Carey v Hayedi [2001] NSWSC 589

New South Wales Supreme Court

CITATION : Carey v Hayedi [2001] NSWSC 589 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 11144 of 2001 HEARING DATE(S) : 3 July 2001 JUDGMENT DATE : 16 July 2001

Ian Norman Carey (Plaintiff) PARTIES : v Hayedi Pty Limited (Defendant) JUDGMENT OF : Master Malpass

COUNSEL : Mr G P McNally (Plaintiff) Mr S Burley (Defendant) Stacks - The Law Firm with Goudkamp SOLICITORS : Mahony (Plaintiff) Goldrick Farrell Mullan (Defendant) CATCHWORDS : Leave to commence proceedings out of time - delay, explanation, prejudice, viability of cause of action and fair trial considerations. LEGISLATION CITED : Workers Compensation Act 1987, s 151D. CASES CITED : McLean v Sydney Water Corporation [2001] NSWCA 122. DECISION : See Paragraph 41.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

MONDAY 16 JULY 2001

11144 of 2001 IAN NORMAN CAREY v HAYEDI PTY LIMITED JUDGMENT 1 The plaintiff was born on 8 July 1966. In 1992, he commenced employment with Warners Bay Car Repairs (this was the business name used by Hayedi Pty Limited [Hayedi] ). 2 On 15 July 1993, he suffered injury in a work incident. He was removing and replacing a gear box on a motor vehicle. The task was being performed manually (he says that the workshop was not equipped with a transmission removal stand). Whilst attempting to put the gear box back into the car, he felt a sharp pain in his lower back. 3 He sought medical treatment. X-rays were taken. These showed no abnormality but narrowing of L5/S1 space. 4 Zurich Australian Workers Compensation Insurance Limited was the insurer of Hayedi in respect of both common law and worker's compensation claims. Both the employer and the employee made a report of injury to the insurer. The plaintiff received worker's compensation. He was seen by Dr Roth for the insurer on 5 August 1993. He was considered fit to return to normal duties. This was the view also taken by his general practitioner (Dr Ratcliffe). His compensation ceased on 23 August 1993. 5 He resigned from his employment with Hayedi. Hayedi was later to have financial problems (which were related to the illness of a director) and was deregistered on 8 November 1996. The plaintiff did some casual work as a panel beater. On 7 February 1994, he commenced full time work with Gough & Gilmour Holdings Pty Ltd (Gough & Gilmour) as a panel beater. Because of problems thought to be caused by working in the paint room, he was offered and took up an adult apprenticeship in automotive plant mechanics. 6 On 24 October 1994, he suffered an injury when turning heavy cylinders. He suffered a sharp pain in the upper left of the back. On 22 January 1996, he suffered injury in a further work incident (when lifting the side of a steering clutch off the ground with a crane). He experienced a sudden onset of upper thoracic and lumbar back pain. On 30 November 1997, he experienced a recurrence of lower back pain. 7 On 13 April 1997, he suffered further injury in a work incident. He experienced very severe low back pain following the days' work. Largely, he was off work until June 1997. He returned to work on light duties. 8 By September 1997, his back pain had increased. He stopped work. He has said that he stopped work completely in September 1998. 9 He has undergone medical treatment and physiotherapy. He saw his general practitioner (Dr Woods) and Professor Ghabrial. He had X-rays and a CT Scan of the lumbar sacral spine. These revealed inter alia left postero-lateral disc protrusion at L5/S1. 10 In June 1997, he sought legal advice (Mr Saddington). His instructions referred to both the 1993 and the 1997 incident. Mr Saddington continued to act for the plaintiff until July 1998 when he saw Miss Peta Piper of Stacks - The Law Firm (his present solicitors). Stacks took over the conduct of the matter and obtained the file from Mr Saddington. The plaintiff says that he changed solicitors because of inter alia the inactivity of Mr Saddington. He became aware that he may have common law rights against Gough & Gilmour. 11 He continued to seek medical treatment. Also, he saw other doctors (Drs Smith and Christie). In August 1998, he underwent an MRI of the lumbar spine and a letter of demand was sent to the insurer for Gough & Gilmour. A report from Dr Smith dated 12 October 1998 linked his problems with the 1993 incident. 12 In February 1999, he underwent an L5/S1 laminectomy disc excision and fusion. This was performed by Professor Ghabrial. 13 On 26 March 1999, a brief was forwarded to a barrister (Mr Stephen Campbell). In April 1999, Miss Peta Piper left Stacks. This matter was then taken over by Miss Mead. 14 On 19 July 1999, following numerous unproductive telephone calls, the brief was withdrawn from Mr Campbell and forwarded to Mr Black. On 10 August 1999, an advice was received from Mr Black. This advice (as well as a later advice dated 23 December 1999) is in evidence. Action was taken pursuant to his advice. 