District Court New South Wales Medium Neutral Citation: Cavanagh v Manning Valley Race Club Ltd [2020] NSWDC 629 Hearing dates: 16 October 2020 Date of orders: 23 October 2020 Decision date: 23 October 2020 Jurisdiction: Civil Before: Russell SC DCJ Decision: 1. Grant leave nunc pro tunc to the plaintiff to commence these proceedings pursuant to s 151D of the Workers Compensation Act 1987 (NSW). 2. Costs of the Motion filed on 3 July 2020 are to be costs in the cause. Catchwords: PROCEDURE – application for leave to commence proceedings under s 151D of the Workers Compensation Act 1987 – whether plaintiff has arguable cause of action – prejudice – notice of intention to claim Legislation Cited: Workers Compensation Act 1987 (NSW), s 151D Cases Cited: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Gower v State of New South Wales [2018] NSWCA 132 Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 Itek Graphix Limited v Elliott [2001] NSWCA 442; (2002) 54 NSWLR 207 McMartin v Huricon Manufacturing & Sales Pty Limited [2014] NSWSC 1812 Saad v J Robins & Sons Pty Limited [2003] NSWCA 87 Salido v Nominal Defendant (1993) 32 NSWLR 524 Sydney City Council v Zegarac (1998) 43 NSWLR 195 Category: Procedural and other rulings Parties: Anthony Cavanagh (Plaintiff) Manning Valley Race Club Ltd(Defendant) Representation: Counsel: P Menary (Plaintiff) S Flett (Defendant) Solicitors: LHD Lawyers (Plaintiff) Leigh Virtue & Associates (Defendant) File Number(s): 2020/122796 Judgment Background 1. By a Statement of Claim filed on 24 April 2020 the plaintiff sued the defendant alleging that he suffered injuries due to the nature and conditions of his work between June 1999 and 25 February 2011. The plaintiff said that every day he drove a tractor with a leveller in order to render the defendant's racecourse track smooth and safe for horses. The plaintiff alleged that in order to check that the leveller was at the correct level, he had to turn his head and upper body about 160 degrees to the right, every few seconds. On 25 February 2011 while performing that work he suffered the onset of pain in the neck, right shoulder, right arm and hand. 2. The plaintiff alleged that his injuries were caused by the negligence of his employer, the defendant. 3. The Defence filed on 4 May 2020 denied negligence and in the alternative alleged contributory negligence. The Defence pleaded that the proceedings had been brought out of time because of the provisions of s 151D of the Workers Compensation Act 1987 (NSW) (the Act). 4. The plaintiff filed a Notice on Motion on 3 July 2020 seeking leave to commence proceedings pursuant to s 151D of the Act. 5. The plaintiff swore an affidavit on 12 July 2020 (PX 1). The detail of that affidavit was summarised in the plaintiff's chronology (MFI 1). The summary put forward in the chronology was accepted as accurate by counsel for the defendant. 6. The plaintiff also relied upon an affidavit by his solicitor Mr Abouchrouche sworn on 2 July 2020 (PX 2). Mr Abouchrouche's firm has acted for the plaintiff since 15 October 2015. Another firm of solicitors acted for the plaintiff between 12 July 2011 and October 2015. 7. The plaintiff also relied upon a Direction of the Workers Compensation Commission dated 15 May 2013 (PX 3). That document recorded an agreement between the parties that Mr Cavanagh had suffered injury in the course of his employment by reason of the nature and conditions of that employment. 8. The defendant tendered the affidavit of Mr Macken, solicitor, sworn on 18 August 2020 (DX 1). That affidavit annexed four statements made by employees of the defendant. 9. No person was required to give oral evidence or be cross-examined. 10. Both counsel provided helpful written submissions. The submissions for the plaintiff were marked as MFI 2 and the submissions for the defendant were marked as MFI 3. Legislative Framework 1. Subsection 151D of the Act relevantly provides: "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." 1. In Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447, McColl JA (Meagher and Barrett JA agreeing) said at [44]: "Section 151D(2) does not spell out specific criteria to be taken into account by the court when exercising the discretion to extend the time to commence court proceedings sought to be commenced more than 3 years after the injury was received: cfs58(2), 60C(2) Limitation Act 1969 (NSW); s l09 Motor Accidents Compensation Act 1999 (NSW)." The Test 1. The general principles applying to an "extension" of time (as opposed to the present approach in limitations actions), were discussed in Salido v Nominal Defendant (1993) 32 NSWLR 524 at 537- 538: "The primary rule is that each case must be determined on its own facts. The onus of establishing an entitlement to a grant of leave is upon the applicant. The fact that the defendant will suffer some forensic disadvantage through the extension is not of itself decisive, although it is a relevant consideration; and while the discretion is not to be narrowly construed, the applicant must demonstrate that it is fair and just that leave be granted." 