New South Wales Supreme Court CITATION : SILK V ROSSFREIGHT [2000] NSWSC 594 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 11117/2000 HEARING DATE(S) : 28/06/2000 JUDGMENT DATE : 30 June 2000 PARTIES : GARY MAXWELL SILK v ROSSFREIGHT (SYDNEY) PTY LIMITED JUDGMENT OF : Master Macready at 1 COUNSEL : R. Goodridge (P) M.L. Snell (D) SOLICITORS : Grahame Goldberg Partners (D) CATCHWORDS : Workers Compensation. - Application for leave under s 151D(2) of the Workers Compensation Act. - Application granted. CASES CITED : Salido v Nominal Defendant (1993) 32 NSWLR 524; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 DECISION : Paragraph 24 and 25 - 1- THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER MACREADY Friday 30 JUNE 2000 11117/2000 GARY MAXWELL SILK v ROSSFREIGHT (SYDNEY) PTY LTD JUDGMENT 1 MASTER: This is an application commenced by a summons filed on 11 May 2000 for leave to be granted for an extension of time to commence proceedings pursuant to s 151D of the Workers Compensation Act 1987. I will discuss some of the chronology before turning to the principles which are relevant to the application before the Court. 2 The plaintiff alleges that he was injured in an accident at work on 1 February 1995. Under the relevant provision of the Workers Compensation Act any common law claim for damages would have to have been made by 1 February 1998. After his injury the plaintiff filled out an occurrence report at his place of employment and on 7 March 1994 he made an application for compensation payments to the workers compensation insurer. He continued to work for some time thereafter and received a variety of treatments. By March 1996 he was worried about his rights and he contacted his present solicitors. Because he was about to undergo some back surgery the solicitors suggested that he contact them again after the operation when the injury had stabilised. In May 1996 the plaintiff had a L5/S1 interbody fusion and a osteo lateral fusion of L4 through S1 performed by Dr Mathew Giblin. Since this time he has not worked and he has always received workers compensation payments. He had received them occasionally prior to this time when he was off work for some days as a result of manipulations and other matters relating to the treatment of his back. 3 By late 1996 he was still off work and he sought further advice from his solicitors. At that stage, because of the proposed changes to the legislation, he was examined at length by a number of doctors and appropriate medical reports were served on the insurers on 18 December 1996. Workers compensation proceedings were in fact commenced on 13 August 1997. The plaintiff swore to the fact that in January 1998 his condition deteriorated again and he returned to see Dr Giblin who asked for him to have a bone scan. At this stage there was a possibility of further surgery mentioned by Dr Giblin. In April or June 1998 the plaintiff again consulted Dr Giblin and was recommended for further surgery. On 10 September 1998 he had his second operation and at that time the original hardware was removed and there was a regrafting of the L4/L5 with a steffi reinstrumentation and postural lateral fusion. Dr Giblin informed him that it would be a further 18 to 24 months until his condition stabilised. It seems that the plaintiff saw Dr Giblin on a number of occasions in 1999. About the middle of 1999 he was cleared to return to work on light duties. Thereafter further medical advice was obtained. 4 The claim in the Compensation Court came on for hearing on 28 April 2000 and at that time there were detailed conferences with counsel and his solicitors. The was the first time that the plaintiff found out that there might be a right to claim for damages at common law and, as a result, the compensation claim was postponed so that the present application could be made. 5 Section 151D(2) of the Workers Compensation Act provides as follows:- "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 for 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." 6 This section is in almost identical terms to the provisions of s 52(4) of the Motor Accidents Act. That section was considered by the Court of Appeal in Salido v Nominal Defendant (1993) 32 NSWLR 524. At page 532 His Honour Chief Justice Gleeson has the following to say in connection with applications under that section:- To take up the words of Glass JA in McGee v Yeomans, it is not possible by judicial decision to establish in advance categories of case in which it would be fair and just to grant leave to commence proceedings out of time under s52(4). However the following guidelines may be of assistance in obtaining consistency of decision-making: 1. S52(4) confers a discretion which is to be exercised judicially, in a manner that furthers the purposes of the statutory context in which it appears. The immediate purpose, as with any limitation period, is to protect defendants against the injustice of stale claims; the statute is also aimed at promoting forensic diligence. 2. Bearing in mind those statutory purposes, the question is whether, in the circumstances of each individual case, the applicant for leave has demonstrated that it is fair and just that leave should be granted. 3. The diligence, or lack of diligence, shown by a plaintiff or a plaintiff's representatives, in ascertaining and asserting his or her rights will ordinarily be a material factor, as will the extent of the relevant delay, and the reason for it. 4. The nature and extent of any forensic disadvantage to a defendant resulting from a plaintiff's delay will also be material. The effect, if any, of the delay upon the defendant's ability to defend an action is a matter to be taken into account, and may in some cases be of decisive importance. 5. Leave under s52(4) may be refused if it would be plainly futile to grant it, and in that connection an applicant's willingness and ability to give a full and satisfactory explanation of any delays in reporting to police, notifying claims and commencing proceedings will be material." 7 The principles in this case have from time to time been applied in a number of first instance decisions dealing with s 151D of the Workers Compensation Act. 8 The reference by His Honour to leave being refused if it was futile to grant it echoes the statements in a number of cases dealing with other provisions such as s 58 and 60G of the Limitation Act 1969 that it is necessary for the plaintiff to establish that he has a real case to advance. 