15 Proceedings founded on the 1993 incident were in contemplation at the time of the giving of the first advice. Mr Black referred to the real difficulty of attribution (one of the problems was that the doctors lacked the full historical picture). He thought that it was foolhardy to commence proceedings at that stage. 16 On 4 April 2000 proceedings were brought against Gough & Gilmour. Shortly thereafter instructions were given to apply to the court for leave to commence proceedings out of time against Hayedi. The Summons was filed on 13 September 2000. It was brought against the insurer. On 24 November 2000, the application was refused. At that time, Hayedi remained a deregistered company and the relevant legislation provided only for the granting of leave to commence proceedings against the employer who was liable to pay the compensation. 17 Proceedings were then taken to have Hayedi reinstated. An order to that effect was made on 13 March 2001. The present application for leave to commence proceedings against Hayedi out of time was brought on 20 April 2001. It was heard on 3 July 2001. 18 A Notice of Motion has been filed by Gough & Gilmour in the other proceedings for leave to bring a Cross-Claim (for contribution) against Hayedi. As at the date of hearing of this application the Notice of Motion had not been served. The relevant limitation period for the bringing of that Cross-Claim may or may not remain extant. This is a matter of dispute (largely, it turns on a question of statutory construction). The proposed Cross-Claim pleads a case similar to that which the plaintiff seeks to bring against Hayedi. 19 The plaintiff has sworn an affidavit. Affidavits have been sworn by various legal representatives (including a number sworn by Miss Mead). There has been an affidavit sworn by Mr Hirst (as well as a statement provided by his father). There has been cross-examination both of the plaintiff and Miss Mead. 20 In his affidavit the plaintiff in paragraph 34 thereof deposes to the following:- "The reasons that I did not bring a claim in time for the injuries I sustained to my back on 15 July 1993 were because: (i) I believed that I had recovered from the back strain I suffered on 15 July 1993; (ii) I was not seeking any treatment for my 15 July 1993 incident and I believed I had only suffered a minor back strain; (iii) The injury I sustained on 15 July 1993 did not prevent me from returning to work and working up to seventy-five to eighty hours per week as I had been doing with Gough and Gilmour since February 1994." 21 Before proceeding further, I should mention that the material presents a formidable array of detail. I have not sought to exhaustively recite all of the matters that may be relevant (merely certain of them). 22 The plaintiff seeks relief pursuant to s 151D of the Workers Compensation Act 1987. The court has a discretionary power to grant leave. It is exercised judicially having regard to the relevant circumstances of the particular case before the court and so that justice is best served between the parties. The plaintiff bears the onus of demonstrating an entitlement to leave. 23 The parties have referred to the usual authorities. It is unnecessary to identify them once again. Largely, they are the subject of comment in the recent decision of McLean v Sydney Water Corporation [2001] NSWCA 122. The present case does not call for a determination of whether the extension would be just and reasonable. The provision gives "a relevantly unfettered discretion". 24 The application is opposed on a number of grounds. Broadly speaking, the relevant discretionary considerations have been identified largely as delay, explanation for delay, prejudice and the viability of the plaintiff's case. In addition, the plaintiff raises the matter of the potential joinder of Hayedi in the other proceedings. 25 The delay is long. The relevant limitation period expired on 15 July 1996. The rationales for limitation periods are a relevant consideration. There is an abundance of material which goes towards explaining the delay. However, it does fall short of being sufficient in several respects. 26 The delay of itself may give rise to what has been described at times as either presumptive or general prejudice. In addition to that prejudice, the defendant advances a case of actual prejudice (both on questions of liability and damage). 27 The plaintiff's recollection of the 1993 incident and related matters has limitations. He lacks recollection in connection with other injuries. He seems not to be the best of historians. 