District Court New South Wales Medium Neutral Citation: McLawrence v Ashton Coal Operations Pty Limited [2016] NSWDC 355 Hearing dates: 8 December 2016 Date of orders: 15 December 2016 Decision date: 15 December 2016 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Pursuant to s 151D(2) Workers Compensation Act 1987 (NSW) grant leave to the plaintiff to commence proceedings for damages in respect to the injuries he suffered on 24 July 2011, such proceedings to be by way of statement of claim filed in these proceedings on or before 12 January 2017. (2) Costs to be costs in the cause. (3) Proceedings listed for directions before the Registrar on Thursday 19 January 2017. Catchwords: WORKERS COMPENSATION – s 151D Workers Compensation Act 1987 (NSW) – leave to commence proceedings more than three years after injury – adequacy of explanation for delay – extension of time granted Legislation Cited: Limitation Act 1999 (NSW), s 60E Workers Compensation Act 1987 (NSW), ss 80, 151A, 151D, 151DA, 151G, 151H, 151I, 151K, 151KA and Schedule 6, Part 18 Workers Compensation Legislation Further Amendment Act 2001 (NSW) Cases Cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Coal & Allied Operations Pty Ltd t/as Hunter Valley Operations (Howick Mine) v Stringer [2003] NSWCA 271 Hornby v The Nominal Defendant [2007] NSWCA 222 Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 Nominal Defendant v Harris (2011) 57 MVR 492 Smith v Grant [2006] NSWCA 244 Strasburger Enterprises Pty Ltd (t/as Quix Food Stores) v Serna [2008] NSWCA 354 Yu v Spiers [2001] NSWCA 373 Category: Procedural and other rulings Parties: Plaintiff: Neil Andrew McLawrence Defendant: Ashton Coal Operations Pty Limited Representation: Counsel: Plaintiff: Mr P M O'Rourke Defendant: Mr T Rowles Solicitors: Plaintiff: Carroll & O'Dea Defendant: Hicksons File Number(s): 2016/233723 Publication restriction: None Judgment The application before the court 1. The plaintiff, by summons filed on 28 July 2016, seeks leave to extend time under s 151D Workers Compensation Act 1987 (NSW) ("the Act") to commence proceedings for damages for injuries he suffered on 24 July 2011 while employed as an underground mine technician at the Ashton Colliery, a coal mine in New South Wales. 2. There are specific provisions for "coalminers", who are persons employed as a "worker employed in or about a mine" (Schedule 6, Part 18, cl 1 and 3 of the Act) which are discussed in more detail below. 3. The plaintiff relies upon his affidavit of 9 September 2016, upon which he was cross-examined. Two affidavits by the plaintiff's solicitor, Mr Cockle, sworn on 28 July and 5 December 2016, are also relied upon. 4. No evidence on any issue (including prejudice) was tendered on behalf of the defendant. The relevant legislation 1. It is not in dispute that the plaintiff was a "coalminer" (a "worker employed in or about a mine": Sch 6, Part 18, cl 1 and 3 of the Act). This means that the plaintiff's right to bring a common law claim in negligence against the defendant is governed by Part 5 of the Act ("Common Law Remedies") as read prior to the enactment of the Workers Compensation Legislation Further Amendment Act 2001 (NSW): Sch 6, Part 18, cl 1 and 3. The relevant provisions (as preserved) are ss 149 and 151T. 2. Section 151D provides: "151D Time limit for commencement of court proceedings against employer for damages (1) (Repealed) (2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken. (3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies. (4) This section does not apply to the commencement of court proceedings in respect of a claim within the meaning of Part 5 of the Motor Accidents Act 1988 or Chapter 5 of the Motor Accidents Compensation Act 1999." 1. Apart from s 151D, other provisions in Part 5 of the Act are relevant to a decision by a plaintiff who is a coalminer to commence common law proceedings, in terms of both whether to commence proceedings and when such a decision can be made. The most relevant here are what are sometimes referred to as the "election" provisions. 2. These are as follows. Part 5 includes s 151A, which provides that a person to whom compensation is payable under the Act is not entitled to both permanent loss compensation (paid to a coalminer pursuant to ss 66 and 66 of the Act as preserved) and damages in respect of the injury but is required to make an election between the two remedies. 3. As is noted in the plaintiff's helpful outline of submissions, the election is made either: 1. By commencing proceedings in a Court to recover those damages or by accepting payment of those damages; or 2. By commencing proceedings in the District Court of New South Wales to recover permanent loss compensation or by accepting payment of that permanent loss compensation: s 151A(3) and Sch 6, Part 18, cl 3(2) of the Act. 1. Within Part 5, provisions bearing upon the pursuit by the plaintiffs of damages include: 1. Non-economic loss (s 151G); 2. Loss of past and future earnings (s 151I); 3. Home care services (s 151K); and 4. Respite care (s 151KA). 