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. Submissions 1. As Mr McManamey on behalf of the plaintiff succinctly submitted, the test to be applied here as to whether I should grant leave to commence the proceedings late, is the interests of justice. The inquiry has two major elements. The first is the applicant for the extension of time has to give a satisfactory explanation for the delay, noting that it is not necessary to give a "full and satisfactory explanation" as required by the motor accidents legislation, but just a "satisfactory" explanation. Second, I ought to refuse the application if there is prejudice to the defendant that makes the chances of a fair trial unlikely. 2. Mr McManamey submitted that here, in a case where commencement of proceedings is prohibited by sections of the Workers Compensation Act, the Court needs to exercise some care in the way it applies the exercise of its discretion. 3. Mr McManamey submitted that pursuant to s 280A of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), the plaintiff could not make a claim for work injury damages until she could make a claim for permanent impairment compensation. He further submitted that a claim for work injury damages cannot be commenced until the permanent impairment compensation has been paid. He also submitted that a pre-filing statement cannot be served until any threshold dispute has been resolved by medical assessment and in this matter, in effect, the plaintiff was unable to commence the pre-trial procedure until the claim for permanent impairment compensation was resolved on 5 March 2020. He submitted that the Court should also bear in mind that notice was given and a formal claim made on 28 November 2016, and that the defendant on a number of occasions actually considered its position and denied liability, so presumably elements of investigation had to have ensued to allow those denials of liability to be made. 4. Mr McManamey submitted that what is outlined in the plaintiff's affidavit and the affidavit of her solicitor is sufficient to explain what occurred 5. In the context where Dr Sethi's report early on took a view about the liver damage and associated liver sequelae, the defendant had the relevant opportunity to investigate that and certainly had the relevant opportunity to, and did, investigate the psychological and psychiatric injury aspects early on. 6. Mr McManamey argued that whilst the plaintiff now accepts that notice could have been given much earlier under s 280A, this arose from a misunderstanding of those who acted for the plaintiff as to what had to be done when, and that really, there is no prejudice to the defendant identified. Issues were kept live in terms of the Consent Orders entered into in March 2020, and all of these matters can be the subject of the work injury damages claim, with justiciable issues to be pursued in those proceedings to the extent they are available. 7. In short, distinguishing this matter from Gower v State of New South Wales [2018] NSWCA 132, (Gower) Ms Franklin did not know about the limitation period application to her work injury damages claim, and there really is nothing in the evidence tendered that indicates that a fair trial is unlikely. Mr McManamey also highlighted that there was no deliberate decision to allow the limitation period to elapse, but instead, there was a decision to "park" the medical negligence claim and deal with the machinations necessary before the work injury damages claim could be brought, and then, the two would be caught up and proceed together. 8. Mr McManamey acknowledged that it would have been much more appropriate to disclose the existence of the medical negligence proceedings but the question for this application is whether that caused any prejudice by the delay in providing that information, and no such prejudice has been demonstrated. 9. Mr Baran on behalf of the defendant highlighted that there is prejudice to the defendant because it did not have notice at the earliest appropriate opportunity about the medical negligence proceedings, and this has put the defendant at a disadvantage, both in terms of timely investigation and now, if leave is granted, needing to catch up on a number of years of medical evidence and investigations. 10. There is also a problem created for the defendant because it is bound by its pre‑filing Defence, which does not have an automatic ability to be amended to take into account these other issues, and in the absence of real clarity that that leave will be available to it, this disadvantages the defendant. 11. Mr Baran highlighted that the test is one that requires the plaintiff to demonstrate that the effluxion of time has not caused prejudice to the defendant and the defendant does not bear any persuasive onus there, although acting properly, as I would expect Bartier Perry and Mr Baran would do, they have put forward the picture of what they do have in the affidavit evidence. 12. Mr Baran very properly conceded that he could not point to any actual prejudice caused to the defendant in terms of investigation or other matters that arise from the delay or the delay in being informed about these other medical negligence proceedings that clearly significantly overlap with the work injury damages claim. 13. Mr Baran highlighted a number of evidentiary and pleading complexities that would have to be met if leave was given but again, properly conceded that they could not amount to grounding a submission on behalf of the defendant that a fair trial is unlikely. 