprentice as a butcher, and whilst still an apprentice at age 18, he put his left hand in a meat mincer losing all four fingers. Upon recovery he left to work in an engineering company cutting steel pipes, then tried working in an office before returning to the butchering for five more years before working for Woolworths at first as a butcher, then worked his way up to become a store manager. He eventually was employed by Reece [the defendant] in 2007."
The plaintiff was employed by the defendant as a building coordinator in their building department. His duties required him to install pallet racking and pipe racks and to install and dismantle bunking, plumbing, cable, hydraulic and air-conditioning works.
The circumstances of the plaintiff's accident are recorded in three paragraphs of his affidavit.
"3. On 29 May 2013, I was working at the Reece Plumbing and Bathrooms store in Gateshead, Newcastle. There was an old store on one side of the road and I think Reece purposely built a new store on the other side. On the day, we were required to move stock from the old shop to the new one.
4. I recall I picked up a bag from a mid-level shelf and a few fittings fell out. I tried to grab the bag to prevent any other fittings falling out. I bent down and picked up a few of the fittings that had fallen and when I was getting back up, I accidentally stepped on a fallen fitting with my right foot, and slipped backwards into the storage bunk/shelf. The shelves of the bunk collapsed under my weight.
5. I put my right arm out to break the fall. My wrist was caught on the bottom shelf in a very awkward position and as a result of the fall, I injured my right wrist and ruptured a ligament."
On the question of liability it ought be noted that in [38] of the report of Ms Sharon Todd, an ergonomist qualified by the plaintiff's solicitors, that the fittings fell from the bag because the bag had been torn. The inference to be drawn is that the fittings escaped through a tear in the bag rather than the plaintiff's tipping the fittings out of the bag, albeit accidentally. On the question of liability the expert, Ms Todd, provided this appraisal in her "Executive Summary":
"2. At the material time, the subject floor surface was contaminated with a component that was a small rounded metal part. The plaintiff did not see the component on the floor; when he stepped forward he slipped, fell and sustained injury.
3. The defendant had an obligation to provide bags that were fit for purpose.
4. Spillages occurred when the subject bags tore. The plaintiff had raised the tearing of the bags with management and requested sturdier bags. The defendant had not changed the bags citing costs as the reason for the bags not being substituted for a more suitable variety.
5. Durable storage of all components forms part of the Defendant's overall risk management system. This system requires the Defendant to identify and consider all foreseeable storage and handling risks and implement reasonable controls to minimise spillages.
6. Spillages of small metal or plastic components onto the floors in such areas is a likely slip and falls risk. It is known that contamination had rendered a non-slip pedestrian surface a slip and falls risk.
7. The provision of stronger more durable storage options would have minimised the risk of a spillage of components onto floor surfaces."
Based on that appraisal by Ms Todd, the plaintiff has at least an arguable case to succeed in his action for work injury damages. I should also point out what Is patently obviously, that many of the observations made by the expert are mere matters of common sense. For example para 6 of the executive summary which I have quoted, is a very long-winded statement of what is patently obvious to any thinking human being.
The injury to what in effect was the plaintiff's not only dominant but sole hand was serious. He was taken to the John Hunter Hospital, where he was examined by an orthopaedic surgeon and was then sent to Sydney Hospital which contains the nation's leading hand surgical unit. There the plaintiff came under the care of Dr Mark Nabarro, an orthopaedic surgeon, who I infer is a hand expert.
According to the plaintiff, the diagnosis was a fracture of the right distal radius and a rupture of the scapho-lunate ligament. Arthroscopic debridement was performed on 5 July 2013. On 11 February 2014 Dr Nabarro performed reconstruction surgery at the St George Private Hospital. Some time after that reconstruction, the plaintiff returned to working suitable duties for the defendant. Minor surgery was practised on 14 April 2018 by Dr Nabarro: the removal of the Küntscher wires that had been used to stabilise the plaintiff's right wrist at the time of the reconstruction. However there was a complication. Around June 2014 the plaintiff developed a ganglion cyst on his right wrist and that became painful. On 17 October 2014 Dr Nabarro excised the ganglion and also performed a synovectomy. For that procedure the plaintiff was off work for a few weeks and then returned to work performing suitable duties.
He last worked on 16 October 2015 and has not been able to return to any form of employment since that time. The plaintiff's affidavit is silent as to this fact but it appears to be likely that the plaintiff's services to the defendant were terminated sometime after he last worked on 16 October 2015. However the plaintiff's symptoms were not improving, despite the fact the plaintiff was no longer working. He again consulted Dr Nabarro, who performed a fusion of the right wrist involving bone grafting at the St George Private Hospital on 20 October 2015.