1. Section 151G ("Damages for Non-Economic Loss") provides for an assessment of damages by comparison to a "most extreme case". As at the date of the incident pleaded in the present case, the maximum amount that could be awarded for non-economic loss was $362,500. The relevant amount pursuant to s 151G(4), being the amount below which no damages for non-economic loss are to be awarded, was $64,300. In terms of s 151G(5) the amount of non-economic loss above which there is to be no "modification" of the amount awarded is $84,450. 2. Section 151H provides that there should be no damages for economic loss awarded unless the relevant injury is "serious". This "serious injury" is defined as follows: "(2A) A serious injury is, if received on or after the commencement of Schedule 2(2) to the Workers Compensation (Benefits) Amendment Act 1991: (a) an injury for which the compensation otherwise payable under section 66 for the loss or losses resulting from that injury is, in the opinion of the court, not less than 25 per cent of the maximum amount from time to time referred to in section 66(1), or (b) an injury for which damages for non-economic loss of not less than $48,000 are to be awarded in accordance with the Division (whether or not compensation is payable under section 66)." 1. In the present case, the amount referred to in s 151H(2A)(b) is the sum of $84,450 identified in paragraph 11 above (s 80 of the Act). 2. Section 151I "caps" the maximum amount to be awarded for damages for past economic loss due to loss of earnings and for future economic loss due to the deprivation or impairment of earning capacity to the maximum amount of weekly payments of compensation identified from time to time under s 35 of the Act, that maximum amount being read as a reference to net weekly earnings. The current maximum under s 35 is $2,058.10. 3. I also note that, given the legislative regime applicable to coalminers, s 151DA, which provides for time not running for the purposes of s 151D in particular circumstances, does not apply. The plaintiff's injury 1. The plaintiff, who is currently 45 years of age, initially worked for Coles Myer, achieving the position of state wide refit manager, before commencing to work in the mining industry in 2002 in Queensland. He returned to live in Cessnock after his mother became ill and commenced employment with the defendant in 2008, working as an underground mine technician on permanent night weekend shift. 2. The nature and extent of the plaintiff's injuries form part of the explanation for the lateness of the claim, in that the plaintiff's injuries, which were at first conservatively treated, gradually worsened despite surgery. 3. The circumstances of the plaintiff's injury were as follows. On 24 July 2011 the plaintiff was working alongside a contractor where the system of work required rollers to be rolled to the edge of the pod and then allowed to drop and, before they hit the ground, to be caught by the plaintiff at one end and the contractor (a Mr Branigan) at the other. Each of these weighed 130 kilos and each had welded handles on each side. In the course of unloading, Mr Branigan failed to catch his side of one of the rollers. The plaintiff had caught his side, but in doing so the heavy roller struck the floor and the plaintiff's left elbow was hyper-extended. 4. The plaintiff had marked pain in his left elbow joint but worked on with it to finish the shift and then saw his general practitioner the following day. He was prescribed Brufen and put on selected working duties until 5 August 2011. He underwent an ultrasound on 9 August 2011 and lateral epicondylitis was diagnosed. He was then off work for two days in September and remained on light duties until October 2011, when he returned to normal duties. Thereafter he continued to have physiotherapy and injections. However, his pain worsened and on 25 June 2013 he underwent lateral epicondylar release surgery, which his doctors advised him would resolve the problem. 