New South Wales Supreme Court CITATION : Warren v Novacoal Pty Limited [2000] NSWSC 373 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12111/99 HEARING DATE(S) : 13 April 2000 JUDGMENT DATE : 11 May 2000 Mark Steven Warren (Plaintiff) PARTIES : Novacoal Pty Limited (Defendant) JUDGMENT OF : Master Harrison Mr R Beasley (Plaintiff) COUNSEL : Mr N E Chen (Defendant) Mr Barry F Cosier (Plaintiff) SOLICITORS : J Taylor Sparke Helmore (Defendant) CATCHWORDS : Extension of time - s 151D Workers Compensation Act LEGISLATION CITED : Workers Compensation Act CASES CITED : Szerdahelyi v Bailey (unreported, NSWSC, 1 May 1997); Ortado v Bailey (unreported, NSWSC, 1 May 1997); Lewis v Bailey (unreported, NSWSC, 1 May 1997); Council of the City of Sydney v Zegarac [1997-98] 43 NSWLR 195 and Dow Corning Australia Pty Ltd v Paton, Meares v Paton (unreported NSWCA, 24 April 1998); Martin v Abbott Australasia Pty Limited [1981] 1 NSWLR 430 at 443; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1; BHP Steel (AIS) Pty Limited Giudice (NSWCA, unreported 7 March 1997); Commonwealth of Australia v McLean (NSWCA, unreported 28 July 1997); McAndrew v Wyoming Nursing Home Pty Ltd (NSWCA, 21 November 1997; 5 December 1997, unreported) DECISION : See para 23 12 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON THURSDAY, 11 MAY 2000 12111/99 - MARK STEVEN WARREN v NOVACOAL PTY LIMITED JUDGMENT (Extension of time - s 151D Workers Compensation Act) 1 MASTER: By amended summons filed 13 November 2000 the plaintiff seeks an extension within which to commence proceedings pursuant to s 151D(2) of the Workers Compensation Act (the Act). The plaintiff relied on his affidavits sworn 19 August 1996, 16 November 1999 and 2 December 1999. The defendants relied on the affidavits of Dennis John Feather sworn 9 December 1999, Stuart Heathwood sworn 10 December 1999, Mike Anear sworn 10 December 1999 and Martin Aicken sworn 25 January 2000. 2 I carefully observed the plaintiff giving evidence and being cross examined. I formed the view that he was an impressive and truthful witness. I accept his evidence. 3 A brief history of the matter is as follows. (1) The plaintiff was born on 27 February 1957. He is 43 years of age. (2) In 1981 the plaintiff was employed as an electrician at the defendant's Western Main Colliery. (3) On 27 March 1981 he injured his right knee playing football. In 1982/1983 the plaintiff underwent arthroscopic surgery on his right knee. He returned to full duties as a mine electrician. He resumed playing competitive sports including cricket, basketball, tennis and football. The plaintiff experience a further incident at work prior to 1989 when he had swelling in both knees. He was prescribed anti-inflammatories, rest and icepacks for a few days. He did not take any time off work and had no long lasting effects from this injury. (4) On 8 August 1989 the plaintiff injured his right knee while working at the Colliery. This accident is the subject of these proceedings. He was admitted to Lithgow hospital. After he was discharged the plaintiff continued to experience pain and stiffness in his right knee of varying degrees and intensity. In 1996 the pain and discomfort significantly increased. The plaintiff had to sleep with a pillow between his legs. (5) After the accident the plaintiff became aware that he was having continuing difficulties with his right knee and was unable to move around in confined spaces. He undertook training in order to compete for a job as a safety officer as this would involve less strenuous work. In 1993 the plaintiff gained employment as a safety manager at the Springvale Colliery following the closure of the Western Main Colliery. This is his current job and it involves looking after investigations, implementing safety management and site and safety management plans. He conducts site audits and to do so he is required to go underground once or twice per week for four to six hours per day. He limps and has difficulty walking on uneven, muddy ground and difficult terrain. He used to go underground three to four times per week but due to the pain in his right knee finds it too difficult. (6) On 2 May 1996 the plaintiff underwent right knee arthroscopic surgery performed by Dr James O'Brien. This operation did not resolve the plaintiff's knee problem. (7) Dr Neal Thomson in his report dated 25 February 1997 opined that the plaintiff would be a very suitable candidate for a high tibial osteotomy and this would unload the plaintiff's medial compartment and relieve some of the plaintiff's pain syndrome which should reduce the rate of further deterioration in the medial compartment of his knee joint. So in 1997 in light of this advice the plaintiff was optimistic that with further surgery his right knee would improve and that his knee injury was not permanent. (8) On 8 May 1997 he was admitted to Sydney Adventist hospital where a right knee high tibial osteotomy was performed. On 15 May 1998 the plaintiff underwent further surgery to remove the metal screws from his right