New South Wales Supreme Court CITATION : Healey v The Young District Producers Co-op Society Ltd [2001] NSWSC 967 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20563/2001 HEARING DATE(S) : 23 October 2001 JUDGMENT DATE : 31 October 2001 Ronald Patrick Healey (Plaintiff) PARTIES : The Young District Producers Co-Operative Society Limited (Defendant) JUDGMENT OF : Master Harrison Mr TDF Hughes (Plaintiff) COUNSEL : Mr K Andrews (Defendant) G H Healey & Co - Sydney (Plaintiff) SOLICITORS : Leitch Hasson Dent (Defendant) CATCHWORDS : Dismiss proceedings - extension of time - s 151D WCA LEGISLATION CITED : Workers Compensation Act 1987 CASES CITED : New South Wales v Taylor [2001] HCA 15 DECISION : (1) The plaintiff's notice of motion filed 22 June 2001 is dismissed; (2) The plaintiff is to pay the defendant's costs of both motions. 6 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION WEDNESDAY, 31 OCTOBER 2001 MASTER HARRISON 20563/2001 - RONALD PATRICK HEALEY v THE YOUNG DISTRICT PRODUCERS CO-OPERATIVE SOCIETY LIMITED Judgment (Dismiss proceedings; Extension of time – s 151D WCA) 1 MASTER: Two notices of motions were heard. By notice of motion filed 22 June 2001 the plaintiff seeks an order extending the time within which to commence proceedings pursuant to s 1512D of the Workers Compensation Act 1987 (WCA). By notice of motion filed 6 September 2001 the defendant seeks an order that the plaintiff's notice of motion be dismissed pursuant to s 151A(3) of the WCA and s 151D of the WCA. The plaintiff relied on his affidavits sworn 6 August 2001 and 23 October 2001. The defendant relied on the affidavit of Christine Bellemore affirmed 5 September 2001. 2 The defendant submitted that the plaintiff is not entitled to an extension of time because he has made an election under s 151A(5) of the WCA and that the plaintiff is not entitled to obtain leave unless this election is revoked. The election 3 Section 151A(5) of the WCA provides: "If: (a) a person elects to claim permanent loss compensation in respect of an injury, and (b) after the election is made, the injury causes a further material deterioration in the person's medical condition that, had it existed at the time of the election, would have entitled the person to additional permanent loss compensation, and (c) at the time of the election, there was no reasonable cause to believe that the further deterioration would occur, the person may, with the leave of the court and on such terms (if any) as the court thinks fit, revoke the election and commence proceedings in the court for the recovery of damages in respect of the injury." 4 The plaintiff commenced workers compensation proceedings in relation to the same accident for which leave is sought in these proceedings; namely that which occurred on 1 March 1994. On 13 November 1996 Geraghty J delivered judgment. His Honour referred to the medical reports of Dr Cairns who assessed a 2 per cent loss of use of the right leg below the knee, but this did not include a loss of the use of the foot, which he said, was not work related. Dr Andrew assessed a 10 percent loss of use of the right foot, and Dr Hale 15 percent of the right leg below the knee. The judgment records that the plaintiff suffered extensive bruising and swelling; he was unable to walk, and had to use crutches for three to four months. The plaintiff was receiving physiotherapy six times a week until the end of 1994 but this did not lead to improvement in his condition. The plaintiff gave evidence to that court that he had to sell his lolly business after 18 months because of problems he had been having with his right leg. The plaintiff had suffered constant pain, particularly in winter; he experienced a tightness in the back of the Achilles tendon, pain across the top of the foot, and when pressure was placed on the foot, the pain increased. There was also some pain in the calf muscle that extended to the toes. The plaintiff has admitted that he has received the monies as set out in the award. 5 The plaintiff has not sought an order in this court that the election be revoked. The defendant referred to the High Court decision of State of New South Wales v Taylor [2001] HCA 15. 6 The High Court held at para [4] that: "S151A(5)(c) requires the court to determine whether it would be unreasonable for a person to believe that the evidence before the court, concerning the applicant's condition at the time of election, demonstrated that the further deterioration would occur. The reasonable cause for belief is determined by reference to the evidence before the court concerning the applicant's condition at that time and expert opinion as to what the medical prognosis for that condition was at that time. What the applicant knew or ought to have known is irrelevant. If the court determines that it would not be unreasonable for a person to believe that the further deterioration would occur, the application for revocation fails." 