District Court New South Wales Medium Neutral Citation: Klimovska v George Weston Foods Limited [2012] NSWDC 246 Hearing dates: 16/11/2012 Decision date: 16 November 2012 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: 1. Leave granted under section 151D of the Act to commence proceedings within 14 days. 2. Plaintiff to pay the defendant's costs of the application for leave. Catchwords: WORKERS COMPENSATION - leave to commence proceedings outside limitation period - lack of adequate explanation for delay - injuries unresolved at time of expiration Legislation Cited: Workers Compensation Act 1987 s 151D Workplace Injury Management and Workers Compensation Act 1998 ss 81, 282 Cases Cited: ASB-Tech Services Pty Ltd (In Liquidation) v Doeland & Anor [2003] NSWCA167 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Campbell v State of NSW [2002] NSWSC 230 Holt v Wynter (2000) 49 NSWLR 128 Itek Graphix Pty Ltd v Elliott [2002] NSWCA104 Parsons v Doukas (2001) 52 NSWLR 162 Rufo v MacMartins Pty Ltd (SC(NSW), Master Malpass, No 300085/96, 28 August 1996, unreported Saad v J Robins & Sons Pty Limited [2003] NSWCA 87 Salido v Nominal Defendant (1993) 32 NSWLR 524 Texts Cited: Butterworths, Mills Workers Compensation New South Wales Category: Principal judgment Parties: Lubica Klimovska (plaintiff) George Weston Foods Limited (defendant) Representation: Mr G Hickey (plaintiff) Mr C Robertson (defendant) Paramount Lawyers (plaintiff) Moray & Agnew (defendant) File Number(s): 2012/304406 Publication restriction: No Judgment ex tempore 1By summons the plaintiff, Mrs Lubica Klimovska, seeks leave under s 151D of the Workers Compensation Act 1987 ("the Act") to commence proceedings outside the limitation period provided by that section. Although the summons does not say so I have proceeded on the assumption that the plaintiff seeks leave to commence within 14 days of today's date. 2The evidence in the application consisted of three affidavits, one by the plaintiff, one by the plaintiff's solicitor and one by the defendant's solicitor. There were no objections to those affidavits and no cross-examination. 3The affidavit of the plaintiff's solicitor included a chronology, which was not in dispute. It sets out the relevant history of the matter as follows: "CHRONOLOGY 26/9/2007 Sustained injury in a fall at work. Reported to employer and completed claim form. Transported via ambulance to Dr Antoun in Chullora then referred to Bankstown Hospital, underwent x-ray right shoulder and right hip. 10/10/2007 MRI scan right shoulder 29/10/2007 MRI right knee 13/11/2007 Right shoulder arthroscopy 12/12/2007 Cortisone injection to right shoulder and right knee 20/06/2008 Arthroscopy performed by Dr Rahme 27/06/2008 Ultrasonic scan right calf 29/08/2008 Right hip ultrasound 24/10/2008 Acromioplasty, extension of degenerative spurs and a subacromial bursectomy performed by Dr Rahme at Sydney Private Hospital 3/04/2009 Instructed C & M Lawyers 22/04/2009 CT scan cervical spine, CT brain scan 12/05/2009 Injection of the acromio-clavicular joint performed by Dr Dugal 11/07/2009 C & M Lawyers serve s281 and s282 notices on Moray &. Agnew Lawyers (for WCC claim & WID claim) 22/07/2009 C & M Lawyers serve s66/67 lumps sum claims on Moray & Agnew Lawyers 24/07/2009 CT guided injection into right hip performed by Dr Dugai 4/08/2009 Employment with George Weston Foods t/as Tip Top terminated 07/08/2009 Right sided trochanteric bursal cortisone injection to right hip performed by Dr Dugal 09/10/2009 MRI right hip 19/10/2009 Counter s66/67 offer by Moray & Agnew Lawyers served on C & M Lawyers relying on report of Dr Millons who determines 17% WPI 22/10/2009 Further counter offer from C&M Lawyers served on Moray & Agnew Lawyers 05/11/2009 Moray & Agnew serve counter offer enclosing Complying Agreement for execution 12/11/2009 s66/67 Complying Agreement executed and sent to Moray & Agnew Lawyers 07/01/2010 CT scan right hip, Xray right hip 02/02/2010 CT guided hip injection 01/03/2010 MRl right shoulder 24/03/2010 Underwent total hip replacement performed by Dr Nabavi at Campbelltown Hospital, hospitalised for 3 weeks 31/03/2010 Post operative x-ray of right hip 09/06/2010 Attends on specialist Dr Jerome Goldberg, orthopaedic surgeon. Has also attended on specialists Dr Dave, Dr Rahme, Dr Ireland and Dr Nabavi. Remains in the care of Dr Kafiris 28/09/2010 3 years since date of accident 03/12/2010 Plaintiff sees Dr Ellis for further WPI assessment 24/01/2011 C & M Lawyers serve report of Dr Max Ellis dated 8 December 2010 together with Amended Section 281 & Section 282 notice (for WCC & WID claims). Dr Ellis determines 45% WPI. Further claim made for s 66/67. 