5. A month prior to the surgery, he consulted solicitors about his injuries. On 6 June 2013, those solicitors wrote to him outlining the plaintiff's potential rights under the Act and at common law. These rights were described as follows: "Common law rights In circumstances where your injury: (i) is caused due to the negligence and fault of your employer or another party; and (ii) such injury results in you losing more than 25% of your whole body [sic] under s 66 or entitles you to non-economic loss damages of 25% of the maximum amount under common law damages; You have the potential to bring a claim for common law damages in respect of these injuries. Normally you would only bring a common law claim if you were not able to continue working in the coal mining industry. Any common law claim must be commenced within 3 (three) years of the date of injury. That is by 24.7.2014. … Common law damages are payable in one lump sum and you are no longer entitled to receive any workers compensation benefits (including weekly payments, payment of treatment accounts or lump sums under ss 66/67) in respect of this injury. If you bring a claim for common law damages and such claim is unsuccessful you may still have rights to weekly payments and payment for your treatment but lose the right to ss 66/67 benefits." (Affidavit of Mr Cockle, Annexure A) 1. This was followed by a section headed "What to do?" which invited the plaintiff to provide more information. 2. After the plaintiff's surgery on 25 June 2013, he started a slow return to work on a selected duties program from 21 September 2013. He initially thought his arm was improving but that improvement did not continue. He had further ultrasounds of his elbow on 19 August 2014. This was shortly after the expiry of the three-year limitation period. He was still working for the defendant and his condition had not at that stage settled. 3. The plaintiff continued to have trouble with his left elbow during 2015 and had a further ultrasound on 19 June 2015, which noted some features suggestive of common extensor tendinopathy, a condition not previously diagnosed. He was made redundant on 31 July 2015, effective on 17 August of that year. That was already more than a year after the limitation period had expired. 4. The plaintiff says that he accepted the redundancy because by this stage, it had become apparent that his ongoing incapacity and difficulty in performing his work duties made this the appropriate course to take. He was left-handed, and this meant that the injury to his left elbow was significantly limiting his work capacity. 5. By late October 2015, when he saw Dr Hopcroft, his condition had worsened. Dr Hopcroft reported that the plaintiff was "severely compromised as a result of his work related injury" and recommended a second opinion from a senior hand specialist to determine the nature and extent of his problems. 6. The plaintiff saw the specialist recommended by Dr Hopcroft, Dr Meads, on 4 December 2015. Dr Meads noted the long history of worsening of pain and increased lack of ability to use the hand. He diagnosed chronic lateral epicondylitis and radial tunnel syndrome and recommended further investigations. Further treatment, in the form of an injection to work out whether the radial tunnel was involved, was recommended. 7. On 15 July 2016, Dr Meads reported that the steroid injection had not given any long term benefit and that radial tunnel release by way of surgery would be necessary. 8. In cross-examination, it was put to the plaintiff that he was clearly aware that he had "significant medical problems" at the time that he saw solicitors in May 2013. The plaintiff replied: "I hoped I'd be getting better. Dr Harrington thought it [the operation] would go okay, but it hasn't." 1. The plaintiff thought that the advice about common law applied if he could not work in the mine. As the above extract from the solicitors' letter of 6 June 2013 shows, that was in fact the advice that he received. 2. Counsel for the defendant submitted that this case was comparable to the New South Wales Court of Appeal in Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207, where the plaintiff took a decision not to proceed deliberately on a fully informed basis and upon advice, and allowed a three year limitation period to expire. This was not a case where the solicitor had failed to give advice (as to which see Smith v Grant [2006] NSWCA 244), but where the advice was given and deliberately not acted upon. 3. The defendant relied upon Coal & Allied Operations Pty Ltd t/as Hunter Valley Operations (Howick Mine) v Stringer [2003] NSWCA 271, which again involved the Court of Appeal considering a different limitations provision pursuant to s 60E Limitation Act 1999 (NSW). After referring to his judgment in Itek Graphix Pty Ltd v Elliott, Ipp JA said: "[35] I accept that acting on legal advice in letting a limitation period expire may be a significant factor in granting leave to commence proceedings out of time. But that would require, at least, evidence that the advice was misguided, or proof that new evidence has been discovered, or (subject to all relevant facts being disclosed) perhaps that the applicant for leave acted with due diligence and is not personally to blame for the delay (the significance of such