Franklin v State of New South Wales (TAFE NSW) [2023] NSWSC 293

Supreme Court New South Wales

Medium Neutral Citation: Franklin v State of New South Wales (TAFE NSW) [2023] NSWSC 293 Hearing dates: 27 March 2023 Date of orders: 27 March 2023 Decision date: 27 March 2023 Jurisdiction: Common Law Before: Lonergan J Decision: The time to commence proceedings in this matter is extended up to and including 1 November 2021 pursuant to s 151D(2) of the Workers Compensation Act. Catchwords: CIVIL PROCEDURE – extension of time to commence court proceedings pursuant to s 151D Workers Compensation Act 1987 (NSW) Legislation Cited: Civil Procedure Act 2005 (NSW) Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW) Cases Cited: Gower v State of New South Wales [2018] NSWCA 132 Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104 Category: Procedural rulings Parties: Alicia Franklin (Plaintiff) State of New South Wales (TAFE NSW) (Defendant) Representation: Counsel: B McManamey (Plaintiff) D E Baran (Defendant)

Solicitors: Slater and Gordon (Plaintiff) Bartier Perry Lawyers (Defendant) File Number(s): 2021/00307765 Publication restriction: Nil

REVISED ex-tempore JUDGMENT 1. The plaintiff in these proceedings, Alicia Franklin, filed a notice of motion on 9 March 2022 seeking an order that time to commence proceedings against the State of New South Wales, namely TAFE New South Wales, be extended up to and including 1 November 2021, pursuant to the provisions of section 151D of the Workers Compensation Act 1987 (NSW). 2. Section 151D(2) provides for a time limit for commencement of court proceedings against an employer for damages, and states that: "A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than three years after the date on which the injury was received, except with the leave of the Court in which the proceedings are to be taken." 1. In support of her notice of motion, the plaintiff has herself sworn an affidavit on 17 March 2022. That affidavit outlines her personal and medical history in relevant detail, as well as the facts surrounding her bullying claim against the defendant, her psychiatric and psychological sequelae, the treatment that she sought in relation to those matters, the medical complications she suffered later in time regarding liver failure and ultimately liver transplant, and the steps she took to engage lawyers to assist her in advising her and preparing her case against her employer and other relevant matters. 2. Significantly, she deposes to the fact that she was not told until 18 March 2020 that there was a requirement to commence proceedings at common law within three years from the date of injury. 3. The plaintiff also relied on an affidavit of her solicitor who had conduct of her matter at the relevant times, a Jasmina Mackovic, who swore an affidavit on 9 March 2022 which outlined her involvement in the matter and annexes various relevant correspondence regarding the progress of the proceedings through the workers compensation route via the Personal Injury Commission, including various correspondence with her client and with the legal representatives of the defendant. 4. The defendant relied on a lengthy affidavit of Michael Lamproglou sworn 21 April 2022 which outlined the history of the proceedings from his client's point of view with an emphasis on the defendant's particular concern that proceedings had been commenced against some treating practitioners and hospitals for heads of damage that are the same as, or overlap with, the damages sought in the common law proceedings against TAFE, and a concern that this other proceeding was not disclosed to Mr Lamproglou or TAFE until it came to his attention by other means in 2020, despite the fact that those proceedings were commenced in August 2017. 5. Mr Baran who appears for the defendant, cross examined Ms Mackovic and noting the plaintiff's ill-health, indicated that he would defend the application based on not cross examining the plaintiff, unless he thought it necessary to do so. 6. The cross-examination of Ms Mackovic was firm but fair. It focused on testing whether, and to what extent, Ms Franklin herself was informed about the limitation period and when, and whether and to what extent a conscious decision was made by those who represent Ms Franklin not to commence work injury damage proceedings until after the limitation period had expired. If that is established the principles in Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104 would apply as a potential disqualifier to granting leave to bring the proceedings out of time. 7. The following relevant facts emerge from the affidavit evidence. 8. Ms Franklin was born on 26 December 1977 and she is married and has two young daughters. Ms Franklin was present in court today with her husband and thus available to be cross‑examined if necessary. 9. In her affidavit she outlined commencing employment with TAFE on the North Coast in 2006, initially as a hospitality teacher and VET Co-ordinator. She outlined some medical difficulties both physical and psychological, some family events associated with short term grief difficulties, and the fact that in about June 2014, she commenced working with TAFE NSW North Coast Institute Market and Services Development Team as a business capability consultant. This is where she first encountered a particular manager, Jo Anne Staverly. 10. The affidavit goes on to outline particular instances of workplace bullying and harassment, including details as to who was present, when events occurred, the nature of the bullying and harassment, the responses by the person in question, and her own emotional responses and psychological distress in relation to these instances. 11. It seems to me the facts outlined would, if accepted, support a claim for bullying and harassment but, of course, that is a matter for another court at another time. 12. She ultimately ceased work on 15 February 2016, and that is the deemed date of injury for the purposes of the proceeding in the Personal Injury Commission. 