Supreme Court New South Wales Medium Neutral Citation: Milanko v Watpac Pty Ltd [2021] NSWSC 452 Hearing dates: 30 April 2021 Date of orders: 30 April 2021 Decision date: 30 April 2021 Jurisdiction: Common Law Before: Schmidt AJ Decision: (1) Mr Milanko is granted leave to commence these proceedings against the Nominal Insurer nunc pro tunc. (2) Costs of the motion be costs in the cause. Catchwords: WORKERS COMPENSATION – Limitation period – Leave sought for extension of time – s 151D of the Workers Compensation Act 1987 (NSW) – Where employer placed in receivership and later went into liquidation – Where claims pursued diligently - No prejudice flowing from grant of leave – Leave granted Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1946 (NSW) Limitation Act 1969 (NSW) ss 50C, 50D, Pt 2 Div 6 Workers Compensation Act 1987 (NSW) ss 66A, 151D, 162 Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 282 Cases Cited: Brisbane South Regional Health Authority Taylor (1996) 186 CLR 541 Hole v Gregory Ronald Lyons trading as Greg Lyons Building Constructions [2020] NSWSC 102 Itex Graphix Pty Limited v Elliott 54 NSWLR 207; [2002] NSWCA 104 Salido v Nominal Defendant (1993) 32 NSWLR 524) Category: Principal judgment Parties: Dragan Milanko (Plaintiff) 1st Defendant: Watpac Construction Pty Ltd 2nd Defendant: Concrete Structures Group Pty Ltd 3rd Defendant: Workers Compensation Nominal Insurer Representation: Counsel: Mr J Dodd (Plaintiff Mr A Combe (Third Defendant) Solicitors: NSW Compensation Lawyers (Plaintiff) Solicitors: Landers & Rogers Lawyers (First Defendant) Solicitors: McInnes Wilson (Second Defendant) Solicitors Hicksons (Newcastle) (Third Defendant) File Number(s): 2019/140941 Judgment 1. Mr Milanko brought these proceedings in May 2019 against Watpac Pty Ltd, seeking damages for injuries which he claimed he suffered, while working at a building site which was under its control, he then being employed by Conbuild Services Pty Limited. Watpac filed a defence in April 2020. 2. Mr Milanko later joined Concrete Structures Group Pty Ltd, who he claims had been engaged to supply and install formwork and place and finish concrete at the site where he was injured, as well as the Workers Compensation Nominal Insurer, as defendants. The Nominal Insurer because Conbuild Services had gone into liquidation, bringing into operation s 162 of the Workers Compensation Act 1987 (NSW). They have both filed defences to Mr Milanko's 3rd amended statement of claim. 3. A cross claim has also been filed by the Nominal Insurer, naming Watpac Pty Ltd and Concrete Structures Group Pty Limited as cross defendants and seeking contribution from them under the Law Reform (Miscellaneous Provisions) Act 1946 (NSW). 4. In its September 2020 defence the Nominal Insurer relied, amongst other things, on s 151D of the Workers Compensation Act to defend Mr Milanko's claim, the proceedings having been commenced more than 3 years after he was injured. 5. A limitation defence was not relied on by Watpac or Concrete Structures Group, that being regulated by Division 6 of Part 2 of the Limitation Act 1969 (NSW), with s 50C providing for a 3 year post discoverability limitation period, running from when the cause of action is discoverable by the plaintiff. Relevantly, that is specified in s 50D to be when it is known or ought to be known that the injury suffered was sufficiently serious to justify the bringing of an action on the cause of action. 6. By motion filed in February 2021, supported by an affidavit sworn on 9 February, Mr Milanko sought leave to commence the proceedings under s 151D(2) of the Workers Compensation Act against the Workers Compensation Nominal Insurer. He also relied on the affidavit sworn by his solicitor, Mr Gabriel. The operation of s 151D(2) of the Workers Compensation Act 1. Section 151D(2) provides: "151D Time limit for commencement of court proceedings against employer for damages (1) (Repealed) (2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 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." 1. There was no issue as to the operation of s 151D or that it was engaged, even though the proceedings had been brought against the Nominal Insurer, given Conbuild Services' liquidation. Its operation was considered in Itex Graphix Pty Limited v Elliott 54 NSWLR 207; [2002] NSWCA 104. There, in summary, it was held: 1. that the broad discretion given by s 151D(2) is not unconfined and may not be exercised on a whim, even though no specific criteria are specified, which the Court must take into account: at [65]; 2. The discretion must be approached in its statutory context: at [69]; 3. The discretion must be exercised in order to do justice between the parties, with the conduct of the applicant being an important factor: at [72]; 4. The onus falls on the applicant to establish that justice requires the discretion to be exercised: at [83]; 5. The general question which must be asked is what is fair and just (per Gleeson CJ in Salido v Nominal Defendant (1993) 32 NSWLR 524): at [87]; 6. The justice of the case must be evaluated by reference to the rationales of the limitation period provided by s 151D, including the four to which McHugh J referred in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 554: at [87]. They are: "(a) As time goes by relevant evidence is likely to be lost; (b) It is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed; (c) It is desirable for people in the community to be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Many in the community have a significant interest in knowing that they have no liabilities beyond a definite period; (d) The public interest requires that disputes be settled as quickly as possible." The Insurer's case 1. GIO is also the Nominal Insurer's agent. It filed three affidavits sworn by its solicitor Ms Bray, which the Insurer ultimately did not rely on, accepting that the prejudice it had earlier relied on, had recently been cured. 