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. The relevant legal principles 1. Section 151D Workers Compensation Act 1987 (NSW) provides: "151D Time limit for commencement of court proceedings against employer for damages (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. The applicable principles are set out in Salido v Nominal Defendant (1993) 32 NSWLR 524, although that judgment related to an application under the s 52(4) Motor Accidents Act 1988 (NSW). The approach the court should take is set out by Gleeson CJ at 532: "1. S52(4) confers a discretion which is to be exercised judicially, in a manner that furthers the purposes of the statutory context in which it appears. The immediate purpose, as with any limitation period, is to protect defendants against the injustice of stale claims; the statute is also aimed at promoting forensic diligence. 2. Bearing in mind those statutory purposes, the question is whether, in the circumstances of each individual case, the applicant for leave has demonstrated that it is fair and just that leave should be granted. 3. The diligence, or lack of diligence, shown by a plaintiff or a plaintiff's representatives, in ascertaining and asserting his or her rights will ordinarily be a material factor, as will the extent of the relevant delay, and the reason for it. 4. The nature and extent of any forensic disadvantage to a defendant resulting from a plaintiff's delay will also be material. The effect, if any, of the delay upon the defendant's ability to defend an action is a matter to be taken into account, and may in some cases be of decisive importance. 5. Leave under s52(4) may be refused if it would be plainly futile to grant it, and in that connection an applicant's willingness and ability to give a full and satisfactory explanation of any delays in reporting to police, notifying claims and commencing proceedings will be material." 1. Mr Benson, for the plaintiff, submits that the plaintiff is out of time for only a brief period, and as a result of oversight by his solicitor (an oversight which is reflected in the costs orders those solicitors proposed, and which I have accordingly made). 2. The plaintiff's injury and claim have been fully investigated by the defendant and its insurer and in fact the defendant through its insurer continues to pay benefits to the plaintiff pursuant to the Workers Compensation Act 1987 (NSW). In those circumstances, even presumptive prejudice would be hard to detect. 3. The defendant not oppose the granting of leave, and does not challenge any of the matters deposed to by Stuart Brendan Barnett and/or the plaintiff in their respective affidavits. 4. I also take into account the following: 1. The circumstances of the plaintiff's accident are, in my view, strongly indicative of negligence for which the defendant, as the plaintiff's employer, is liable (see the plaintiff's affidavit, paragraph 9 and the Coal Notification Incident form, which is Annexure B to that affidavit). 2. As the plaintiff's subsequent treatment regime shows, he has assiduously taken every step by way of treatment rehabilitation and return to work. 3. The plaintiff took timely steps to ascertain his legal position once he ceased work with the defendant (affidavit, paragraph 21, see also affidavit of Stuart Brendan Barnett sworn 9 April 2015), not having had relevant legal advice prior to that time. 1. It is clear from the affidavit of Stuart Brendan Barnett that: 1. The failure to commence proceedings on or about 24 August 2016 was the product of oversight by the plaintiff's legal advisers; 2. Upon discovery of the omission, the defendant was immediately put on notice of the plaintiff's intentions (affidavit of Stuart Brendan Barnett, paragraph 16); and 3. Proceedings were commenced promptly thereafter. 1. Taking all of the above into account, leave under s 151D should be granted. Costs and other orders 1. As noted above, the plaintiff's solicitors undertake to pay the defendant's costs of this application as agreed or assessed. I note that the defendant does not oppose this application on that basis. The parties have agreed to a timetable for pleadings to be filed and for directions as to the future conduct of the proceedings before the Registrar. Orders 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. ********** 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: 23 March 2017