08/02/2011 Letter from Allianz to Dr Ellis requesting further details 24/02/2011 Letter from C&M Lawyers to Allianz enclosing Dr Ellis supplementary report 22/03/2011 Moray & Agnew Lawyers deny liability for injuries and deny liability relating to work injury damages claim 19/04/2011 Moray & Agnew Lawyers serve report of Dr Bosanquet dated 24/3/2011 determining 29% WPI and make counter s66/67 offer 03/06/2011 Plaintiff instructs JDM of Paramount Lawyers 03/06/2011 Paramount Lawyers write to C & M Lawyers requesting file transfer 09/06/2011 Jason Di Michiel telephones Robert McKenna, solicitor from Moray & Agnew to advise of change in solicitor 15/06/2011 Paramount Lawyers write to Moray & Agnew confirming change of solicitors 15/06/2011 C&M respond to Paramount request via email confirming file transfer is forthcoming 20/06/2011 Paramount Lawyers send further follow up email correspondence requesting file transfer from C & M Lawyers 21/06/2011 Paramount Lawyers formalise settlement of claim for further lump sum compensation serving executed s66A Complying Agreement dated 21/6/2011 on Moray & Agnew Lawyers. Agreement is for 29% WPI as per the opinion of Dr Bosanquet 12/07/2011 C & M Lawyers send file to Paramount Lawyers 20/07/2011 Client admitted to hospital due to breathing difficulties 29/09/2011 Paramount Lawyers arrange further medico-legal assessment for January 2012 06/10/2011 Paramount Lawyers write to employer confirming workers compensation claim now finalised and work injury damages claim to follow, in addition to requesting comparable earnings. Further letters together with signed authorities sent to Centrelink, WorkCover NSW & ATO including GIPA application 06/10/2011 Paramount Lawyers serve s281/282 particulars on all parties 07/10/2011 Paramount Lawyers commission liability expert report 07/11/2011 Paramount Lawyers cancel January medico-legal appointment as Plaintiff advises she is scheduled to undergo further surgery in February 2012 11/01/2012 Paramount Lawyers chase up completion of expert report 18/01/2012 Paramount Lawyers serve pre-filing statement on all parties 15/02/2012 Moray & Agnew Lawyers deny liability and serve pre-filing defence 29/02/2012 Dr Nabavi performs hip arthroscopy and bursectomy of greater trochanter 05/03/2012 Paramount Lawyers file application for mediation of a work injury damages claim (x3), pre-filing documents, proposed SOC & SOP and all supporting documentation, to Workers Compensation Commission 07/03/2012 Workers Compensation Commission returns incomplete application for mediation due to use of out-dated form 16/03/2012 Paramount Lawyers re-lodge application for mediation in correct form 22/03/2012 Plaintiff instructs Paramount she requires further surgery, is receiving ongoing treatment, Plaintiff further instructs to hold off on completion of claim until further surgery and treatment is sought, requests are made for insurer to pay future surgery 02/04/2012 Attends orthopaedic surgeon Dr Matthew Lyons 13/04/2012 Paramount Lawyers serve expert liability report on Moray & Agnew Lawyers 30/05/2012 Plaintiff confirms surgery scheduled for 07/06/2012 07/06/2012 Plaintiff undergoes hip replacement surgery 26/06/2012 Application for mediation filed on workers compensation commission and served on all parties together with certificate of service 09/07/2012 Workers Compensation Commission rejects lodgement due to use of outdated form 10/07/2012 Application for mediation re-lodged in correct format as requested 13/07/2012 Paramount Lawyers re-serve sealed application for mediation on all parties 16/07/2012 Paramount Lawyers lodge certificate of service with Workers Compensation Commission 19/07/2012 Allianz write to Paramount Lawyers regarding issues with late payment of the Plaintiff's weekly payments 24/07/2012 Workers Compensation Commission write to Paramount Lawyers confirming notice of mediation conference 24/07/2012 Moray & Agnew file sealed response to the application for mediation of a work injury damages claim 31/07/2012 Mediation is listed for 06/09/2012, all parties informed 4/08/2012 Paramount Lawyers write to Moray & Agnew Lawyers requesting up to date list