1. The question to be asked when considering whether to exercise the broad discretion conferred by s 151D(2) is what is fair and just in the circumstances or alternatively what the justice of the case requires: Itek Graphix Limited v Elliott [2001] NSWCA 442; (2002) 54 NSWLR 207 per Ipp AJA, at [87]: "In my opinion, in limitation legislation such as s151D(2) of the Workers Compensation Act, where a broad discretion is conferred to grant leave to sue after expiry of the limitation period, the general question that has to be asked is what is fair and just (per Gleeson CJ in Salido). Or what does the justice of the case require (per McHugh J in South Brisbane Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541]). In answering such a question the justice of the case must be evaluated by reference to the rationales of the limitation period that has barred the action, including the four rationales to which McHugh J refers." 1. McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at [6] identified four rationales when considering extending the limitation period: 1. As time goes by relevant evidence is likely to be lost. 2. It is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed. 3. It is desirable for people in the community to be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Many in the community have a significant interest in knowing that they have no liabilities beyond a definite period. 4. The public interest requires that disputes be settled as quickly as possible. 1. The test for determining what is "fair and just" or what the justice of the case requires can be broken down into two central issues. 2. In Itek Ipp AJA said that the first issue to be resolved by the court is whether the applicant, who applies for leave to bring proceedings after expiry of a limitation period, provides a reasonable or adequate explanation for the delay and shows there has not been an absence of diligence on his or her part. The second issue to be resolved concerns prejudice and whether leave to commence proceedings would result in an unfair trial. The Explanation 1. Adequacy of explanation is of most relevance where the plaintiff has made a deliberate and fully informed decision to allow a statutory limitation period to expire (Itek, at [91]). That has not occurred in this case. The Prejudice 1. Ordinarily, the issue of prejudice is of paramount importance (Itek, at [3]). 2. The defendant points to no actual prejudice but relies upon presumptive prejudice. 3. With respect to "prejudice", in Howley McColl JA pointed out at [48]: "The effect of Brisbane South 'is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant': Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 (at [119]) per Sheller JA (Meagher and Handley JJA and Brownie AJA agreeing). 'Significant prejudice means such prejudice as would make the chances of a fair trial unlikely': The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 (at [96])." 1. In Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 a five member bench of the Court of Appeal applied the test of Toohey and Gummow JJ in Brisbane South (at 550): "The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent." 1. Presumptive prejudice is not an automatic bar in the absence of demonstrated significant prejudice: Saad v J Robins & Sons Pty Limited [2003] NSWCA 87 at [35]; McMartin v Huricon Manufacturing & Sales Pty Limited [2014] NSWSC 1812 at [35]. 2. If the defendant does seek to rely on actual prejudice, the onus is on the defendant to adduce evidence pointing to actual prejudice caused by the passage of time: Sydney City Council v Zegarac (1998) 43 NSWLR 195, per Mason P at 197. No actual prejudice is asserted in the present case. The Onus 1. In Brisbane South, after referring to this persuasive onus, Toohey and Gummow JJ said (at 547): "There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission (Viet) in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Ptv Ltd: 'It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.'" Issues for Determination 1. Both counsel had discussed the issues for determination before the hearing commenced. Counsel for the defendant indicated that the following matters were in issue: 1. Whether the plaintiff had a cause of action in negligence. 2. Prejudice, being presumptive rather than actual prejudice. 3. Whether the plaintiff should have given earlier notice of an intention to bring a work injury damages claim. Whether the plaintiff has an action in negligence 1. Part of the plaintiff's affidavit PX 1 was annexure "A" being a statement of the plaintiff. In par 5 of that statement he said: "I note that the leveller was affixed to hydraulic arms at the rear of the tractor. In order to ensure that the leveller was in fact levelling the ground, I had to turn my head from facing to the front where the tractor was heading about 150-160 degrees to the right so that I could look over my right shoulder and observe the operation of the leveller. I would have to do that every few seconds." 