knee. (9) After the accident the plaintiff continued with his own physical training program in hope of regaining all his pre-accident fitness in his legs. For several years he continued to perform his pre-accident duties. He denied to himself that his pain was ongoing and increasing and that he was unable to carry out the full range of physical activities which he had been able to do prior to the accident. As the employment situation in the mining industry was and still is unstable he was anxious to avoid "making waves" with his employer. As he believed he would fully recover, he did not turn his mind to seeking legal advice. (10) In July 1998 the plaintiff first sought legal advice. That advice was taken over the telephone at a time when he was providing some information to Mr Cosier, solicitor in relation to another employee of the colliery. The plaintiff was advised to obtain independent medical opinion as to his ability to continue working in the mining industry. The plaintiff did not act upon that advice immediately as he thought he should give his injury a little further time to recover. (11) On 25 February 1999 at the request of Coal Mines Insurance the plaintiff was examined by Dr Millons. Dr Millons stated that by the time the plaintiff was 50 years of age he would need a full knee replacement and the plaintiff's short term future in the mining industry was limited. (12) It was Dr Millon's advice that provided the catalyst for the plaintiff to consult his solicitor. Medical reports were subsequently obtained and served on the defendant. (13) On 26 September 1999 the summons seeking an extension of the limitation period was filed. 4 I turn now to consider whether leave to commence proceedings should be granted. 5 Section 151D(2) of the Act provides: "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 Firstly, I turn to consider whether the plaintiff has established that he has a real case to advance. It has been held in extension of time applications pursuant to ss 58 and 60G of the Limitation Act 1969 that the applicant bears an evidentiary and persuasive onus which, in the absence of concession, requires material to be adduced which demonstrates that the dilatory plaintiff has a real case to advance. (See Szerdahelyi v Bailey (unreported, NSWSC, 1 May 1997); Ortado v Bailey (unreported, NSWSC, 1 May 1997); Lewis v Bailey (unreported, NSWSC, 1 May 1997); Council of the City of Sydney v Zegarac [1997-98] 43 NSWLR 195 and Dow Corning Australia Pty Ltd v Paton, Meares v Paton (unreported NSWCA, 24 April 1998). 7 These cases accord with Hunt J's (as he then was) view in Martin v Abbott Australasia Pty Limited [1981] 1 NSWLR 430 at 443 in relation to a s 58(2) application when he says that the plaintiff must make it appear that the evidence that establishes a cause of action exists and that it is available to be adduced at trial. I can see no reason why this rationale should not be applied to applications to extend time under s 151D of the Workers Compensation Act. 8 The defendant submitted that the plaintiff has not established that there is a real case to advance. The plaintiff was employed by the defendant. The only account of the accident is given by the plaintiff, namely that on 8 August 1989 the plaintiff was driving a shuttle car underground. As he was diving the shuttle car around a pillar of coal, a wheel on the shuttle car struck a pile of timber prop which were lying in a rib adjacent to the roadway, propelling one of the props into the driver's compartment, wedging behind the back of his legs. As a result, his legs were forced up and jammed into the opposite seat which was made of steel. As his legs were forced off the pedals of the shuttle car, the electrically powered shuttle car immediately lost traction and rolled backwards, causing the prop to partially escape from the compartment and wedge itself between the compartment. He was removed from the shuttle car but during this his right knee was dislocated. 9 The defendant owed the plaintiff a duty of care as an employer. The statement of claim alleges that the defendant was negligent in that it or by its servants or agents failed to provide a safe and proper system of work and in particular, failed to ensure that all mine timbers were properly stored away from the roads upon which shuttle cars were driven; exposed the plaintiff to a risk of injury which could have been avoided by the exercise of reasonable care; failed to have any proper regard for the plaintiff's safety; failed to warn the plaintiff of the existence of the said piece of timber and failed to take appropriate action to ensure the plaintiff's safety. It is my view that there is a real case that the defendant had breached its duty of care. 10 There is medical evidence that links the plaintiff's injuries to the accident and that he is permanently and totally unfit for work. It is my view that the plaintiff has a real case to advance in negligence. 