NSW AMBULANCE SERVICE v JEFFREY [2003] NSWCA 145

New South Wales Court of Appeal

CITATION : NSW AMBULANCE SERVICE v JEFFREY [2003] NSWCA 145 HEARING DATE(S) : 8 May 2003 JUDGMENT DATE : 8 May 2003

JUDGMENT OF : Mason P at 1; Santow JA at 12; McColl JA at 13 DECISION : Dismissed with costs.

CATCHWORDS : Leave applications - Workers Compensation Act, s151D - plaintiff deferred decision to sue in light of legal advice while resolving to keep position under review. - (ND) PARTIES : NSW AMBULANCE SERVICE v Joseph William JEFFREY FILE NUMBER(S) : CA 40511/02 COUNSEL : Appellant: L King SC/ G Hickey Respondent: G O'L Reynolds SC/ R J M Foord SOLICITORS : Appellant: Turks Legal Respondent: Kingston Swift

LOWER COURT District Court JURISDICTION : LOWER COURT DC 192/01 (Dubbo) FILE NUMBER(S) : LOWER COURT Taylor DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40511/02 DC 192/01

MASON P SANTOW JA MCCOLL JA

Thursday 8 May 2003 NEW SOUTH WALES AMBULANCE SERVICE v Joseph William JEFFREY JUDGMENT

1 MASON P: In the matter of New South Wales Ambulance Service v Jeffrey leave is refused in this matter. We are not persuaded that Taylor DCJ erred in any manner that would attract appellate review of an essentially discretionary decision. 2 His Honour properly instructed himself as to the relevant principles. 3 His seven point summary was not erroneous on any of the three grounds suggested by senior counsel for the claimant. 4 The first suggested ground was that his Honour failed to address the principles stated in paragraphs 88 to 98 of Itek Graphics Pty Limited v Elliott (2002) 54 NSWLR 207, notwithstanding general reference to the decision at the start and finish of the passage in the judgment headed The Appropriate Test for Leave. We cannot accept this submission. The present case is factually distinct from Itek having regard to the firm and apparently final decision which the plaintiff there took after receipt of legal advice. 5 By contrast the plaintiff here made a considered and reasonably open decision in light of the facts and legal advice presented to him in the early 1990s, not to sue at that stage, but to keep matters under review should his condition worsen to such a degree as to make it feasible to consider suing at common law. 6 We do not suggest that every plaintiff who proceeds in this manner will be able to persuade the Court that it is appropriate to grant leave in accordance with section 151D, but this plaintiff did and we see no misapplication of the principles in Itek in his Honour's decision. 7 We observe that it was not put to the plaintiff in cross-examination that he had made an unconditional or final decision not to bring common law proceedings. Indeed the thrust of his otherwise unchallenged evidence was to the contrary. 8 The second and third suggested legal errors were really quibbles about the precise order in which his Honour stated his seven point summary or as to the manner in which he stated point number six. 9 The findings that the claimant did not suffer such prejudice as to make a fair trial unlikely and as to the reasonableness of the conduct of the opponent up to the time when proceedings were commenced were open to his Honour on the facts. 10 As to prejudice, the claimant argued that his Honour failed to give proper weight to the evidence of Dr Cook. We disagree for two reasons. First, Dr Cook's report is taken into account in a proper manner at pages 16 and 17 of the judgment. Secondly, Dr Cook's report does not go so far as to suggest that the Australian Standard, which was published in October 1993, was capable of application to a surface then four years older than it was at the time of the alleged tort. 11 For those reasons the summons is dismissed with costs. 12 SANTOW JA: I agree. 13 McCOLL JA: I agree. **********