of all workers compensation payments 30/08/2012 Paramount Lawyers request list of payments from Allianz Insurance 06/09/2012 Mediation 03/10/2012 Further GIPA application on Workcover Authority of NSW 03/10/2012 Paramount Lawyers serve Summons and Plaintiff's affidavit on all parties 05/10/2012 Paramount Lawyers serve signed agreement to injury management plan on Allianz insurance 11/10/2012 Moray & Agnew Lawyers file District Court Appearance 26/10/2012 Moray & Agnew Lawyers serve unsealed affidavit of Robert McKenna" 4The affidavit of the plaintiff included within it a limited explanation in relation to the delay in making this application of some two years since the expiration of the limitation period under s 151D. She says in paragraphs 34 to 37 of her affidavit: "34. I have no knowledge of any time limits in relation to my claim. 35. I was aware I could make a claim for workers compensation but knew nothing else in relation to my entitlements. 36. The legal representatives of the insurance company refused to make me an offer at mediation due to their issue with Section 151D of the Workers Compensation Act. 37. Since April 2009 I have left it up to C & M Lawyers and, more recently, Paramount Lawyers, to deal with my claim as they see fit." 5The plaintiff says that leave should be granted, because the plaintiff has suffered significant injuries which were not resolved at the time of expiration of the three-year period. The defendant says leave should be refused, because there was a lack of an adequate explanation by the plaintiff. 6The defendant makes no assertion of prejudice, whether actual or presumptive, perhaps because well within the limitation period the plaintiff served the statutory notice under sections 281 and 282 of the Workplace Injury Management and Workers Compensation Act 1998, a pre-condition to a damages claim under that Act. 7No dispute was raised about the plaintiff's submission that the plaintiff's condition had worsened after the expiry of the limitation period on 26 September 2010. As the chronology reveals the plaintiff underwent a total hip replacement on 24 March 2010. The plaintiff's lawyers served a medical report on 24 January 2011 evidencing an increase in whole person impairment to forty-five per cent, an increase from the earlier figure of seventeen per cent agreed in November 2009. Ultimately, the parties agreed on twenty-nine per cent whole person impairment in June 2011. 8On 29 February 2012 the plaintiff had a hip arthroscopy and bursectomy of greater trochanter and further hip replacement surgery on 7 June 2012. It is submitted that the plaintiff was only able to pay for these operations, because of her Workers Compensation entitlements and that those entitlements would not have been available had proceedings been concluded prior to the operations. 9The defendant says that notwithstanding this worsening condition the plaintiff should not be granted leave because of the failure to provide an adequate explanation for the delay. It is submitted that the need for the plaintiff to have an operation did not preclude the commencement of proceedings. The proceedings could have been placed in the "not ready list" and further that the plaintiff could have obtained leave to amend the pre-filing statement in respect of any increased or worsening medical complaints. 10In relation to the decision to grant leave there is authority for the importance of an adequate explanation for the delay: see Gleeson CJ in Salido v Nominal Defendant (1993) 32 NSWLR 524 at 530. In Holt v Wynter (2000) 49 NSWLR 128 a five member bench of the Court of Appeal applied the test espoused by Toohey and Gaudron JJ in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 550: "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." Although this quoted passage dealt with a different limitation provision it was adopted by the Court of Appeal in Holt v Wynter to have application to section 151D(2). The principal judgment in Holt v Wynter was delivered by Sheller J and in Parsons v Doukas (2001) 52 NSWLR 162 Sheller J reiterated that approach. 11However, in Itek Graphix Pty Ltd v Elliott [2002] NSWCA104 the Court of Appeal (per Ipp AJA, with whom Spigelman CJ and Sheller JA agreed) determined that those remarks were not intended to be applicable to a case involving a lack of diligence on the part of an application for leave (at [55]) nor, it seems, to "a deliberate decision to allow the limitation period to expire." (at [62]). 