1. This version of the way the plaintiff did his work was repeated as an assumption in the expert report of Ms Weigall, a certified professional ergonomist (PX 2, Annexure "M", p 6). That report supports the plaintiff's case in negligence. 2. Counsel for the defendant submitted that the plaintiff's assertion that he continuously turned his head over his right shoulder every few seconds would not be established by the evidence, and thus the plaintiff would fail in his case in negligence. For that submission counsel relied upon some of the material in the statements of the employees annexed to DX 1. 3. The first was the statement of Ms Helen Sinclair, the current Executive Officer of the defendant. Ms Sinclair has been the Executive Officer since 16 June 2018, so she did not work for the defendant at the time Mr Cavanagh suffered his injury. In her statement Ms Sinclair said, in effect, that there was no need to look back when driving the tractor with the leveller in operation. How Ms Sinclair would know that, when she did not drive a tractor, and only started at the racecourse over six years after the plaintiff stopped work, was not apparent. 4. The defendant also relied upon a statement from Mr Philip Shoesmith. He used to be the executive officer of the defendant. Mr Shoesmith was asked by an investigator whether Mr Cavanagh had to continuously look over his right shoulder to observe the leveller that was affixed to the tractor. He said: "Not continually, but on a regular basis yeah. There would be nothing stopping him looking over his left shoulder either." 1. The defendant also relied upon a statement by Mr Mark Hubbard, a track supervisor employed by the defendant. Part of his task had been to drive the same tractor that Mr Cavanagh had driven. When asked whether Mr Cavanagh would have had to continuously look over his right shoulder, Mr Hubbard said: "If it is me doing the tracks, you are not continuously looking over your shoulder, but you do look back, when you are reversing onto the track, and then you occasionally look back at the leveller, it is not constant otherwise you wouldn't see where you are going forward." 1. The statements of Mr Shoesmith and Mr Hubbard provide some support for the plaintiff's assertion that to operate the leveller while driving the tractor, it was necessary to look back at the leveller, at least some of the time. There is therefore a real issue to be decided at any hearing as to the frequency with which Mr Cavanagh did look back while driving the tractor and operating the leveller. 2. I reject the submission made by counsel for the defendant that the plaintiff has no cause of action because his assertion that he was looking back towards the leveller every few seconds cannot be accepted. The determination of that issue would be a factual matter to be decided by the trial judge. If Mr Cavanagh's version of how he did the work is accepted, then he has an arguable case. Presumptive prejudice 1. The tractor which Mr Cavanagh drove is still available. It is no longer owned by the defendant, but it is available to be inspected. The leveller is still in use at the defendant's racecourse. Counsel for the defendant very properly acknowledged that there was no actual prejudice. 2. While it must be recognised that the work done by Mr Cavanagh occurred many years ago, the evidence tendered by the defendant shows that Mr Shoesmith is still available and Mr Hubbard is still available. There was no evidence that they had any difficulty remembering either Mr Cavanagh or the work which he did. There was no evidence that they might become unavailable or that their memories are in any way impaired. While presumptive prejudice must always be considered, it is not a major factor in this case, where the allegation made is a simple one, and where there are people who can speak to it. Whether the plaintiff should have given earlier notice of an intention to claim Work Injury Damages 1. The plaintiff ceased work on 25 February 2011. He lodged an Employee Report of Injury form with the defendant on 8 June 2011. On 15 June 2011 the defendant declined the plaintiff's claim for workers compensation. On 4 July 2011 the plaintiff submitted a Workers Injury Claim Form. The defendant had the plaintiff medically examined by Dr Pillemer on 1 August 2011 concerning whether the nature and conditions of the plaintiff's employment was a substantial contributing factor to the plaintiff's complaints. 