a factor arising, it may be, by reason of s 60E(1)(g)). But the opponent did not approach the matter on this basis and the evidentiary foundation for it was not established. [36] Generally speaking (in the light of the rationales of limitation statutes as explained by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 554), where a party has made a deliberate and informed decision on legal advice to allow a limitation period to expire, broad considerations of justice do not require time to be extended simply because the lawyer changes his mind or a new lawyer gives different advice — even when no actual prejudice has been proved. In my view, ordinarily, something more must be shown to warrant a grant of leave." Whether leave should be given to extend time for bringing proceedings 1. I first set out the relevant principles to apply. The relevant principles of law 1. The plaintiff bears the onus of proving that it is fair and just for a limitation period to be extended and the defendant bears the evidentiary onus of proving actual prejudice beyond that presumed to occur by reason of effluxion of time alone. Consideration of the justice of the case will invariably involve an analysis of the reasons for the delay and an examination of the diligence (or otherwise) of the plaintiff. 2. It is not disputed that the plaintiff has a viable cause of action (Yu v Spiers [2001] NSWCA 373 at [34]–[55]) or has not suffered a significant injury. The issue is whether the plaintiff deliberately allowed the time period to expire. 3. In Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447, McColl JA set out a comprehensive analysis of the test to apply and the relevant issues for determination at [44]-[49]. Her Honour's analysis of that task points to both the breadth of the discretion (at [45]) and the relevance of the facts of the case (at [46]): "[44] Section 151D(2) does not spell out specific criteria to be taken into account by the court when exercising the discretion to extend the time to commence court proceedings sought to be commenced more than 3 years after the injury was received: cf s 58(2), 60C(2) Limitation Act 1969 (NSW); s 109 Motor Accidents Compensation Act 1999 (NSW). [45] Rather, as Ipp AJA (Spigelman CJ and Sheller JA agreeing) explained in Itek Graphix (at [87]), in the passage to which the primary judge referred, s 151D confers a broad discretion to grant leave to sue after expiry of the limitation period, in which context "the general question that has to be asked is what is fair and just ... [or] what does the justice of the case require?"; see also Sheller JA (at [2]). [46] The "justice of the case must be evaluated by reference to the rationales of the limitation period that has barred the action" (Itek Graphix (at [87]), including those to which McHugh J referred in Brisbane South (at 552 - 553)), they being that as time goes by relevant evidence is likely to be lost; that it is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed; the desirability for people in the community to be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them and the fact that the public interest requires that disputes be settled as quickly as possible. [47] McHugh J's rationales are those which underpin the notion of presumptive prejudice, a "prejudice [which] may exist without the parties or anybody else realising that it exists ... where important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed [where] ... time ... diminish[es] the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose": Brisbane South (at 551). [48] The effect of Brisbane South "is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant": Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 (at [119]) per Sheller JA (Meagher and Handley JJA and Brownie AJA agreeing). "Significant prejudice means such prejudice as would make the chances of a fair trial unlikely": The Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 (at [96]). [49] In Itek Graphix following the passage to which the primary judge referred, Ipp AJA continued: "88. I have pointed out that the justice of the case is to be determined by its own individual circumstances. Often, a failure satisfactorily to explain the delay will not be decisive. Ordinarily, the issue of prejudice will be of paramount importance: Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 at [34] - [36]; Malone v New South Wales National Parks and Wildlife Service [2001] NSWCA 345 at [9]. Nevertheless, the justice of the case may be such that the failure to explain the delay and to prosecute the case with the requisite diligence will result in an extension of time being refused. 