12In Itek Graphix the reasonableness of the explanation for the delay was held (at [82]) to be a relevant consideration for leave although it was recognised (at [88]) "that often a failure satisfactorily to explain the delay will not be decisive. Ordinarily the issue of prejudice will be of paramount importance." Further, (at [91]) "A deliberate decision to allow a statutory limitation period to expire would be a powerful factor against a grant of leave" and (at [98]): "In my opinion to grant leave to sue long after the expiration of a limitation period, when the applicant has made a deliberate decision to allow the statutory period to expire, in the absence of special circumstances explaining satisfactorily the conduct of the applicant, would set at naught the purpose of the legislation." 13Mr Robertson, who appeared for the defendant, also referred the Court to the decision of ASB-Tech Services Pty Ltd (In Liquidation) v Doeland & Anor [2003] NSWCA167. The judgment of the court was delivered by Hodgson JA. His Honour (at [30]-[33]) emphasised the need for the applicant to provide an explanation for the delay including, in an appropriate case, evidence whether by documents or otherwise from the plaintiff's solicitor. 14At [34] Hodgson JA stated: "The correct approach is to regard the provision of an explanation as a necessary step in the application, and the nature of the explanation as being a matter which has to be taken into account in the ultimate determination of whether it is fair and just to grant the extension. The weaker the explanation, the greater the need to show that there would be little prejudice to a respondent." 15In my view, the explanation proffered by the plaintiff in her affidavit, quoted above, is not a full and satisfactory explanation. 16Mr Hickey for the plaintiff sought to supplement that explanation by inferences from the chronology to the effect that there were other justifying reasons for the delay, namely, the unresolved and increasing medical problems of the plaintiff, the continuing need for the plaintiff to receive medical treatment which, he submitted, she could not afford to undertake except by reason of her Workers Compensation benefit which would have been unavailable if her damages claim had been finalised. It was common ground that those medical expenses could not be part of any damages claim. 17I was referred to the decision in Saad v J Robins & Sons Pty Limited [2003] NSWCA 87. Santow JA, agreed to by Mason P and Hodgson JA, stated (at [60]): " I consider that the decision not to bring common law proceedings is sufficiently explained by the diary notes, though the explanation leaves something to inference. One may properly infer that the Appellant did not want to bring common law proceedings against his employer whilst (a) his job continued; (b) he was receiving payments under the Act from his employer; (c) his condition had not stabilised but was getting worse; (d) while he had hope of a substantial payment under the Act by way of settlement and commutation; (e) there would be potential legal impediments; and (f) he had received no legal advice to commence proceedings at common law till very late. But the point was reached where his condition had worsened, where his job was terminated and no commutation payment was forthcoming. At that time, the inhibition against any proceedings would simply have been a potential legal impediment in revoking his election. Reasonably enough, with the benefit of legal advice, he then commenced proceedings in common law." 18His Honour then distinguished that decision from the Itek Graphix decision where there had been a deliberate decision to allow the limitation period to expire. In my view, the decision in Saad v J Robins & Sons Pty Limited seems closely to approximate the circumstances of the plaintiff in this case. 19The evidence does not enable me to find whether the ultimate decision not to commence proceedings within the limitation period resulted from a deliberate decision of the solicitor not to commence or alternatively from some failure, perhaps negligence, on his behalf to consider the matter. 20The evidence of the plaintiff, which was not objected to and not challenged by any cross-examination, at least confirms that she played no role in that decision or omission. 