13. Ms Franklin arranged for a voluntary admission to the Mayo Hospital on 26 February 2016 where she was treated and prescribed certain medications. She was treated by a Dr Richardson and he prescribed, amongst other things, Fluoxetine. 14. She became unwell, on her outline in her affidavit, and was transferred to Manning Base Hospital under the care of a gastroenterologist. She became so unwell that she was placed in an induced coma by August 2016 and was transferred to Royal Prince Alfred Hospital where she underwent a liver transplant. That too had complications. There was a long period in the intensive care unit. 15. In July 2016, Ms Franklin was able to contact Slater and Gordon Lawyers' medical negligence team to assist her in bringing a claim in regard to her medical treatment 16. There were further admissions to hospital and other treatments between then and November 2016. 17. On 3 November 2016 Ms Franklin spoke to Slater and Gordon Lawyers about her workers compensation claim and was given certain advice to lodge a claim and come back for further advice in the event the claim was declined. 18. Annexed to Mr Lamproglou's affidavit is a Workers Injury Claim Form dated 28 November 2016 which identifies the "injury and condition" relevantly as "Major depressive episode aggravating anxiety disorder requiring hospitalisation." In answer to the question: "What happened and how were you injured?" the following answer appears: "Over 12 months my line manager made personal attacks, demeaned and humiliated me in front of colleagues and in one-on-one situations. I was introduced as the "dogsbody", spoken to aggressively repeatedly." 1. It described where the injuries occurred as "In team meetings and in one-on-one meetings and there was exclusion by text." Witnesses are named in the form. In terms of explanation for the delay in reporting, the form stated: "Hospitalisation from February 2016, reacted to medication, liver transplant and critical illness." 2. On 13 December 2016 the defendant advised the claim was reasonably excused, apparently until medical documentation was received. 3. On 2 March 2017 the claim for compensation was declined both in terms of the psychological injury and the consequential liver failure. It seems on this date Allianz the insurer also requested a report from Dr Larkin. 4. On 30 March 2017 Ms Franklin was advised liability had been denied for the psychological injury. 5. It seems in April 2017 Slater and Gordon were formally engaged regarding the workers compensation claim and a retainer was signed. 6. On 7 July 2016 a s 74 Notice was sent denying the claim. 7. On 26 September 2017 it appears that there was a choice of three independent medical examiners provided by Allianz for the plaintiff, by whom she would be examined. 8. On 11 December 2017 the defendant's independent examiner, Dr Chow, advised that the plaintiff suffers from chronic adjustment disorder significantly caused by her employment. 9. Meanwhile, in another part of the Slater and Gordon offices, a Mr Cummings was working on preparing medical negligence proceedings. To the extent I have information about those, it appears a statement of claim was filed on 2 August 2017 and an amended statement of claim filed on 8 December 2017 alleging negligence on the part of a Dr Michael Richardson and Mayo Healthcare Group which trades as Mayo Private Hospital. By the amended statement of claim a Scott Pearson, who was a career medical officer at the Mayo Private Hospital was added. 10. Allegations in that proceeding are directed towards both failures to properly diagnose and treat Ms Franklin's psychological and psychiatric conditions, and allegations that prescribing certain medications and failing to notice her deteriorating gastroenterological health led to her ultimate serious medical condition and the need for liver transplant. 11. Both statements of claim mention that there will be a claim for economic loss, as well as other heads of damage. The statement of particulars filed in March 2018 set out in more detail the heads of damage claimed, which included a claim for past economic loss on the basis of inability to return to work since admission to hospital on 26 February 2016, and a complete destruction of future earning capacity. 12. The evidence reveals that in January 2018, the plaintiff herself sent a letter to Slater and Gordon providing some details regarding errors in a report of Dr Robertson related to medications taken by her. It seems that that relates to a report of Dr Robertson of November 2017. She had also been assessed by a Dr Bolin, who produced a report in December 2017, but that too, apparently, needed to await some supplementary analysis and observations. 13. In April 2018, Ms Franklin wrote to Slater and Gordon by email asking for a progress report. 14. On 24 May 2018, Ms Franklin wrote to Slater and Gordon saying she was concerned about the delays associated with Dr Bolin's report. 15. On 24 June 2018, apparently a conference was lined up with counsel. The details of what was discussed is not mentioned in Ms Franklin's affidavit, and I can only assume, given the thoroughness of her other observations, that it was not a conference that she attended. 16. Ms Mackovic's affidavit refers to a conference on 29 June with counsel to discuss the medical reports obtained in the work injury damages matter and their impact on any medical negligence claim, as well as discussing future conduct of the claim. Ms Mackovic says that following this conference, it was determined that it would be appropriate for Associate Professor Robertson to review the clinical notes of Dr Larkin and provide some further clarification in relation to pre-existing bipolar condition as well as whether these notes change anything that he had previously said in his report. 