28 There are the report of injury forms. These provide brief statements as to how the injury was suffered. However, the particulars of negligence reveal that there may be other evidentiary matters relevant to considerations of breach of duty of care. At the time, the incident gave rise only to short term worker's compensation and may not have been the subject of full investigation. 29 The plaintiff says that at the time of the incident he was the only employee of Hayedi. He says that there were two witnesses to the incident. One was Mr Hirst (a director of Hayedi). The other was his son. 30 The material reveals that Mr Hirst is of advanced age and in ill health. He now lacks recollection both of the incident itself and circumstances relevant to the workplace. At all material times, his son has suffered from a mental disability. He also has a lack of recollection. 31 It appears that following action from the bank, the assets of Hayedi (including equipment) were sold. At about this time, company records were destroyed. The plaintiff makes the point that particular records have not been identified as a source of prejudice. Whilst this may be so, a potential for prejudice remains. The work premises may still exist. However, they are no longer used for the same purpose. 32 The plaintiff's version of the incident may be seen as suggesting that his cause of action has potential viability on the question of liability. Mr Black made guarded observations as to negligence. As negligence has been regarded as a developing area, inter alia the question of breach of duty is not usually seen as hopeless when viewed in an interlocutory context. 33 The question of damage gives rise to the problem of attribution. As put on his behalf, it is contended that the plaintiff's condition at least significantly arose from the 1997 incident. However, it is further put, that he faces a dilemma arising from the conflicting medical advice that he has received. In his affidavits he has said that he was advised that it would be prudent to bring a common law claim against Hayedi. 34 There is material (including reports from Dr Smith) which largely attributes his problems to the 1997 incident. There is other material (including reports from Professor Ghabrial) which see the 1993 incident as the cause of the disc protrusion and the 1997 incident merely bringing about an aggravation of it. 35 The plaintiff did not have a CT Scan until after the 1997 incident. Dr Smith was of the view that the plaintiff was suffering from an annular tear which probably occurred in 1993 and that this incident probably did contribute to the likelihood of his developing a protrusion. He thought that the attribution of a lower lumbar disc prolapse in 1993 was not a diagnosis that was justifiable in the absence of CT Scan evidence. He saw the plaintiff as symptom free through 1996. He further took the view that any attempt to quantify the 1993 contribution would be arbitrary. His approach finds strong support in the contemporary investigations and the plaintiff's subsequent history. 36 In contrast to this approach, Professor Ghabrial looked to calcification shown in the subsequent CT Scan as giving support for the approach he had taken. 37 If the limitation period is not extended, the plaintiff faces the possibility of being deprived of recovering full compensation for his injuries, if the 1993 incident is found to be linked to his problems. 38 The assessment of the extent of prejudice can be a difficult task. I have not found it easy in this case. Ultimately, I have come to the view that there is significant prejudice in this case. 39 The authorities demonstrate that a real question is whether the delay has made the chances of a fair trial unlikely. Fairness is a matter of degree and the concept of a fair trial is a relevant one ( McLean ). In the circumstances of this case, I am of the view that a fair trial is now unlikely. 40 The prospects of success of the Notice of Motion brought by Gough & Gilmour remain in the realm of speculation. Apart from the limitation period issue, it can be expected that questions of fact may play a determining role in the application. At present, the evidence remains incomplete in the other proceedings. In any event, if Gough & Gilmour is entitled to the grant of leave, I do not regard that matter as being of significance in the circumstances of this case. The plaintiff's problems in these proceedings arise because of inter alia his delay and the prejudice thereby caused. 41 In the relevant circumstances of this case, I am not satisfied that the onus borne by the plaintiff has been discharged. Accordingly, the application fails. The Summons is dismissed. The plaintiff is to pay the costs of the proceedings. The Exhibits may be returned. **********