The plaintiff's medical and hospital and other treatment expenses have been paid to date by the defendant's workers compensation insurer. The plaintiff has also been paid weekly payments of workers compensation by the defendant up until the present time. It should be noted that the last surgery practice by Dr Nabarro was on 20 October 2015, more than two years after the plaintiff's injury. After such major surgery to a wrist one would not expect maximum medical improvement until approximately a year after surgery was performed.
Eventually the plaintiff's solicitors sent the plaintiff to see Dr Lionel Chang, who is a plastic and hand surgeon. Dr Chang examined the plaintiff on 5 September 2016. Dr Chang diagnosed an impairment of the plaintiff's right upper extremity to be 30%, that equated in his assessment to 18% whole person impairment (WPI). The plaintiff instructed his solicitors to make a claim for permanent impairment under the 1987 Act upon the defendant. The defendant through its workers compensation insurer accepted that the plaintiff had an 18% WPI as the result of the accident on 29 May 2013. A complying agreement was executed by the plaintiff and a representative of the defendant on 30 November 2016.
That complying agreement clearly post-dated the three-year limitation period. However the plaintiff could not commence a claim for work injury damages in this Court, or for that matter in any other court, until he had reached agreement with his employer, the defendant, about the extent of his whole person impairment. In blunt terms the plaintiff could not have commenced proceedings in this Court prior to 30 November 2016. As I have already said, he commenced proceedings in this Court on 7 May 2018.
The plaintiff had first consulted his solicitors, Messrs Turner Freeman, on 3 September 2014. According to his affidavit, he was then advised by his solicitor that if he was found to have whole person impairment of at least 15%, he could consider a work injury damages claim. The time at which he consulted his solicitors was, however, prior to the performance of the fusion of his right wrist on 20 October 2015 and well before maximum medical improvement. The plaintiff's affidavit does not tell me that he was advised of the three-year limitation period and as I have already mentioned, was not required for cross examination about that matter or about any other matter.
According to the plaintiff's affidavit on 30 November 2016, the day on which the complying agreement was executed, he had a conference with a partner of Messrs Turner Freeman and discussed with that solicitor a work injury damages claim. He instructed Messrs Turner Freeman to commence such a claim. A formal letter pursuant to ss 281 and 282 of the Workplace Injury Management and Workers Compensation Act 1998 ("the 1998 Act") was sent to the defendant on 31 January 2017 some two months later. That two months clearly included the Christmas, New Year holiday period when it is very common for many solicitors' practices to close for either two and sometimes four weeks.
On 3 February 2017 the defendant through its solicitors requested further and better particulars of the plaintiff's claim. Those particulars were delivered by the plaintiff's solicitors on 10 May 2017, some three months later. The correspondence passing between the solicitors is before me as an annexure to the plaintiff's affidavit. However, both the letter requesting the particular and the particulars themselves have required legal input and the inference I draw is that it is likely that the plaintiff's answer to particulars was settled by counsel. However, there is no direct evidence to effect.
The plaintiff's delay in serving a pre-filing statement appears to have been the result of waiting for the expert's report. Ms Todd interviewed the plaintiff on 10 April 2017. She did not participate in any view and it is likely any view would be impossible. As I understand it, the plaintiff's accident happened in the old store, rather than the new one. Whether it is currently available to the defendant in the form it was at the time of the plaintiff's accident is completely unknown. Furthermore the accident occurred because of the presence of a small piece of metal on the floor which had fallen out of the bag being lifted by the plaintiff and it is unlikely that that piece of metal would still be in situ given the passage of time and the relocation of the defendant's premises.
Ms Todd produced a report bearing date 6 July 2017. It was served upon the defendant's solicitor on 17 July 2017. However, it was then a delay of approximately six months until the service of a pre-filing statement on 5 February 2018. The defendant served a pre-filing defence on 14 March 2018. Assuming that the defendant did not admit liability, the plaintiff had made an application for mediation to the WCC on 7 March 2018. That mediation was held on 16 April 2018 but was unsuccessful. That led to the filing of the statement of claim on 7 May 2018, albeit that the plaintiff's chronology says that that occurred on 19 April 2018. That is quite immaterial.
No submission has been put to me by the defendant that the plaintiff's solicitors delayed to any great extent or that the delays between events since the ascertainment of the WPI has been otherwise than normally happens in cases of this nature.
The defendant can point to no actual prejudice. However, the authorities make it clear that there is always presumptive prejudice, prejudice to be assumed once a limitation period expires because the whole purpose of limitation legislation is to prevent stale claims, to prevent claims being made when the human memory will be unreliable in it's recollection of events that happened in the past. It is clear, however, that the defendant would know much about the plaintiff's alleged cause of action. As one would anticipate, following a frank injury at his workplace, there is early documentation concerning the plaintiff's workers compensation claim.