17. There is nothing in Ms Mackovic's affidavit or in any of the questions asked of her in cross examination that indicate that at that point, or at any point prior to March 2020, Ms Franklin was actually advised about the three-year limitation period. 18. On 15 July 2018, a report of Dr Sethi came into existence. Dr Sethi is a consultant gastroenterologist and hepatologist. He was retained by Turks Lawyers for Allianz. He formed the view that the prescription of antidepressant medications did have some contribution to the developing liver failure and subsequently requiring liver transplant, however, as he has detailed, for the reasons he has set out in his relatively short report, it was a "relatively minor factor and clearly not the major contributory factor." He goes on to say that the major factors were longstanding excessive alcohol consumption and obesity. He explains further his reasons for those conclusions. 19. On 21 August 2018, no doubt with the assistance of Dr Sethi's analysis, the defendant again denied liability for the consequential liver failure aspect of the workers' compensation claim. 20. It seems that a supplementary report from Dr Robertson arrived in late August, and in October, another supplementary report from Dr Bolin. 21. There does not seem to have been much action between August and the following year, and then on 17 April 2019, the plaintiff sent another email to Slater and Gordon setting out the medications that she was taking, and that they were all due to liver failure. 22. On 5 July 2019, there was a claim for permanent impairment benefits and weekly payments on the basis of psychological injury and consequential liver injury; (this is the lump sum damages claim). But nothing was said at that point about the intention to bring work injury damages claim. 23. On 14 June 2019, the plaintiff sent an email to Slater and Gordon requesting an update, and that was responded to by Ms Mackovic on the following Tuesday 18 June with "I'm going to be speaking to Tim (Mr Cummings) about your claims and following that conversation I will update you further." 24. On 24 July 2019, liability for the psychological injury was again declined, which has the status of dispute confirmed. 25. On 16 October 2019, the defendant denied liability for permanent impairment compensation and maintained the denial for weekly compensation. 26. On 23 January 2020 there was an Application to Resolve a Dispute filed, claiming weekly compensation and permanent impairment compensation for psychological injury and consequential liver injury. The issue here was whether or not the plaintiff had an "injury" within the meaning of the Act and whether there was a whole person impairment entitlement to workers' compensation at all. 27. On 5 March 2020 Consent Orders for payment of compensation for 30% whole person impairment for psychological injury were signed. As was pointed out by both counsel, there are some subtleties associated with this document, in that the claim for compensation, in respect of the consequential condition, was discontinued, that being the complaint about the liver and gastrointestinal issues and liver failure and transplant and associated sequelae, and the claim for weekly compensation was discontinued. There were notations on the Consent Order (which was converted to a Certificate of Determination Consent Order.) 28. First, note number 1 says that: "Without the admission of liability, and on a without prejudice basis, the respondent will pay the applicant's past medical expenses, if otherwise occurred in accordance with the Act relating to the alleged consequential condition". The second notation was that the parties agreed that the above is the applicant's one claim for the purposes of section 66 and agreed the respondent has entered into this settlement on the basis of that agreement. The third notation was that the applicant undertakes not to reinstate any claim for weekly compensation until a decision has been made in relation to work injury damages. 29. Slightly conflicting submissions were made about the implications of that Consent Order. Mr McManamey, on behalf of the plaintiff, submitted that what that meant is that the consequential injury aspect of the claim was kept live for pursuit via a work injury damages claim if thought appropriate, and Mr Baran, for the defendant, submitted that really what this indicated was an abandonment of the consequential injury claim, and therefore this fed into prejudice and disadvantage to the defendant, given it proceeded a certain way with its defence of the work injury damages proceedings when they were ultimately filed, on the understanding that these Consent Orders represented a final position in relation to the dispute. 30. Ms Mackovic, in cross examination, noted that she was on maternity leave for the first half of 2020 and was not present when these Consent Orders were made, and it seems a solicitor, Mr Manokarathas, was acting. He wrote a letter to Ms Franklin on 18 March 2020, which Ms Mackovic described as the standard Slater and Gordon letter for work injury damages claims, in which Mr Manokarathas referred to their recent conversation and confirmed that it is his opinion that, "you are entitled to bring a claim for work injury damages against your former employer, TAFE New South Wales, in respect to the injuries you received to your back on 16 February 2015." (Obviously, this is a form letter that was not even appropriately adapted for this particular claim). The letter then goes on to talk about who the claim is brought against and what benefits that can be claimed and what happens to compensation payments if "you succeed." Under the heading, "Time Limits", the following is stated: "I understand that you are interested in investigating your work injury damages entitlements. Strictly speaking, there is a period of three years in which to commence a work injury damages claim." 