89. The rule that an applicant, who applies for leave to bring proceedings after a limitation period has expired, must provide a reasonable explanation for the delay (and show that there has not been an absence of diligence on his or her part) forms part of limitation legislation throughout the country and, independently, has long been recognised by the courts ... 90. The reason for this requirement is not hard to understand. A limitation provision is an expression of intent by Parliament that persons who wish to sue must do so within the stipulated time unless circumstances exist entitling them to obtain leave. A limitation provision is the general rule and an extension is the exception. In obtaining leave, a party is in effect obtaining an indulgence. To allow parties leave, when they have been careless of their rights and careless of the need to proceed with their disputes within the limitation period, would, ordinarily, be contrary to the justice of the case and would subvert the intent of Parliament. Just as the rules of court must prima facie be obeyed (Ratnam v Cumarasamy [1965] 1 WLR 8 at 12), so must the laws of Parliament." 1. McColl JA concluded, at [50]-[52]: "[50] It should be borne in mind, as Whealy JA (Hodgson and McColl JJA agreeing) explained in Nominal Defendant v Harris [2011] NSWCA 70; (2011) 57 MVR 492 (at [45]), that Ipp JA's comments "were intended to provide useful and cautionary guidance as to the way a court exercising a broad statutory discretion to extend a limitation period will ordinarily respond [but] do not ... supplant the language of the statute [nor] ... override the broad discretionary exercise entrusted to a court to take into account all the relevant circumstances in determining what is fair and just." [51] Where an extension of time is sought to extend time to bring proceedings pursuant to s 151D(2), "it is for the person seeking to be freed from the constraint imposed by the limitation statute to show that the relevant delay is not likely to make the proceedings unfair or to cause real prejudice to the proposed defendant, that is, the person having the benefit of the time bar": Gallagher Bassett Services NSW Pty Limited v Murdock [2013] NSWCA 386; (2013) 86 NSWLR 13 (at [26]) per Barrett JA (Gleeson and Leeming JJA agreeing); see also Brisbane South (at 550) per Toohey and Gummow JJ; Sea Coatings (Australia) Pty Limited v Pascoe [2008] NSWCA 54 (at [27]) per Handley AJA (Hodgson and Tobias JJA agreeing) ("Sea Coatings"). [52] Factors contributing to the justice of this case included the respondent's concession that the appellant had a prima facie case on liability. It would be otherwise if she had had a weak case, as "the apparent weakness of the plaintiff's case is a factor which militates against an extension of time": Commonwealth of Australia v Shaw [2006] NSWCA 209; 66 NSWLR 325 (at [40], [83]) per Basten JA (Handley and Ipp JJA agreeing), referred to with approval in Sea Coatings (at [51])." 1. In Strasburger Enterprises Pty Ltd (t/as Quix Food Stores) v Serna [2008] NSWCA 354 at [52], Basten JA similarly emphasised the importance of the subject matter as well as the scope and purpose of the legislation. 2. In Itek Graphix Pty Ltd v Elliott at [87], Ipp AJA explained the difference of the test under s 151D(2) to other limitation periods as follows: "[87] In my opinion, in limitation legislation such as s 151D(2) of the Workers Compensation Act, where a broad discretion is conferred to grant leave to sue after expiry of the limitation period, the general question that has to be asked is what is fair and just (per Gleeson CJ in Salido). Or what does the justice of the case require (per McHugh J in Brisbane South Regional Health Authority). In answering such a question, the justice of the case must be evaluated by reference to the rationales of the limitation period that has barred the action, including the four rationales to which McHugh J referred." 1. The principles set out in this decision are regularly invoked in proceedings such as these, but need to be viewed in context, for the reasons explained by Whealey JA in Nominal Defendant v Harris (2011) 57 MVR 492 at [45]-[47]: "[45] First, it needs to be borne in mind that these comments by Ipp JA (and indeed, by Sheller JA) were not "principles" in the true sense of the word. They were intended to provide useful and cautionary guidance as to the way a court exercising a broad statutory discretion to extend a limitation period will ordinarily respond. They do not (and were not intended to) supplant the language of the statute. They were not intended to override the broad discretionary exercise entrusted to a court to take into account all the relevant circumstances in determining what is fair and just. They were certainly not intended to operate as some kind of peremptory trigger or command requiring, without further evaluation, a predetermined outcome, namely a refusal of