2. On 12 August 2011 Dr Hyde-Page, at the request of the plaintiff's then solicitors, medically assessed the plaintiff as having a 17% Whole Person Impairment (WPI) for the cervical spine. The course of medical treatment and examinations from that point on is set out in the plaintiff's chronology (MFI 1) and the evidence served for the plaintiff. On 21 March 2011 a Medical Assessment Certificate assessed the plaintiff as having a 6% WPI. On 14 March 2013 Dr Hyde-Page assessed a 7% WPI. In April or May 2015 the plaintiff was advised by his former lawyers that because his WPI fell below the requisite threshold to make a claim for work injury damages, his file was being closed. 3. In June 2015 Dr Spittaler recommended that the plaintiff undergo spinal fusion surgery. On 4 August 2015 the defendant declined liability for the cost of the surgery. On 15 October 2015 the plaintiff consulted his current lawyers. On 6 December 2016 Arbitrator Egan determined that the spinal fusion surgery was reasonable and necessary. On 24 January 2017 the plaintiff had his operation. 4. On 16 January 2018 written notice was served on the defendant of an intention to claim work injury damages once the plaintiff was certified with at least 15% WPI. At that time the plaintiff was undergoing treatment for bowel cancer and having chemotherapy. Correspondence went back and forth between the solicitors concerning the WPI assessment. Both sides had the plaintiff medically examined. On 22 October 2019 a Medical Assessment Certificate was issued certifying the plaintiff as suffering from a 27% WPI. 5. In Gower v State of New South Wales [2018] NSWCA 132, the Court of Appeal found that a trial judge had erred in her approach to an application under s 151D of the Act. The Court of Appeal further found that the discretion to grant leave should not be exercised because the appellant's case was weak (a matter highly material to the exercise of the discretion), there was actual prejudice to the respondent arising from the delay, and there was the absence of any earlier notice of an intention to make a work injury damages claim. 6. In the present case it is hard to see how the plaintiff could have given earlier notice of an intention to bring a work injury damages claim. While Dr Hyde-Page had initially assessed the plaintiff at 17% WPI on 12 August 2011, that same doctor reduced his assessment to 7% by 14 March 2013. Dr Hyde-Page confirmed his 7% WPI assessment on 7 April 2015. 7. It was not until 16 January 2018 that written notice was served on the defendant providing notice of his intention to claim work injury damages if and when the plaintiff was certified with at least 15% WPI. As it turned out, such certification did not occur until 22 October 2019. As counsel for the plaintiff correctly put it in oral submissions, this finding was the necessary gateway to commencing work injury damages proceedings. 8. It cannot be said that any additional prejudice has accrued to the defendant arising from the fact that there was no notice of a potential work injury damages claim until January 2018. Nor can it be said realistically that the plaintiff should have given notice earlier than that date. The plaintiff did not wait until he had his 15% WPI assessment. Notice was given 21 months prior to the 15% WPI assessment that the plaintiff intended to make a work injury damages claim, if he obtained a 15% WPI assessment. 9. This case is not at all like Gower. It cannot be said that the plaintiff's case is weak. It cannot be said that there is any actual prejudice. It cannot be said that the plaintiff should have given notice of a potential work injury damages claim any earlier than he did. Conclusion 1. I find that the plaintiff has provided a reasonable explanation for the delay and there has been no absence of diligence on his part. The plaintiff has diligently pursued his rights, and so have his lawyers. As the evidence and the chronology demonstrate, the plaintiff has continuously been having medical treatment for his work injuries, and the defendant has been aware of such treatment from early days. The defendant has taken advantage of the opportunity to have the plaintiff medically examined from time to time. 2. There was no deliberate decision to delay the commencement of proceedings. 3. The defendant raises no actual prejudice. 4. It is difficult to see that there is any presumptive prejudice. 5. The defendant's own evidence demonstrates that it has liability evidence which it might use to defend the claim in negligence. The defendant has had a full and complete opportunity to obtain medical evidence to meet the claim for damages. 6. In the circumstances it cannot be said that the delay has made the chances of a fair trial unlikely. I find that it is fair and just that the plaintiff be granted leave to commence these proceedings. Orders 1. My orders are: 1. Grant leave nunc pro tunc to the plaintiff to commence these proceedings pursuant to the s151D of the Workers Compensation Act 1987 (NSW). 2. Costs of the Motion filed on 3 July 2020 are to be costs in the cause. ********** 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: 23 October 2020