9 In the present case the circumstances of the accident are clearly deposed to by the plaintiff and concern an occasion on 1 February 1995 when he was unloading a conveyor belt which was laden with parcels of various sizes. He was transferring them to the floor ready to be checked for loading onto a pallet. Apparently the packages were coming to him along the conveyor belt at a fairly rapid rate and near to where he was standing the conveyor belt took a ninety degree turn to the right. Occasionally the cartons and packages would not take the turn and they would back up on the belt. If there was a surfeit of packages coming down occasionally cartons would fall off and land on the floor near where he was working. On the night in question while he was lifting a container off the container belt he turned, moved and tripped over a box which had fallen onto the floor from the belt. He stumbled and fell and immediately felt pain in his lower back. 10 In the circumstances recounted by the plaintiff he would seem to have a claim based upon an unsafe system of work which created a danger in the area where he was working. In this sense there is certainly I would have thought a real case, at least on liability, in respect of the system of work. 11 In dealing with limitations under s 31(2) of the Queensland Limitation Act the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 dealt with the principles relating to the effect of delay. The section was similar to s 58(2) of the New South Wales Limitation Act. The principles referred in Taylor's case to have been applied generally in the statutes of limitation which incorporate provisions for extension of time in the absence of any specific statutory restriction or requirement as to what particular consideration should or should not be taken into account. 12 In Taylor McHugh J referred to the effects of delay in the now often quoted passage at p 8 which states: "The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Secondly, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period." 13 McHugh J at p 10 continued: "The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension." 14 and at page 11 he continued: "Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff's lost right should not be revived than that the defendant should have a spent liability reimposed upon it." 15 Toohey and Gummow JJ (in their joint judgment) expressed themselves in the following terms. "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." 16 In submissions before me the defendant did not point to any particular prejudice apart from the presumptive prejudice referred to in Taylor's case. That this approach was appropriate is illustrated by the fact of the prompt notification both of the injury and of the claim to the insurers. There was also detailed evidence of the extent of the back injury given in December 1996 to the insurers. 17 So far as liability is concerned the insurers had appropriate notice so that they could investigate the circumstances of the incident. The employees who were near to the plaintiff at the time of the incident continued to be employed certainly up until the time when the plaintiff ceased work and had his first operation. 18 The plaintiff's submissions founded the relief upon what was his knowledge of his injuries and prospects for the future. In effect it was submitted that his medical condition had not stabilised and the time when it became apparent that his injuries would continue indefinitely did not occur until well after his second operation. 19 Evidence was given by the lawyer Mr Mickels who was first the clerk and then the solicitor who handled the plaintiff's case. It is clear from his evidence that he was aware obviously of the right for the plaintiff proceed at common law even though he did not initially advise him of this fact. His initial advice concerned the workers' compensation claim and it was at the end of 1996 in the light of the then foreshadowed changes to the legislation that he reviewed his file and arranged for him to be appropriately medically examined so that reports could be given to the insurer. He swore to the fact that by February 1998 although Mr Silk had undergone one operation his condition had not stabilised, it was deteriorating and there was discussion about possible surgery. At that stage he was not confident that Mr Silk would not be affected by the thresholds under s 151G and 151H. Accordingly, he decided to await the stabilisation of his condition notwithstanding the passage of the three year period. His reasons for doing this were no doubt that if proceedings were commenced that was election which could not be changed. The Compensation Court proceedings were adjourned in September 1998 and April and July 1999 because the plaintiff's medical condition following the second operation in September 1998 had not stabilised. The proceedings were listed again for hearing on 28 April 2000 and it was on this occasion with the benefit of the medical reports that were then available, that advice was able to be given to the plaintiff of a real prospect of proceeding for common law damages. 20 On the part of the defendant it was submitted that the situation so far as liability and the plaintiff's medical condition were very much the same now as by late 1996 and that therefore there had not been any appropriate explanation for the delay in bringing the proceedings. That, however, belies the true nature of the problem. 21 The plaintiff had the prospect of a second operation in September 1998 because the first operation had not achieved what was anticipated. He was advised by Dr Giblin in September 1998 that he would expect the second operation to have had a real chance of solving his back problems so that he could get back to work. That, of course, was a prospect which would naturally appeal even though he knew that it would be some 18 to 24 months until his condition had stabilised and he was able to assess whether the operation had been a success. In my view it is not unreasonable for the plaintiff to have waited in the expectation that he may achieve success rather than committing himself to bringing an action at common law. It is human nature that one always hopes that an outcome in these circumstances will be beneficial. That is the normal hope of a person who has suffered an injury and is in pain. 22 In these circumstances it seems to me that there was no lack of diligence on the plaintiff's or his adviser's part in deciding to postpone any common law claim for damages until a real decision could be made in the plaintiff's best interests. 23 There is no demonstrated prejudice other than the presumption of prejudice. In the circumstances of this case it would seem a fairly simple matter for liability to have been investigated at an early stage. Accordingly I am satisfied that it is appropriate that time be extended. 24 I order that the plaintiff have leave to commence proceedings pursuant to s 151D of the Workers Compensation Act 1987 in respect of the accident suffered by the plaintiff on 1 February 1995 at his place of employment provided that such proceedings are commenced within 28 days of today's date. 25 The plaintiff has sought costs. However it seems to me that that matter ultimately ought to abide the result and accordingly, I order that each party's costs in this application be the party's costs in the cause to be commenced by the plaintiff. In the event that the plaintiff does not commence such proceedings, I order the plaintiff to pay the defendant's costs. 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