the application. They might indeed point firmly in that direction but they did not, without proper consideration of all the circumstances, dictate automatic and immediate refusal. [46] Indeed, Ipp AJA recognised this when he said at [87]:— "[87] In my opinion, in limitation legislation such as s 151D(2) of the Workers Compensation Act, where a broad discretion to grant leave to sue after expiry of the limitation period, the general question that has to be asked is what is fair and just (per Gleeson CJ in Salido). Or, what does the justice of the case require (per McHugh J in Brisbane South Regional Health Authority). In answering such a question the justice of the case must be evaluated by reference to the rationale of the limitation period that has barred the action, including the four rationales to which McHugh J referred." [This reference to the "four rationales" is a reference to McHugh J at 552–3; ALR 8 - 9 in Brisbane South Regional Health Authority ]. [47] Sheller JA echoed this thought at [2] when, speaking of the legislation there in question, he said:— "… the legislature does no more than enable the court to grant leave to a person to commence court proceedings after the expiry of the limitation period. In broad terms it can be said that a discretion expressed so widely should be exercised in a way which will best serve the justice of the case."" Application of these principles to the facts in this case 1. The summons was filed on 28 July 2016, five years after the incident, in circumstances where the limitation period was known to the plaintiff on 6 June 2013 and allowed to expire on 24 July 2014. However, as noted above, the Part 5 provisions require the plaintiff to establish that he had suffered a "serious injury" (s 151H(2A)), both for the awarding of damages for non-economic loss and for the obtaining of past and future economic loss. 2. Mr Rowles points to the plaintiff's asserted acknowledgement in cross-examination that he knew he had suffered a serious injury, arguing that "the plaintiff knows his own body" and must have realised that his injury was sufficient to warrant the commencement of common law proceedings. Instead, the plaintiff allowed the limitation period to elapse. 3. Is this in fact the case? Careful examination of the medical evidence and the plaintiff's employment situation shows to the contrary. 4. First, the plaintiff was, at the time that he received this advice on 6 June 2013, still working for the defendant, and would go on working for the defendant until well after the limitation period had expired, in circumstances where he had been told that he would meet the "serious injury" threshold if he was "not able to continue working in the coal mining industry" (see the text of Exhibit A to Mr Cockle's affidavit as set out above). 5. Second, not only was the plaintiff earning his usual wage in his usual job, but he was about to undergo surgery which Dr Harrington had assured him was likely to resolve his problems, as the plaintiff observed in cross-examination. 6. At this point in time (June 2013), given the significant consequences of the "election" the plaintiff had to make, the plaintiff was not in a position to make any decision, let alone an informed decision, about his common law rights. This is not only for the reasons set out above, but because the plaintiff's own solicitor did not provide him advice about whether or not he should commence proceedings. To the contrary, he headed the next section of his letter "What to do?" In Itek Graphix Pty Ltd v Elliott the plaintiff was under no such uncertainties or constraints. What is more, as counsel for the plaintiff pointed out in his submissions, that remained the plaintiff's position until well after the limitation period expired. 7. Mere knowledge of the existence of, and the date for, expiry of a limitation period is not enough. The plaintiff has to be in a position to make an informed decision. That was not the case here. 8. I am satisfied that the significance of the plaintiff's injuries and disabilities only became apparent after the limitation period expired. I am satisfied that it was not until after the plaintiff was confronted by the ongoing and substantial disabilities which led him to accept the redundancy on 17 August 2015, and when he realised that his future medical treatment (which included more surgery) that he was in the position to make the election. 9. It is not in dispute that thereafter the plaintiff's lawyers were diligent in investigating and prosecuting the claim after this date. 10. In the absence of prejudice this factual situation would be sufficient to warrant the granting of leave. Prejudice 1. The remaining question is whether the delay is likely to render the trial of these proceedings unfair. 