7 And at para [13]: "Hence it is the court's view of all the evidence and not the injured person's belief, reasonable or otherwise, that is decisive. On this view, the test for the court is: given the medical condition of the applicant at the time of the election and the expert opinions as to its prognosis at that time, would it be unreasonable for a person to believe that the condition would further deteriorate as it had? The applicant for leave must prove a negative. He or she must show that it would be unreasonable for a person to hold that belief. The applicant will prima facie discharge that onus by tendering evidence indicating that such a belief could not be reasonably held. If a prima facie case is established, the employer has the evidentiary burden of showing that there exists another body of evidence that indicates a contrary conclusion. Ultimately, it is for the court to determine whether "there was no reasonable cause to believe that the further deterioration would occur" in accordance with the test that we have formulated." 8 The plaintiff at paragraph (48) of his affidavit of 7 August 2001 deposed: "The proceedings instituted by my former solicitor came before the Workers Compensation Court in Young in 1996 and with all respect to my deceased solicitor and the barrister that he briefed, it was a unmitigated disaster. In fact I asked them to abandon the matter as I did not believe there were proper medical reports obtained, but after advising me that the Judge may order me to pay all costs I allowed the matter to proceed and received the monies set out in the attached award." 9 Dr Mahoney, an orthopaedic surgeon, has furnished two recent medical reports both dated 6 August 2001. It was Mr Mahoney's view that the plaintiff sustained a permanent disability, which he related directly and indirectly to the accident on 1 March 1994. After deducting an amount for pre-existing changes, Dr Mahoney assessed an added 12½ % permanent impairment of the back. In regard to the right hip and right knee, he assessed a 15% permanent loss of efficient use of the right lower limb at and above the knee, with altered walking posture. Dr Mahoney assessed the condition of the right foot, after deducting an amount for possible pre-existing changes, as a 50% permanent loss of efficient use of the right lower limb below the knee. These losses amounted to a total 65% permanent loss of efficient use of the right lower limb taking into consideration the right hip and the right knee conditions. However, at this hearing, the plaintiff conceded that he still suffers constant pain and his current symptoms are the same as those he was experiencing at the time the Workers Compensation proceedings took place. 10 The plaintiff is currently working six to seven hours per day and because his son is the licensee of the hotel at Young he is able to carry out the casual cleaning work at the hotel at his own pace. The plaintiff can stop and have a rest when the pain in his right foot and right knee or lower back becomes too severe. He is only paid on the basis of 3½ hours per day. 11 Thus the plaintiff received an award for permanent loss of the efficient use of his right lower limb. At that time the doctors were of the view that the plaintiff had lost between 2 per cent and 15 per cent of the efficient use of his right lower limb. Now Dr Mahoney assesses that the plaintiff has lost between 50 per cent and 65 percent permanent loss of the efficient use of his lower limb plus a 12½ per cent permanent loss of the efficient use of his back. At the time of the hearing the plaintiff had been working 18 months after the accident with difficulty. He is presently working on a fulltime basis with difficulty. At the time of the workers compensation hearing, the plaintiff wanted to have his proceedings adjourned, as he believed that proper medical reports had not been obtained. I infer that the plaintiff meant that the medical reports obtained did not reflect the true level of injury to his right lower leg. 12 On one view, the plaintiff's symptoms have not changed. He can still work with difficulty. He still experiences the constant pain that manifested itself from the date of the accident. The plaintiff thought that at the time of the election, his medical condition was worse than that recorded in the medical reports. Dr Mahoney's report gives a higher percentage of injury to the right lower leg and includes the back and he opines that the plaintiff is permanently unfit for work. This is indicative that the plaintiff may have been entitled to additional permanent loss compensation – s 151A(5)(b). 13 However, it is my view after taking into account all of the evidence at the time of the election including the medical condition of the plaintiff at that time and the expert opinions as to the prognosis, that it would have been reasonable for the plaintiff to believe that the condition would have further deteriorated as it has. Or to put it another way there was reasonable cause to believe that further deterioration would occur. Hence the plaintiff's claim falls outside the provisions of s 151A(5)(c). Even if the plaintiff had applied to this court for leave to have the election revoked, such leave would not have been granted for the reasons outlined above. 14 Hence, leave to grant an extension of time within which to commence proceedings would be futile. The plaintiff's notice of motion filed 22 June 2001 is dismissed. Costs are discretionary. Costs should follow the event. The plaintiff is to pay the defendant's costs of both motions. 15 I make the following orders. (1) The plaintiff's notice of motion filed 22 June 2001 is dismissed. (2) The plaintiff is to pay the defendant's costs of both motions. ********** Last Modified: 11/06/2001 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.