Sweeney v Ashton Coal Operations Pty Limited [2017] NSWDC 58

District Court New South Wales

Medium Neutral Citation: Sweeney v Ashton Coal Operations Pty Limited [2017] NSWDC 58 Hearing dates: 13 March 2017 Date of orders: 13 March 2017 Decision date: 22 March 2017 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Pursuant to s 151D Workers Compensation Act 1987 (NSW), grant leave to file a statement of claim for damages in relation to the injuries suffered by the plaintiff on 24 August 2013. (2) The plaintiff's solicitor to pay the defendant's costs of the notice of motion. (3) Statement of Claim filed in 28 days. (4) Matter stood over for further directions before the Registrar on Thursday 27 April 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: Motor Accidents Act 1988 (NSW), s 52(4) Workers Compensation Act 1987 (NSW), s 151D Cases Cited: Salido v Nominal Defendant (1993) 32 NSWLR 524 Category: Procedural and other rulings Parties: Plaintiff: Jason Sweeney Defendant: Ashton Coal Operations Pty Limited Representation: Counsel: Plaintiff: Mr D Benson Defendant: Ms M Browne (solicitor)

Solicitors: Plaintiff: Slater & Gordon Defendant: Sparke Helmore File Number(s): 2016/368228 Publication restriction: None

Judgment 1. By Summons filed on 2 December 2016, the plaintiff seeks orders as follows: 1. The plaintiff have leave pursuant to the Workers Compensation Act, 1987 as amended, section 151D to file a Statement of Claim claiming damages in relation to injuries sustained by the plaintiff on 24 August 2013. 2. Such further order or orders as this Honourable Court thinks fit. 1. This application was not opposed and the period of delay is short. My reasons for the orders I made on 12 March 2017 will accordingly be brief. 2. The circumstances of the plaintiff's injury were as follows. On 24 August 2013, the plaintiff was working at the defendant's mine, close to long wall 6B of the main gate area, when the rib coal fell in, knocking the plaintiff to the ground with some force. There were large rocks covering his body which had to be removed so that he could be carried outside by a stretcher to the ambulance. He saw his local practitioner after discharge from hospital and underwent a series of tests, followed by conservative treatment, for injuries that Professor Ghabrial describes as "severe" (report dated 13 January 2016). 3. In his affidavit of 30 November 2016, the plaintiff sets out his subsequent attempts to return to work as follows: "10. I was off work for about three months following the injury following which, I returned to work to suitable duties, upon a graded increase in hours. 11. By February 2014, I was working full hours on the surface but undertaking restricted duties. 12. By March 2014, I was working a full shift but on surface duties only. 13. By November 2014, I embarked upon a trial of full underground duties but with persisting symptoms in my back and right pelvic/hip area. 14. I returned to work on Australia Day 2015 with persisting symptoms and some restrictions but proceeded to a further trial of full duties in February 2015. This resulted in an increase of my symptoms in my back and pelvic/hip area. … 18. I had already been struggling with working three consecutive shifts as it was and did not believe I was able to sustain the new shift regime. 19. Apart from the physical symptoms, I had been experiencing in my back/pelvis/hip, I was also continuing to suffer from anxiety and depression, matters which I had discussed with Dr Dobler from time to time. 20. On 13 April 2015 Dr Dobler referred me to Dr Geoffrey Robinson, Psychiatrist under whose care I have remained. 21. I last worked on 13 April 2015. 22. I remain under the care of Dr Dobler and Dr Robinson and have also seen Dr Kuru, Spinal Surgeon." 1. The plaintiff first consulted his solicitors on 9 April 2015, shortly before ceasing work. On 23 September 2015 the plaintiff informed his solicitor that he was no longer able to work. He was certified as totally unfit for work in October 2015 and was referred to counsel on 20 January 2016. A statement of claim was filed in the Residual Jurisdiction of the District Court on 6 April 2016. 2. Most unfortunately, the limitation period expired on 24 August 2016 and this was not picked up by the solicitors for the plaintiff until 8 September 2016. Counsel drafted a Summons which was filed on 2 December 2016.