New South Wales Supreme Court CITATION : PHILLIPS v THE STATE OF NEW SOUTH WALES [1999] NSWSC 681 CURRENT JURISDICTION : COMMON LAW FILE NUMBER(S) : 10147/1999 HEARING DATE(S) : 24 June 1999 JUDGMENT DATE : 7 July 1999 GLENN MICHEAL JAMES PHILLIPS PARTIES : v DEPARTMENT OF EDUCATION AND TRAINING formerly known as DEPARTMENT OF SCHOOL EDUCATION SCHOOL FURNITURE COMPLEX for and on behalf of THE STATE OF NEW SOUTH WALES JUDGMENT OF : Master Malpass COUNSEL : PLAINTIFF: MR L KING SC/MR R TAYLOR DEFENDANT: MR C R R HOEBEN SC SOLICITORS : PLAINTIFF: W H PARSONS & ASSOCIATES DEFENDANT: PIETERSE & PIETERSE CATCHWORDS : Leave to revoke election; leave to commence proceedings; presumptive prejudice. ACTS CITED : Workers Compensation Act 1987 S 151A, 151D (2). CASES CITED : Brennan Taylor v State of New south Wales (1999) NSWCA 159. Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866. DECISION : SEE PARAGRAPH 20. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER MALPASS WEDNESDAY 7 JULY 1999 10147/1999 GLENN MICHEAL JAMES PHILLIPS v DEPARTMENT OF EDUCATION AND TRAINING formerly known as DEPARTMENT OF SCHOOL EDUCATION SCHOOL FURNITURE COMPLEX for and on behalf of THE STATE OF NEW SOUTH WALES JUDGMENT 1 These proceedings were commenced by Summons filed on 22 January 1999. The plaintiff seeks relief pursuant to sections 151A and 151D (2) of the Workers Compensation Act 1987 (the Act). 2 The plaintiff has sworn an affidavit. His solicitor (Mr Parsons) has sworn a number of affidavits. The affidavits annex copy expert reports (including reports from Drs Sundaraj and Benanzio) and other documentation. The plaintiff has been cross-examined. The defendant has not read any affidavit. It has not tendered any documents. 3 I do not propose to embark on an exhaustive recitation of the relevant facts. It suffices to merely mention some of them. 4 On 25 August 1990, the plaintiff suffered personal injury. He was then employed by the defendant as a maintenance officer. The injury occurred whilst he was working at Pendle Hill High School and installing a tool cabinet in a metal workroom. It slipped off a support bar and landed on his left knee. 5 The accident was reported and a compensation claim was made. Pain persisted in his left knee. On or about 14 February 1991, his condition was diagnosed as a type of Reflex Sympathetic Dystrophy. Thereafter, he underwent lumber sympathetic block treatment and a surgical lumbar sympathectomy. Whilst this treatment gave him relief his symptoms did not completely resolve. In about July 1992, he experienced an exacerbation of pain when receiving physiotherapy. He then underwent a series of guanethidine blocks. The symptoms then appeared to improve and he returned to part-time work from home. 6 In 1992, his claim for compensation was settled and he accepted payment of compensation under the Act. There is no dispute that there has been an election to claim permanent loss compensation in respect of the injury in the sense required by s 151A (3) (b) of the Act. 7 He was made redundant by his employer and thereafter he obtained a new job as a driving instructor in 1995. He continued with this work for about a year. 8 In 1997, there was a deterioration in his condition. The problems in his left leg flared up. The pain spread from his leg to other parts of his body. He experienced symptoms in his right knee. In 1998, his condition worsened and there is expert evidence to support the view that the Reflex Sympathetic Distrophy has spread to other parts of his body (including his right knee). 9 Section 151A stipulates that a person to whom compensation is payable under the Act in respect of an injury is not entitled to both permanent loss compensation in respect of that injury and damages in respect of the injury from the employer liable to pay that compensation. The section requires an election to be made. When an election is made, it is irrevocable except that an election to claim permanent loss compensation may be revoked with the leave of the Court. 10 The power to grant leave is conferred by subsection (5). The power may be exercised when the threshold requirements of (a), (b) and (c) are satisfied. 11 In this case, (a) is not in dispute. There is evidence which satisfies (b). Also, there is evidence which satisfies (c). In respect of (c), whilst the defendant does not concede that this requirement has been satisfied, it takes the stance that in the light of the evidence and recent authority ( Brennan Taylor v State of New south Wales (1999) NSWCA 159) it is placed in a position where there is nothing that can be said in opposition on the point. In my view, this approach fairly presents the position in which the defendant is placed. 12 In Taylor , it was said that:- "Assuming without deciding the field of knowledge described above, the effect of para (c) is that it must be asked whether a reasonable person knowing what was known or ought to have been known to the worker would expect the further deterioration in fact suffered by the worker as something more probable than not. If the answer is no, para (c) is satisfied." 13 I am satisfied that the threshold requirements have been met. Nothing was put by way of opposition on discretionary grounds. Accordingly, I grant leave to the plaintiff to revoke the election. 14 Whilst the granting of this relief, removes the bar to the making of a claim for damages brought about by the making of the election, there remains the problem that arises by reason of the time limit prescribed by s 151D (2). The time limit for commencement of proceedings against the employer for damages has expired. The plaintiff now also needs leave to commence proceedings under that provision. Section 151D (2) confers a discretionary power to grant leave. The power is exercised having regard to the relevant circumstances of the case before the Court and so that justice can be best served between the parties. The onus rests with the applicant. 15 Whilst there may be many relevant discretionary considerations, in this case the defendant has advanced one matter only (that of prejudice) in opposition to the granting of leave. 16 There was an early reporting of the accident. The plaintiff has been on compensation. The defendant has had the opportunity to have him medically examined. It is not suggested that it is prejudiced in any way in relation to questions of quantum. The only suggested matter of prejudice is said to relate to questions of liability. 17 The defendant has not placed any evidence before the Court. There is no evidence of any actual prejudice. The defendant merely asserts what it describes as a general prejudice which may arise from delay itself. The defendant relies on what was said in Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866 (in which McHugh J referred to "presumptive prejudice" that arises from delay itself p. 873). The defendant has made specific mention of the fact that memories can be expected to have faded over the years. 18 There may well be presumptive prejudice. If there is, I do not consider that it is a matter which should be accorded great weight. I do not consider that the defendant is placed in a position where it cannot fairly defend itself. It seems to me that a fair trial can still be had. The defendant has had the opportunity to take statements from relevant witnesses. It is not said that relevant documentation has been destroyed or lost. 19 In the circumstances of this case, I am satisfied that justice is best served by the granting of leave. In my view, the relevant onus has been satisfied. 20 I grant leave to the plaintiff to revoke the election made to claim permanent loss compensation in respect of his injury. I grant leave to the plaintiff to commence court proceedings for damages in respect of that injury. The proceedings are to be commenced by the filing of a Statement of Claim within 28 days. The costs of the Summons are to be costs in those proceedings. ********** Last Modified: 07/07/1999 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.