Supreme Court New South Wales Medium Neutral Citation: Montford-Sinclair v Toyota Material Handling [2014] NSWSC 1512 Hearing dates: 3/10/2014 Decision date: 03 October 2014 Jurisdiction: Common Law Before: Campbell J Decision: (1)The plaintiff be granted leave nunc pro tunc to commence proceedings against the third defendant by filing the second further amended statement of claim on 10 December 2012; such leave is granted under section 151D Workers Compensation Act 1987. (2)List the proceedings for directions before the common law case management registrar at 9am on 31 October 2014. Catchwords: PROCEDURE - civil - work injury damages - leave sought nunc pro tunc to commence proceedings - whether adequate explanation for delay - whether forensic prejudice Legislation Cited: Workers' Compensation Act 1987 (NSW), s 151D, 151H Cases Cited: Sydney City Council v Zegarac (1998) 43 NSWLR 195 Category: Interlocutory applications Parties: Wendy Montford-Sinclair (Plaintiff) Toyota Material Handling Pty Ltd (First Defendant) David Porters (Second Defendant) Tenix Toll Defence Logistics Pty Limited (Third Defendant) Representation: Counsel: J Reimer (Plaintiff) L Jones (Solicitor for First and Second defendants) E Hannon (Solicitor for Third Defendant) Solicitors: File Number(s): 2010/00326293 EX TEMPORE Judgment (Revised) 1By notice of motion filed on 18 September 2014 the plaintiff seeks an order under section 151D Workers' Compensation Act 1987 (NSW) for leave to commence a claim for work injury damages against her former employer Tenix Toll Defence Logistics Pty Limited, now known as BAE Systems Australia Logistics. 2Leave is sought nunc pro tunc, the amended statement of claim commencing the proceedings against the employer having been filed on 10 December 2012. It is the settled law that leave under section 151D can be granted nunc pro tunc. 3The issues in these matters normally centre around two important questions. The first is whether the plaintiff has an adequate explanation for the delay and the second is whether permitting proceedings to be commenced late will cause the employer forensic prejudice of a type that cannot be overcome. 4Ms Montford-Sinclair's accident occurred on 2 October 2007. She was on that day driving a new forklift truck which had been supplied to her employer by the first defendant. 5The first defendant's employee, the second defendant, had provided some kind of training known as forklift familiarisation to Ms Montford-Sinclair but the new forklifts had better performance than the old. It is said, on her behalf, that the training provided was inadequate. 6On 2 October 2007 she was using the new forklift in the course of her work and she lost control of it because she was unfamiliar with its better performance and she was crushed between the body work of the forklift, and shelving on the premises. She suffered serious personal injury. 7The case against the first defendant is either or both that the forklift familiarisation training it devised was inadequate or that the training provided by the second defendant was not what was required and the first defendant is vicariously liable for his negligence. 8The first and second defendants consent so far as it affects them at all to the orders sought and the third defendant neither consent nor objects. The third defendant, of course, is insured by the Workers Compensation Nominal Insurer, as it is called these days, and has been paying compensation or Ms Montford-Sinclair since October 2007. 9The potential liability of the employer in these circumstances really, as I understand the case to be made at the trial relates to a breach of its personal or non-delegable duty of care because of the negligence of the first or second defendant. As I have said, the third defendant neither consents or objects and has certainly not sought to put before the Court any evidence from which I can infer it would suffer relevant prejudice of a forensic type. Of course, the persuasive onus at all times rests upon the plaintiff but it has been observed in Sydney City Council v Zegarac (1998) 43 NSWLR 195 that the proposed defendant has an evidential burden to point to any specific prejudice it might suffer because of the late commencement of proceedings and in the absence of its discharge of that evidential burden, the task of a plaintiff in persuading the Court that there is no general forensic prejudice is so much the easier. 10I am satisfied on the evidence before me that there is no prejudice of the relevant type to the third defendant, specifically as it has been paying compensation to Ms Montford-Sinclair since October 2007, it is well aware of the nature of her case which was commenced as long as 2010. Doubtless it either investigated the circumstances at the time they occurred or, at least, had the opportunity to do so. It would have been in its interest as the workers compensation insurer of a potentially large claim to have it investigated if it thought anything "not right" in the nature of the claims made. 11Moreover, it would be unreal of me to overlook that there can be advantages for the employer in the bringing of common law actions. Either it stands to recover the compensation paid to or on behalf of Ms Montford-Sinclair on the one hand and on the other, it can bring an end to any ongoing liability by payment of damages. 12Ms Montford-Sinclair has not displayed any lack of forensic diligence. From the affidavit of Julia Nikolovski I am aware that she promptly instructed solicitors in November 2007 (being her present solicitors) who undertook investigations of her claim and gave her advice about the possibility of common law proceedings against the first and second defendants and in relation to her rights for statutory benefits against the third. 13As is notorious, a claim for work injury damages is dependent upon satisfaction of the threshold imposed by section 151H of the Workers Compensation Act 1987. That is to say that an injured worker must show that she or he suffers from a degree of permanent impairment of "at least 15 percent" because of the work injury. Under the procedures imposed by Chapter 7 of the Workplace Injury Management Workers' Compensations Act 1998 often that question takes a considerable period of time to resolve given that if there is a dispute, it must be resolved by an approved medical specialist when the impairment is "permanent". 14From the medical evidence attached to Ms Nikolovski's affidavit it seems that Ms Montford-Sinclair's injuries were somewhat complex and took a considerable time to reach a stage where there could be said to be permanent for assessment purposes. From Ms Nikolovski's affidavit I find that agreement was not reached about the degree of permanent impairment until February 2012. Following that agreement, it was necessary for Ms Montford-Sinclair to comply with the pre litigation steps set down in chapter 7 of the 1998 Act including compulsory mediation which did not occur until 28 November 2012. I am satisfied that these proceedings were commenced promptly after that date by filing a statement of claim on 10 December 2012. 15I should also observe that part of the explanation for the delay is treatment an intercurrent medical condition which would have been distressing for the plaintiff. This adds to the explanation for why it took a number of years before a degree of permanent impairment could be assessed. 16This is not a case where the plaintiff made any type of the decision, or "informal election", to remain on statutory benefits rather than pursue her damages rights as is amply demonstrated by the commencement of proceedings against the other defendants in 2010. 17For these reasons, I am satisfied that it is fair and reasonable to make the order sought by the plaintiff. My orders are: (1)The plaintiff be granted leave nunc pro tunc to commence proceedings against the third defendant by filing the second further amended statement of claim on 10 December 2012; such leave is granted under section 151D Workers Compensation Act 1987. (2)List the proceedings for directions before the common law case management registrar at 9am on 31 October 2014. ********** 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: 05 November 2014