In [24] of her report, Ms Todd points out that on 31 May 2013 there was an incident report form prepared by the defendant for its workers compensation insurer. On 3 June 2013 there was a worker's injury claim form executed by the plaintiff and delivered to the defendant. On the same day the defendant prepared an employer's report of injury form, forwarding it to its workers compensation insurer with the worker's claim for compensation. Ms Todd tells me that she had available to her a statement of the plaintiff made on 12 December 2016 which one would expect in the normal course of events to have been served upon the defendant with the pre-filing statement.
Ms Todd also refers to a factual investigation report bearing date 3 May 2017 which includes statements from Messrs David Apps, Tim Leeman, Glenn Gott, Raymond McDonald and Ebony Alexander. Ms Todd's report also refers to a statement of Mr Philip Young bearing date 12 December 2016, same date as the plaintiff's statement was made and it is quite possible that Mr Young's statement was obtained by the plaintiff's solicitors and served with the pre-filing statement. Between [50] and [52] Ms Todd quotes from the statements of Mr Apps, Mr Leeman and Mr Gott. There is nothing quoted by her which suggests that there was any dispute about the mechanism of the plaintiff's injury.
Unlike many of the cases that come before this Court and the Court of Appeal, the delay in this case is not particularly long. Mr Menary, who appears for the plaintiff, prepared a document which I identified as a synopsis, which has been marked 2 for identification. It points out that time stopped running pursuant to s 151DA between service of the statutory notices under ss 251 and 282 of the 1998 Act on 31 January 2017 and 31 March 2017. Pursuant to s 151DA(1)(b) of the 1987 Act, time stopped running again on 5 February 2018 when the pre-filing-statement was served. According to the synopsis there were 192 weeks between the occurrence of the injury and the service of the statutory notices on 31 January 2017. There were a further 45 weeks that ran between then and 5 February 2018. The total number of weeks during which time ran was accordingly 237 weeks and the limitation period was 156 weeks, indicating the plaintiff's action was commenced out of time by 81 weeks. On my brief analysis of the time spans involved, approximately half of that 81 weeks is referrable to the need for the plaintiff to reach maximum medical improvement as far as the condition of his right hand and arm was concerned, and the agreement as to the extent of his whole person impairment, and the other half of the 81 week period was time taken up by the necessary procedures before one can commence court proceedings, in other words, complying with the statutory scheme.
As I have pointed out, Mr Flett, who appeared for the defendant, raised no submission that the time spent complying with the statutory scheme was other than not acceptable. Mr Flett, however, refers me to recent dicta in the Court of Appeal concerning the statutory scheme. The dicta are from Gower v The State of New South Wales [2018] NSWCA 132. In that case the plaintiff was struck by a soccer ball thrown by a student at a high school where he was employed as a casual teacher. The plaintiff's nose was broken but he went on to suffer a psychological injury being a major depressive disorder. The accident occurred on 12 September 2003. The plaintiff commenced proceedings on 23 March 2016. The defendant then moved the Court by notice of motion filed on 30 January 2017, seeking leave nunc pro tunc to commence the proceedings on 23 March 2016. Those proceedings were heard by Gibson DCJ in March 2017 and her Honour refused the application on 24 March 2017. The plaintiff's appeal to the Court of Appeal was unsuccessful, per Basten and White JJA, Simpson AJA contra. At [25] Basten JA said this:
"It is, of course, possible that even had a claim been made within the three-year period, proceedings would not have been commenced until after that period. However, that possible source of unavoidable delay can carry little weight. First, had a claim been made at an early point, the State would have been on notice from that moment that it faced the prospect of a work injury damages proceedings. Secondly, in the case of a medical dispute, it was a matter for the approved medical specialist to determine whether or not the claimants condition was fully ascertainable and, if so, the level of permanent impairment. When that would have occurred can not be said."
The important point to note is that his Honour suggested that an early notice of a potential common law claim could have been delivered to the putative defendant, the State of New South Wales. It is clear that his Honour when writing those reasons had available to him the judgment of White JA. His Honour said this at [104]:
"No reason was advanced by Mr Gower as to why notice of claim for work injury damages was not served at the same time as the notice of claim for lump sum compensation. As noted above, a notice of claim for work injury damages can be given notwithstanding that the worker has not been assessed to have suffered a degree of permanent impairment of at least 15%. Moreover, as adverted to below, the fact that a formal notice of claim for work injury damages can only be made if the worker is in position to give a notice of claim for lump sum compensation, does not mean that a worker contemplating bringing a claim for work injury damages can not give informal notice of that intention conditionally on the workers obtaining an assessment of permanent impairment that would satisfy the threshold imposed by s 151H. That was not done in this case. The significance of this should be considered in conjunction with consideration of the strength of Mr Gower's claim and evidence of actual or presumed prejudice to the respondent in having a fair trial 15 years or so after the event."