1. Ms Mackovic explained this part of the letter as indicating to clients that whilst there is a three-year limitation period, there is an element of flexibility about it and that is what is sought to be communicated by those observations in that form letter. 2. I accept this was the first time Ms Franklin had been advised at all about the existence of the three‑year period within which to commence a work injury damages claim. 3. I note that there is a deal of complexity regarding the requirements under the Workers Compensation Act and the operation of the Personal Injury Commission, what can be forwarded, when it can be forwarded, how long has to be allowed for defendants to respond, what has to be done before certain next steps can be taken. I accept entirely that a member of the public dealing with a claim in those circumstances has little prospect of clarity if it is not carefully and thoroughly explained to them by a lawyer and even then there can be confusion. 4. On 4 May 2020 the defendant was served with the Work Injury damages claim letter which was, in effect, notice under ss 281 and 282 of the Workers Compensation Act. 5. On 18 May 2020 the defendant requested particulars, as is proper. The particulars requested, amongst other things, asked the following: "42. Does the plaintiff consider that any third party is or may be responsible for the injury? If so, please identify the third party and detail their alleged role in the plaintiff's injury. If proceedings have been commenced against any such party please provide copies of all pleadings and advise of the current status of the proceedings." 1. The response provided to this request six months later was: "No, however, you should rely upon your own inquiries." As observed during argument, this is an unfortunate and misleading response. It should not have been given in those terms. The proper response would have been to advise of the medical negligence proceedings and assist with the provision of pleadings and other relevant medical documents, particularly given by then it was crystal clear there would be significant overlap in terms of causation, injuries and damage with both sets of proceedings, both proceeding as they were in this Court. 2. On 13 July 2020 there had been an email by Ms Franklin asking her solicitor for an update on the work injury damage claim, but presciently raising the following questions: "Does the WID have anything to do with my medical negligence claim? If so, does it increase the existing projected damages? I am a bit confused as to how it all works now and require information." 1. The response provided by Mr Manokarathas a little later that morning was as follows: "As previously discussed, the WID claim has to be brought at the same time as the medical negligence claim. The medical negligence claim will remain "parked" until the WID claim essentially catches up. The WID claim is for economic loss only. It does not increase the damages. It simply apportions the damages between the workers compensation insurer (economic loss only) and the medical negligence insurer. The benefit of having the workers compensation insurer at the table is that the more parties you have at the table the greater chance of reaching a settlement. Attached is a request for further particulars which I now require your assistance in answering." 1. The email of Mr Manokarathas, as far as it deals with the need for the WID and medical negligence claims to proceed together, is correct, but the idea, if it was his idea, that somehow the work injury damages defendant insurer should not be informed about the medical negligence proceedings, was very wrong. Interestingly, in the annexed extract from the requests for further and better particulars, a response was sought from Ms Franklin only in respect of identified numbers from the request for particulars, and those numbers did not include number 42 which was the question "are there other proceedings". 2. I should note that Mr McManamey sought to argue that because the word "injury" has a special meaning in workers compensation proceedings, which I do not doubt, that somehow there was an interpretation issue able to be taken in respect of request 42 and that may well explain why the answer that was given was given. I should say I reject that argument given it is crystal clear what is being sought there and that information should have been provided and was not. 3. On 27 January 2021 the pre-filing statement was served on the defendant and time ceased to run. I accept that there was no real delay of any kind that needs explanation between the providing of particulars on 11 November 2020 and the service of the prefiling statement, given the time frames under the legislation to allow the defendant to investigate its position. Apparently, the pre-filing statement included the statement from Ms Franklin, draft pleadings, expert reports and economic loss material. 4. Ms Mackovic gave evidence regarding a number of her decision-making instances being affected by a perception that the defendant may well take a particular procedural objection if things were not done perfectly. Ironically the pre-filing statement was said to be defective and the defendant actually filed an application to cure the defective prefiling statement. That required determination by the Personal Injury Commission and was determined in the plaintiff's favour. 5. On 29 October 2021 the statement of claim was filed. It seems the way the defendant became aware of the medical negligence proceedings was not, as it should have been, the plaintiff's solicitor telling them, but on 14 July 2020 there was a subpoena issued by Avant Law in the professional negligence proceedings requesting documents.