21I am not persuaded that the decision of a solicitor, deliberate or negligent, is determinative of whether a grant of leave is appropriate, although it is a matter to be taken into account. The decision of Salido (at [530]) indicates that a lack of forensic diligence by a solicitor is of no assistance to the plaintiff in an application for leave (see also Rufo v MacMartins Pty Ltd (SC(NSW), Master Malpass, No 300085/96, 28 August 1996, unreported) referred to in Mills Workers Compensation Practice (NSW) at p 4897). According to Itek Graphix neither would a deliberate decision to allow the limitation period to lapse give any assistance to the plaintiff. 22Of course each case must be considered on its own merits. In this case it seems to me to be relevant that the plaintiff has suffered a significant and worsening injury, that there is the existence of some, although admittedly a very limited, explanation, that there was an early notification of a potential claim by the section 281 notice, and perhaps especially because there is no actual or presumptive prejudice asserted and also because there seems to be commercial and medical reasons, in view of the medical operations needed by the plaintiff, for her not to conclude her damages claim. All of these matters are relevant and assist the plaintiff in establishing that it is fair and just that leave be granted to commence the proceedings, notwithstanding the expiration of the limitation period. 23I accept that it is possible that the proceedings could have been commenced and placed in the "not ready list" in this Court, but there would nevertheless be a need for leave for a plaintiff to amend any pre-filing statement that did not accurately reflect the worsening condition of the plaintiff over time. In my view, the approach taken on behalf of the plaintiff in this case, adopting the procedure of postponing commencement and subsequently seeking leave under section 151D(2) is not an unreasonable course. It removes the need to seek leave to amend a pre-filing statement, and it is an approach which finds some support in the decision of Saad, a decision which appears to excuse a failure to commence in a timely fashion where there are worsening injuries. 24In the circumstances of this case I propose to adopt the approach indicated by Hodgson JA in the ASB-Tech v Doeland decision at [34]. I find that there is an explanation for the delay, although not entirely satisfactory, but the absence of any prejudice lessens the need to provide a full and complete explanation. As indicated earlier, the circumstance that there was some financial and medical benefit to the plaintiff in postponing the commencement of proceedings whilst operations remained pending or likely, where Workers Compensation assistance was needed to pay for those operations, is a factor in favour of the grant of leave. 25In my view, the plaintiff has discharged the onus on her to establish that I should exercise my discretion to grant leave under section 151D(2) and accordingly I order that leave be granted to the plaintiff to commence proceedings for damages in respect to the injury under section 151D within a period concluding after the expiration of 14 days from today's date. 26I have not been addressed by the parties on the matter of costs. The ordinary rule which appears from the decision of Holt v Wynter (2000) 49 NSWLR 128 and also in Campbell v State of NSW [2002] NSWSC 230 is to the effect that the successful applicant who has allowed a limitation period to expire should pay the costs of the application unless the opposition of the defendant to the application was unreasonable. In the circumstances of this case the matter was not at all clear, given the absence of a full explanation by the plaintiff, so that I do not regard the opposition of the defendant to the application for leave as unreasonable. In that event I would order the plaintiff to pay the defendant's costs of the application. If either party wishes to make submissions about the costs order they can do so in writing to my associate within 14 days of today's date. In the event that I receive any submissions I will give further consideration to the question of costs. 27Accordingly, the orders of the Court are: 1. I grant the leave sought under section 151D of the Act; and 2. I order the plaintiff to pay the defendant's costs of the application for leave. ********** 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. Decision last updated: 25 January 2013