Again, the significance of that dictum is that it is possible for a potential plaintiff to give an informal notice of a claim for work injury damages or perhaps to give a notice that the plaintiff intends to bring a claim for work injury damages provided that he crosses the statutory threshold to enable him to do so. On the contrary, however, was the view of Simpson AJA. At [245] her Honour said this:
"Contrary to the views expressed by White JA…I do not accept that the appellant could, or should, have given notice of his claim for s 151H damages prior to his obtaining viable evidence of 15% impairment. In this respect s 318 of the [1998] Act is of particular importance. The effect of that section is that, in practical terms, the appellant could not serve his Pre Filing Statement without that evidence, because, if he did, he would not be able to rely on it at a trial."
It should be evident from what I have just quoted about Gower's case, that there was a significant delay, delay of some 13 years between the accrual of the alleged cause of action and the commencement of the common law proceedings. I was referred, in passing, to the decision of the High Court of Australia in Prince Alfred College Incorporated v ADC [2016] HCA 37. However, in that case there was the cause of action alleged to have accrued in 1962 and there had been delay being measured in a number of decades rather than a number of years.
I am acutely aware that in applying s 151D I should have regard to the principles relating limitation statutes as outlined by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. However as I have had cause to point out in many earlier judgments, a number of the reasons behind limitation periods are attenuated in a work injury damages claim because, in most cases, the employer will have been aware of the cause of action for many years by reason of fact that workers compensation payments have been made to the plaintiff over a number of years prior to commencement of proceedings, and because prudent workers compensation insurers raise an estimate for the potential value of a workers compensation claim which can often be utilised in making provision for a work injury damages claim.
Here the delay is not particularly great, as I have pointed out, it is a delay of some 81 weeks, only half of which could be visited at the plaintiff's hands because the delay was mandated by the requirement that the plaintiff reach agreement with his employer or there be found by appropriate litigation that the WPI was 15% or greater. The real question here is whether the plaintiff ought to have given notice within the three-year period of his potential work injury damages claim. This is a question on which minds may well differ. Giving even a potential notice of a work injury damages claim would no doubt invite a request for particulars from the putative defendant. The giving of a notice and the answer and provision of particulars require legal input, and the services of lawyers are not cheap. Furthermore, the giving of a potential notice and the incurring of legal costs might be wholly futile if the plaintiff does not reach the statutory threshold, which enables him or her to bring a work injury damages claim assuming that there is an arguable cause of action. Money spent on giving notice of a putative claim which can never be brought is just wasting money and wasting time.
There are some accidents which bespeak inevitably of negligence. I can recite the usual Latin maxim of res ipsa loquitur. However the current accident was not one which would fall in that category. At the commencement of these reasons I set out the evidence available to me about how the cause of action arose and what the assessment of the expert, Ms Todd, was and pointed out that the plaintiff had an arguable cause of action. However, I would expect that this will be challenged and at least the concept of contributory negligence will be pressed strenuously by the defendant.
Another factor which I must bear in mind is the potential benefit that may be reaped if the plaintiff be successful. This is not a "minor" case, if any case of personal injury can be so described. The plaintiff in a work injury damages claim can only claim economic loss. He has had some post-accident employment with the defendant on suitable duties but, as I have already said, he has not performed any work since 16 October 2015, getting on for some three years. The plaintiff is at the current time is 51 years of age and he would have a future working life of some 16 years, albeit he may have intended to work longer. He is a man who prior to injury only had lost four fingers of his left hand, essentially making him, perhaps one might think, almost a single-handed person and now he has lost at least 30% use of his other arm and hand, his right upper limb. This in a man who has done manual work for almost all his working life is a major loss and it may be very difficult for the plaintiff to obtain work which he could do given his background and the damage to each of his upper limbs.
The plaintiff has delivered particulars claiming as at 31 January 2017, some 18 months ago, past economic loss of $77,177.91, future economic loss of $440,938.98 plus 11% of the past economic loss for loss of superannuation and 13.5% of the future economic loss for the loss of future superannuation. In other words, the case has great potential to result in a fairly large verdict for the plaintiff, if the plaintiff be successful.
There being no actual prejudice, the time within which putative or possible prejudice might arise being small and there being no submission put of what the putative prejudice might be, I believe, given the circumstances of this case, that it is appropriate to grant the plaintiff the leave which he seeks.
Any further reasons required gentlemen? I have inquired of the parties of any further reasons for judgment required. I am told that none is so required. For those reasons I grant leave to the plaintiff to commence proceedings for work injury damages arising out of the accident on 29 May 2013 as on 19 April 2018. Now, what do you want to say about costs?
MENARY: Costs in the cause, your Honour.
HIS HONOUR: Happy with that, Mr Flett? By consent, costs of the current notice of motion, costs in the cause.
MENARY: As it please, your Honour.
[2]
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Decision last updated: 26 February 2019