District Court New South Wales Medium Neutral Citation: Fugar v Western Earthmoving Pty Ltd [2019] NSWDC 395 Hearing dates: 2 August 2019 Date of orders: 09 August 2019 Decision date: 09 August 2019 Jurisdiction: Civil Before: Judge Levy SC Decision: 1. Pursuant to s 151D of the Workers Compensation Act 1987, leave is granted to the plaintiff to commence and maintain the present proceedings against the defendant notwithstanding that more than 3 years have passed since the plaintiff's cause of action arose between October 2011 and 19 October 2015, such leave is extended to 15 April 2019, the date on which the plaintiff's statement of claim was filed; 2. The defendant should pay the plaintiff's costs of the notice of motion; 3. Liberty to apply on 3 days' notice if further or other orders are required. Catchwords: LIMITATION OF ACTIONS – work injury damages – claim of bullying and harassment causing the plaintiff to incur severe psychological injury and consequent work incapacity – grant leave to maintain out of time proceedings pursuant to s 151D of Workers Compensation Act 1987 (NSW) Legislation Cited: Workers Compensation Act 1987 (NSW), s 151D, s 151DA Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 318 Cases Cited: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 Gower v State of New South Wales [2018] NSWCA 132 Itex Graphix Limited v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104 Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15 Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; [1986] HCA 1 Sydney City Council v Zegarac (1998) 43 NSWLR 195 Category: Procedural and other rulings Parties: Leanne Maree Fugar (Plaintiff) Western Earthmoving Pty Ltd (Defendant) Representation: Counsel: Mr H Marshall SC with Mr P Menary (Plaintiff) Mr I Todd (Defendant) Solicitors: Turner Freeman (Plaintiff) TurksLegal (Defendant) File Number(s): 2019/117252 Publication restriction: None Judgment Notice of motion 1. The plaintiff, Ms Leanne Fugar, brings this notice of motion filed on 29 April 2019 pursuant to s 151D of the Workers Compensation Act 1987 (NSW). She seeks leave to maintain the proceedings although they were filed out of time. The substantive proceedings and the procedural context 1. The plaintiff's substantive claim, which was filed on 15 April 2019, seeks damages for significant psychological injuries which she claims are due to alleged breach of duty of care on the part of her employer, the defendant, Western Earthmoving Pty Ltd. The plaintiff claims that those injuries occurred due to the nature and conditions of her employment with the defendant between October 2011 and 19 October 2015. 2. The defendant denies that it employed the plaintiff. However, it admits that it paid the plaintiff to work as a personal carer for Mr Walter Ragg, now deceased, the founder of the defendant company. Before his death, and whilst the plaintiff worked as his carer, the deceased had dementia and exhibited challenging behaviours. The defendant admits the plaintiff has incurred psychological injury but denies all alleged breaches of duty of care, and in the alternative alleges contributory negligence. 3. Amongst the other defences pleaded, the defendant relies on s 151D of the Workers Compensation Act, which requires that the plaintiff obtain the leave of the Court to continue and maintain these proceedings. 4. The substantive proceedings are listed for a 4 day contested hearing on all issues. That hearing is to commence on 22 October 2019. It is therefore of some pressing importance to the parties that the present notice of motion be determined quickly. Issues 1. To obtain the leave claimed, the plaintiff must establish first, that she has a reasonably arguable case against her employer; secondly, that there is a sufficient and acceptable explanation for each period of delay that has occurred in commencing the proceedings; and thirdly, that a fair trial of the case could be had without the defendant suffering significant prejudice, as distinct from the presumptive prejudice that generally accompanies litigation on disputed matters of fact. Factual background 1. The plaintiff was aged 46 years when she commenced her employment with the defendant. She has not worked since leaving that employment following the circumstances in contention in this case. Medical opinion is that she is no longer capable of employment following those events. She is now aged 52 years. 2. The plaintiff claims that the deceased, and his daughter, allegedly subjected her to workplace bullying, intimidation, harassment, ostracism, as well as subjecting her to demeaning, persecutory, verbally aggressive, and threatening behaviour. 3. As a consequence of those matters, the plaintiff claims she has incurred serious and debilitating psychological illness, including a major depressive disorder, post-traumatic stress disorder, a generalised anxiety disorder, a panic disorder, and agoraphobia. Evidence 1. The plaintiff relied upon the following evidence: 1. Her own affidavit sworn on 4 June 2019; 2. The affidavit of her solicitor, Mr Luke Power, also sworn on 4 June 2019; 3. A folder of documents comprising a copy of the plaintiff's pre-filing statement filed in accordance with s 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). 1. By leave, the plaintiff was cross-examined on limited issues regarding the contents of her affidavit and aspects of her statement contained in her pre-filing statement: Ren v Jiang [2014] NSWCA 1, at [11] – [12]. From the outset, the plaintiff gave her evidence tearfully and hesitantly. She avoided eye contact, which, she explained, was a method of self-protection: T14.22 – T14.34. She was clearly in a state of upset throughout her evidence, as was remarked upon at the hearing of the motion. 