11 I turn now to consider whether it is just and reasonable to extend the limitation period. The nature of the discretion conferred by s 31(2) of the Queensland Limitations Act was considered by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR 1. Section 31(2) is almost identical to s 58(2) of the New South Wales Limitation Act. The Court of Appeal has applied Taylor in relation to s 60G in BHP Steel (AIS) Pty Limited v Giudice (NSWCA unreported, 7 March 1997); McLean. In McAndrew v Wyoming Nursing Home Pty Ltd (NSWSC, 21 November 1997; 5 December 1997 unreported) Sperling J held that Taylor and McLean were applicable generally to 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 I turn to consider the effects of delay. 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 determining whether it is just and reasonable to grant leave to commence proceedings I will examine whether the delay has made the "chances of a fair trial unlikely" or whether the defendant would suffer significant prejudice. 17 The plaintiff is a 43 year old man who has suffered a serious permanent injury which materially deteriorated in 1998 and surgery was required. He is likely to have total knee replacement by the time he is 50 years of age and is facing a limited future in the mining industry. If the plaintiff is successful in his claim he would be entitled to a substantial award of damages. 18 The defendant submitted that it will suffer significant prejudice and a fair trial will be unlikely. It is eleven years since the accident occurred. Indisputably there would be presumptive prejudice. The Department of Mineral Resources do not hold any records. However it has not been established that there was an inquiry into the accident and if they would ever have held any records. The employer has conducted searches and cannot locate its records (as opposed to the insurer's records) relating to the plaintiff's accident. The mine has been closed down. The plaintiff gave evidence that although he does not know whether his supervisor completed and forwarded an accident report to the employer, there are two eye witnesses available to give evidence, namely Mr Stephen Walsh and Mr Witchelo. However it is not known whether they have any memory of the accident. 19 The medical records of Dr Fields and Dr Toohey cannot be located. However Dr Fields had very little involvement with the plaintiff's case but Dr Toohey, an orthopeadic surgeon treated the plaintiff in Lithgow hospital immediately after the accident and the plaintiff saw him for a few years after the accident for general advice. The plaintiff's treatment at that time was of a conservative nature. The hospital and ambulance records relating to the admission immediately after the accident are available. (Ex B). The plaintiff was off work for a few weeks after the accident. During that time he was paid workers compensation. It has not been alleged that the insurer's records for this time are unavailable. The whereabouts of Dr Toohey is unknown The previous medical records relating to the plaintiff's 1989 right knee which occurred while training for representative football are available. It was in 1997 and 1998, which is 8 years after the accident, that the plaintiff's knee condition deteriorated to such an extent that it required surgery. These records are all available. 20 The plaintiff has spoken to claims officers and managers concerning the condition of his right knee since 1994. All of the plaintiff's medical reports since 1997 have been forwarded to the defendant's insurer. It was the insurer's doctor, Dr Millons who informed the plaintiff that he would have to undergo a full knee replacement by 50 years of age. It was from this report that the plaintiff became aware that his knee injury was permanent and he would require a knee replacement in the near future. 21 Even with the lack of Dr Toohey's records, the hospital records fill in the gaps regarding the plaintiff's treatment immediately after the accident. This means the general advice given by Dr Toohey relating to a few consultations are missing. While the employer does not have any records relating to the accident, there are witnesses who may be able to give evidence. The insurer is in possession of some records. After taking into account all of these matters I am not satisfied that the chances of the defendant obtaining a fair trial is unlikely. Nor am I satisfied that the defendant will suffer significant prejudice. The plaintiff has discharged his onus and satisfied me that it is just and reasonable to grant leave to commence proceedings. 22 Costs are discretionary. The defendant sought costs. The plaintiff submitted that the appropriate order for costs is that costs be cost in the cause. The plaintiff has sought an indulgence from the court and it my view that he should pay the costs. 23 The orders I make are: (1) Leave is granted to the plaintiff to commence proceedings within 14 days for damages in respect of an accident which occurred on 8 August 1989. (2) The plaintiff is to pay the defendant's costs. ********** Last Modified: 09/25/2000 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.