2. Presumptive prejudice can involve the unknown existence of lost evidence, as McHugh J explained in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551, and this requires an examination of whether, in all the circumstances, a fair trial is possible, even where no actual prejudice can be pointed to. 3. As to presumptive prejudice that arises by reason of delay, I note the helpful observations in Hornby v The Nominal Defendant [2007] NSWCA 222 at [58] by Tobias JA: "[58] The principles relevant to the power of a Court to make an order extending time if it thinks such an order is just and reasonable in all the circumstances were articulated in Smith at [122]–[129] by Santow JA, with the agreement Handley and Basten JJA the latter differing from the majority as to their application to the facts of the case. They can be summarised in the following propositions: (a) Since the purpose of limitation periods is to preclude stale claims which a Defendant would find difficult to defend given the effluxion of time, it is prima facie prejudicial to a Defendant to allow the commencement of an action outside that period. This is because the Defendant suffers presumptive prejudice where an extension of the limitation period is granted. (b) Although it is a truism that where there is delay the whole quality of justice deteriorates and that such deterioration may in some cases be palpable such as where a crucial witness is dead or an important document has been destroyed, in other cases that deterioration in quality is not recognisable even by the parties. As the United States Supreme Court pointed out in Barker v Wingo (1972) 407 US 514 at 532, cited by McHugh J in Taylor at 551: "What has been forgotten can rarely be shown". (c) Nevertheless, presumptive prejudice of itself may not disentitle the Plaintiff to the leave sought. Although it may be irrelevant that an order extending time would not put the Defendant in any worse off position than it would have been if the action had been commenced within, but towards the end of, the limitation period (Taylor at 554), once the potential liability of the Defendant has ended then its capacity to obtain a fair trial, if an extension of time were granted, is relevant and important. To subject the Defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the Plaintiff of the right to reinstate the lost action. This will often be the case where the Plaintiff is without fault and no actual prejudice to the Defendant is readily apparent. The position is different where a Defendant, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact: Taylor at 555. (d) Where actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the Defendant has proved the fact or the real possibility of significant prejudice: Taylor at 555. (e) "Significant prejudice" means such prejudice as would make the chances of a fair trial unlikely. However, for a trial to be fair, it need not be perfect or ideal." 1. The following are relevant: 1. The incident was immediately reported to the plaintiff's supervisor and was made the subject of incident reports and a compensation claim, which contain details of the circumstances of the accident and the witnesses. There is no suggestion any witnesses or documents are unavailable. 2. The incident was a simple and obvious accident, observed by the other worker, and there is no suggestion in the medical evidence of material which due to the effluxion of time would be lost or misunderstood. 3. The incident must have been investigated, because the insurer accepted liability. 1. I was addressed only in the briefest of terms as to there being presumptive prejudice and I am of the view that the "truism" of the evils of delay should be viewed in the common-sense manner explained by Tobias JA. 2. I am therefore satisfied that a fair trial of the issues in this case can take place, notwithstanding the effluxion of time. Concluding remarks 1. Taking all of the above into account, I exercise my discretion to grant leave to the plaintiff to commence proceedings by filing a statement of claim in these proceedings by 12 January 2017, as reflected in the orders below. 2. The parties agreed that costs should be costs in the cause. 3. I have also listed the proceedings for directions before the Registrar on Thursday 19 January 2017. Orders 1. Pursuant to s 151D(2) Workers Compensation Act 1987 (NSW) grant leave to the plaintiff to commence proceedings for damages in respect to the injuries he suffered on 24 July 2011, such proceedings to be by way of statement of claim filed in these proceedings on or before 12 January 2017. 2. Costs to be costs in the cause. 3. Proceedings listed for directions before the Registrar on Thursday 19 January 2017. ********** 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: 15 December 2016