2. There was no issue that the accident in which Mr Milanko had been seriously injured had occurred, or that the steps on which he relied to advance his case, had been taken. 3. At the hearing the Insurer thus did not consent to or oppose the leave sought being granted, that being a matter still for the Court to determine. Mr Milanko's case 1. Mr Milanko was injured at work on 20 May 2016 while employed by Conbuild Services, when he fell about 4 metres through a penetration in a concrete floor on a building site, suffering considerable injury. He sought advice in May and in August was advised by his solicitors that he could claim work injury damages, once he had achieved maximum medical improvement and was accepted as having at least 15% whole person impairment. 2. In September 2016 GIO, Conbuild's insurer, issued a s 74 notice, declining further liability. In February 2017 Dr Giblin, Mr Milanko's treating specialist recommended surgery to his lumbar spine which he has not pursued, GIO having declined in February 2017 to approve the surgery, given the s 74 notice. In October Dr Giblin considered that his condition had not stabilised. 3. Mr Milanko decided to pursue a claim for a lump sum compensation for his impairment, that being a precondition to a claim for work injury damages: s 280A Workplace Injury Management and Workers Compensation Act 1998 (NSW). In May 2018 Dr McKechnie was unable to assess the level of Mr Milanko's impairment, but in September 2019 he was finally assessed by Dr Mastroianni as having 19% WPI. In January 2019 Mr Milanko made a claim on that assessment for 19% WPI. 4. GIO then arranged for Mr Milanko to be examined by Dr Rimmer and Dr Sterling. In January and April 2019 GIO was advised that once Mr Milanko's lump sum claim had been determined, he intended to proceed with a work injury damages claim. 5. On 6 May Mr Milanko commenced these proceedings against Watpac Construction. On 23 May 2019 he accepted an offer from GIO, having been assessed by Dr Rimmer as having suffered 17% WPI. It was thus Mr Milanko's case that it was only soon after the expiry of the limitation period, that he could have brought proceedings against his employer. 6. In June Mr Milanko obtained a s 66A complying agreement and a claim under s 282 of the Workplace Injury Management and Workers Compensation Act was made two weeks later. He then pursued a vocational/function assessment and engaged a liability expert. A prefiling statement and draft pleadings were served in February 2020 and in April 2020 an application for mediation was served. 7. Watpac Construction refused to participate in the mediation, as then did GIO, with the result that the Workers Compensation Commission issued a certificate of mediation outcome in May 2020. Mr Milanko's solicitors then filed a motion seeking to join the Nominal Insurer as a defendant in these proceedings, a little more than 1 year outside the s 151D limitation period. Should the leave sought be granted? 1. The Court must be satisfied affirmatively that the leave should be granted: Hole v Gregory Ronald Lyons trading as Greg Lyons Building Constructions [2020] NSWSC 102 at [15]. 2. Mr Milanko's explanation of the delay in commencing these proceedings against the Nominal Insurer establishes that he was diligent in his pursuit of his claim brought against his employer under the Workplace Injury Management and Workers Compensation Act. That resulted in an agreement reached only in May 2019 that he had suffered 17%WPI. He then pursued the necessary mediation, which resulted in the issue of the certificate of mediation outcome in May 2020. 3. It is relevant that during the limitation period Mr Milanko had put GIO, also the Nominal Insurer's agent, on notice of his intention to pursue these proceedings, Conbuild Services having been placed into receivership in September 2016. 4. It must also be accepted that Mr Milanko has reasonable prospects of success, given Conbuild Service's non delegable duty to provide a safe system of work, for its employees, even if other defendants failed in the duty which they owed Mr Milanko. 5. Given the assessment that Mr Milanko has suffered 17% WPI, it is also likely that his damages may be substantial. 6. The Nominal Insurer also now accepts that there is no longer any relevant prejudice flowing from the grant of the leave which Mr Milanko seeks. Liability experts have been engaged and reports are being provided. 7. In all these circumstances I am satisfied that Mr Milanko has met the onus which falls upon him to establish that justice requires the discretion to grant the leave he seeks, to be exercised in his favour. Orders 1. For the reasons given I order that: 1. Mr Milanko is granted leave to commence these proceedings against the Nominal Insurer nunc pro tunc. 2. Costs of the motion 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: 30 April 2021