14. Mr Baran pointed out the principles that apply both in terms of the Court of Appeal statements in Gower and the requirements on all parties to litigation to act in accordance with the overriding purpose rule and s 56 of the Civil Procedure Act 2005 (NSW) to the effect that in determining any matters in this Court, and applying the rules of court in civil proceedings, the court must facilitate the just, quick and cheap resolution of the real issues in the proceedings. Decision 1. Dealing with that matter first, the real issues in the proceedings are the potential overlapping causes of action available to Ms Franklin, and it seems to me this Court has before it two separate proceedings that need to be brought together to properly deal with those real issues that are in dispute. I plan to make some procedural orders about that later. But before we get to that, the question is whether I should grant leave to commence the proceedings out of time. 2. As set out by Basten JA in Gower, at [4], to obtain leave to commence proceedings out of time, these three propositions need to be established: (a) there was a sufficient and acceptable explanation for each period of delay; (b) that (the plaintiff) had a reasonably arguable claim of negligence against the State; and (c) in that case, the conduct of a trial more than possibly seven or eight years since the injury was suffered, would not cause the State significant prejudice so as to render the trial unfair. 3. Paragraphs [22] and [23] of Basten JA's judgment deal with the effect of the requirements of the Workers Compensation Act on the limitation period and that in certain aspects, the limitation period would be suspended. White JA, in paragraphs [35] and [42] and [43] deals with those considerations also. 4. It seems to me that there is a significant basis to distinguish the application of principles to the facts in Gower, to the application of those principles in this case. 5. First of all, unlike Gower, Ms Franklin was not, I find, given the details of the limitation period as it applied to her work injury damages claim until March 2020. There is no evidence that she or her lawyer deliberately allowed the work injury damages limitation period to expire for any reason. 6. Second, in Gower the worker did not provide a full and satisfactory explanation for his delay and nor did his solicitor, but here, I consider both the plaintiff's own explanation for the delay, and her solicitor's to be satisfactory. In using the term "satisfactory" I apply that in particular to the plaintiff herself who was extremely ill for a long period and was clearly reliant on her lawyer's advice and asked questions regularly as to the progress of the proceedings and what she needed to understand. She demonstrated herself that she was waiting for guidance and assistance on those matters. The solicitor's explanation indicated some misunderstanding of the law and some poor decision-making in respect of notification of related proceedings. However, I accept the explanations given are truthful, and to that extent, they are satisfactory and explain the delays. That solicitor's understanding of hurdles and attitudes of the defendant regarding procedural steps that had to be taken, I also accept explain the delay. 7. The other factor that was decisive, or at least very important in terms of exercise of the discretion in Gower, was that the worker's case there on its face appeared weak. However, in this case, I am not prepared to accept that the case is weak. It is complex, particularly regarding causation issues, but it is not weak. 8. The fourth matter in Gower was that there was substantial evidence of actual prejudice in the form of missing witnesses and documents. As Mr Baran has candidly conceded, there is no such actual prejudice here. Counsel for the defendant, as required by both the rules of the Court and the rules of the Bar, must be frank about these matters and I accept entirely that Mr Baran has been, (as he is required to be) entirely frank about that matter. 9. The decision boils down to whether there is some kind of presumptive prejudice by delay, and I am not satisfied that there is. I accept that a great deal of work will need to be done, and it will have to be done in a more compressed period than otherwise, but I do not consider that to be prejudice of the type that leads to a concern that the defendant is unlikely to have a fair trial. Having said that, there will need to be procedural and other orders made that make sure that the defendant is not met with procedural or legal bars as a result of the decision I have made to grant the plaintiff's order sought in her notice of motion. Accordingly, in addition to granting that order, I will make an order that the matter remain under my case management, and note that the order is made on the condition that appropriate orders are made to facilitate any necessary amendments to the defendant's pleadings so that it can meet the more complex issues with which it is now to be faced. Orders 1. The formal orders I make at this stage are: 1. 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. 2. These proceedings are listed for hearing together with the medical negligence proceedings number 2017/235452. 3. Both proceedings are listed for directions before Lonergan J at 9am on 22 May 2023. 4. The defendant is to file and serve its written submissions on the question of costs on the motion on or before Friday 28 April 2023, with a copy to be emailed to the Associate of Lonergan J. 5. The plaintiff is to file and serve her written submissions in response on or before Friday 19 May 2023 with a copy to be emailed to the Associate of Lonergan J. 6. The parties to both sets of proceedings are to liaise regarding proposed directions for the ongoing management of both proceedings and prior to 22 May 2023 are to consider whether there needs to be amendment to pleadings or other directions to facilitate progress of the proceedings. 7. The Court will notify the parties to the professional negligence proceedings 2017/235452 of the orders made today. ********** Amendments 08 May 2023 - Page 3: corrected the title "Revised Ex-Tempore Judgment" Par 1; line 4: changed "included" to "including" Par 3; line 4: added comma after "sequelae" Par 7; line 1: added "and" after "Ms Mackovic" Par 11; line 6: added full stop after "consultant" Par 11; line 7: capitalized "T" to "this" Par 15; line 2: inserted "2016" after February Par 16; line 4: corrected "Albert" to "Alfred" Par 29; line 5: inserted "and" after "Richardson" Par 29; line 7: deleted the word "of" Par 37; line 1: added "s" to "question" Par 37; line 3: deleted the word "that" Par 56; line 7: deleted the word "both" Par 57; line 1: moved the word "presciently" to line 2 after "but" Par 75; line 3: inserted the words "or the delays" after "delay" Page 17: inserted the heading "Decision" Par 86; line 5: inserted "to" after "unlikely" 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: 08 May 2023