Singh v TAJ (Syd) Pty Ltd [2015] NSWSC 368

Supreme Court New South Wales

Medium Neutral Citation: Singh v TAJ (Syd) Pty Ltd [2015] NSWSC 368 Hearing dates: 1 April 2015 Date of orders: 01 April 2015 Decision date: 01 April 2015 Jurisdiction: Common Law Before: Campbell J Decision: Under s 151A(5) Workers Compensation Act 1987 (NSW), I grant leave for the plaintiff to revoke the election made by him to accept permanent loss compensation on 12 April 2002 to enable him to commence common law proceedings. Under s 151D of the said Act, I extend the time for the commencement of common law proceedings until 11 July 2014. The costs of the parties are costs in the cause. List the matter for directions before the Common Law Case Management Registrar at 9 am on 14 April 2015. Catchwords: PROCEDURE – civil – whether plaintiff can revoke election made to accept permanent loss compensation – whether the plaintiff is entitled to commence common law proceedings outside the limitation period Legislation Cited: Workers Compensation Act 1987 (NSW); Workplace Injury Management and Workers Compensation Act 1998 (NSW) Category: Consequential orders (other than Costs) Parties: Gurminder Singh TAJ (Syd) Pty Limited Representation: Counsel: Ms P.M. Clingan (Plaintiff) Ms Hickey (Defendant)

Solicitors: Buttar Caldwell & Co (Plaintiff) Moray & Agnew (Defendant) File Number(s): 2014/00205351

EX TeMPORE Judgment (REVISED) 1. In this matter I have a motion filed on 2 February 2015 seeking relief under provisions of the Workers Compensation Act 1987 (NSW). The first prayer seeks an order under s 151A(5) of the Act granting leave to revoke an election that the plaintiff made, as long ago as 12 April 2002, to accept permanent loss compensation rather than claiming common law damages. 2. I am informed by Ms Clingan and Ms Hickey, who appear for the plaintiff and defendant respectively, that the election provisions have been repealed quite some time ago but the repeal was not retrospective in effect and Mr Singh, the plaintiff, remains bound by his election unless he obtains leave of this Court to withdraw it. Section 151A(5) is in the following terms: (a) if 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 of 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. 1. The history of the matter is fully set out, to my satisfaction anyway, in 2. Mr Singh's affidavit and is helpfully summarised in a chronology of events handed up by Ms Clingan of counsel. 3. The injury occurred on 19 April 2000. According to the amended statement of claim, the plaintiff was attempting to pull a fully loaded trolley in the course of his employment when the trolley tipped over and fell on him causing, in the language of the pleader, "serious injury, loss and damage." 4. The injury is substantially a back injury and the plaintiff swears in his affidavit that his treating surgeon, Dr Khan, assured him in June 2000 that he would recover and be fit to return to work. Dr Khan, at that time, was of the view that the injuries suffered by the plaintiff were essentially soft tissue in nature and considered, at least so far as an alleged neck injury is concerned, that it was an aggravation of a pre-existing condition. He expected that the injuries would settle down. 5. The situation is compounded somewhat by the fact that there was an intervening motor vehicle accident in November 2003, and compensation payments ceased in 2004 which launched a fleet of litigation which ended up in the New South Wales Court of Appeal in July 2007. 6. As I have said, the lump sum compensation was paid in 2002. In 2009 there was a further payment of lump sum compensation representing a deterioration in the plaintiff's condition, but it was not until October 2011 that there was a significant deterioration leading to spinal surgery on 25 November 2011 to the plaintiff's low back. That significant deterioration is the factor, I think, which brought the plaintiff's condition to a level where he had permanent impairment of at least fifteen per cent under s 151H of the Act permitting him to bring common law proceedings. Of course, by then he was well and truly out of time. 7. The surgery he underwent in India in 2011 was to treat a lumbar disc prolapse at two levels and, on the evidence of the operating surgeon, a Dr Naveen Chaudhri, the need for that surgery resulted from the back injury in April 2000. Dr Chaudhri says that Mr Singh's condition had deteriorated to the extent that surgery was necessary and, had it not been undertaken, he expected that the deterioration would have led to, I infer, problems with the cauda equina leading to bladder problems which would have been a very significant development. 8. Given the evidence that was available at the time, I am satisfied that when Mr Singh made his election in 2002, there was no reasonable cause to believe that this dramatic deterioration in 2011 was likely to occur, especially having regard to the robust and optimistic views expressed by Dr Khan. 9. I am satisfied that Mr Singh has made an election and after it was made the injury in April 2000 caused a further material deterioration in his medical condition that, had it existed at the time of the election, would have entitled Mr Singh to additional permanent loss compensation. When he accepted the permanent loss compensation in 2002, there was no reasonable cause to believe that the further deterioration would occur. 10. Accordingly, the statutory conditions being satisfied, and there being no active opposition from the Workers Compensation insurer, I grant leave for the revocation of the election. 11. I will formulate orders in a moment because, from what I have said, it is obviously clear to anyone who knows anything about this area of the law that Mr Singh is many, many, many years out of time to commence common law proceedings, and there would be no utility in granting leave to revoke the election unless Mr Singh was entitled to commence common law proceedings. 12. I am now satisfied that he has, as I have said, crossed the s 151H threshold. The time for bringing common law proceedings is fixed by the provisions of s 151D of the Act. It requires common law proceedings to be commenced within a period of three years after the date on which the injury was received, in this case, by 19 April 2003. The Court has an unlimited power to extend that period of time by a grant of leave. The principles are well-known. There has to be a good and satisfactory explanation for the delay in bringing the case. The plaintiff has to demonstrate an absence of prejudice, and an order can be made nunc pro tunc. The last matter is of significance given that proceedings were commenced in this Court on 11 July 2014. 13. The facts, as I have found them to be in relation to the 151A application, provide the reasonable explanation for the delay on Mr Singh's part in bringing these proceedings. He did not have any entitlement to damages until after the surgery in 2011. It was not until 2012 that the Approved Medical Specialist made the assessment entitling him to bring common law proceedings. That occurred on 26 November 2012. 14. There was obviously some delay thereafter but it is well-known that, before commencing Court proceedings, a plaintiff has to comply with the pre-litigation requirements of Ch 7 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and, doubtless, I can infer that has been done. He also had to claim and receive his additional permanent loss compensation. 15. Ms Hickey, who appears for the defendant, very fairly indicates that as the insurer has been handling this file for fifteen years, it really knows all about Mr Singh's claim and there is no prejudice that she can point to of any kind that it would face if I granted leave to bring these proceedings. For those reasons, I think it appropriate to make an order under s151D extending the time within which common law proceedings may be brought until 11 July 2014. 16. My orders therefore are: 17. Under s 151A(5) Workers Compensation Act 1987, I grant leave for the plaintiff to revoke the election made by him to accept permanent loss compensation on 12 April 2002 to enable him to commence common law proceedings. 1. Under s 151D of the said Act, I extend the time for the commencement of common law proceedings until 11 July 2014. 2. The costs of the parties are costs in the cause. 3. List the matter for directions before the Common Law Case Management Registrar at 9 am on 14 April 2015.