2. The defendant relied upon a tender bundle of affidavits (Exhibit "1") comprising: 1. The affidavit of Mr Graham Ragg, sworn on 9 July 2019. Mr Graham Ragg is the managing director of the defendant company, and he is the son of the deceased; 2. The affidavit of Ms Deborah Johnson, sworn on 9 July 2019, the daughter of the deceased; 3. The affidavit of Ms Corinna Cook, affirmed on 12 July 2019. Miss Cook is a solicitor in the firm representing the defendant company. 1. The affidavits relied upon by the plaintiff were admitted without objection. The affidavits relied upon by the defendant were the subject of objections, as follows: 1. In the case of Mr Ragg's affidavit, objection was taken to paragraphs 3, 9, 10, 11, 12, 13, 14, 15, 16 and 17; 2. In the case of Ms Johnson's affidavit, objection was taken to paragraphs 4, 6, 9, 10, 11 and 12; 3. In the case of Ms Cook's affidavit, objection was taken to paragraphs 4, 5, 6, 7, 8, 9, 10 and 11. 1. In view of the limited threshold issues to be determined at this interlocutory stage, I have admitted the affidavits relied upon by the defendant for the purpose of assessing the background context. However, I give limited weight to those portions of the affidavits which involve disputed matters of fact as to the nature of the plaintiff's employment. This is because the matters raised by the defendant and objected to by the plaintiff, are largely matters to be determined at the trial. The material that is objected to by the plaintiff, essentially forms relevant background material that defines the ultimate issues for analysis and findings at a trial. Relevant legislation 1. The particular statutory scheme under which this notice of motion must be considered is s 151D of the Workers Compensation Act 1987 (NSW), which 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, Chapter 5 of the Motor Accidents Compensation Act 1999 or Part 4 of the Motor Accident Injuries Act 2017. Whether the plaintiff has a reasonably arguable case against the defendant in negligence 1. In support of her claim, the plaintiff has particularised numerous allegations of negligence and numerous alleged non-compliances with statutory provisions concerning workplace health and safety. For the purpose of determining the present motion it is not necessary to further refer to or analyse those allegations. 2. This is so because there is no dispute that the plaintiff suffers a permanent psychological impairment that is sufficient for her to be entitled to bring this claim. In rounded down figures, her claim is for $1.65M. 3. The plaintiff's factual statement and a related annexure that form part of her pre-filing statement includes disturbing descriptions of behaviour which, if accepted, would support a substantial claim for damages as particularised because of the matters the plaintiff described having to endure whilst working as the deceased's carer. 4. The plaintiff's pre-filing statement also includes a compelling expert liability report dated 15 January 2019 from Dr Linda Shallcross of Linda Shallcross & Associates, which supports the plaintiff's claim of negligence. The expert's summary was that the plaintiff was required to work in a high risk environment with a man known to have violent and abusive behaviours, and where she was also bullied by other company personnel. The expert concluded that the defendant seemed to have shown little if any concern for the health and safety of the plaintiff, and that to the extent that any precautionary safety measures may have been taken, they were ineffective. 5. In addition, the plaintiff's claim of causation of psychological harm is cogently supported by the considered expert opinion from Dr Selwyn Smith, a consultant psychiatrist, in his report dated 16 October 2018. Dr Smith's report provides compelling descriptive evidence that the nature and conditions of the plaintiff's work as the deceased's carer caused her to suffer a severely disabling and recognisable psychiatric injury that was reasonably foreseeable, and which now has a poor prognosis for recovery. 6. The discretion to extend time for filing of proceedings as is conferred by s 151D of the WC Act is a broad one which must be exercised according to what is fair and just in the circumstances, and according to what the case requires: Itex Graphix Limited v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104, at [72]. 7. As was stated in Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15, at [19], the proper starting point to assessing the arguability of the plaintiff's claim, is to look at the duty that the employer owes to an employee to take reasonable steps to provide a safe system of work. The next stage of the analysis involves multiple factual questions. 8. Matters such as the relevant risk of harm, and scope and content of the duty of care owed, and whether there was a relevant breach of the duty of care owed, are all proper questions to be explored and proven at a trial. 9. At this threshold interlocutory stage, I consider it is determinative that the defendant had made payments to the plaintiff to carry out her work as the deceased's carer. The fact that the plaintiff did so under the control and direction of relevant employees and directors of the defendant company, raises an arguable case that the plaintiff was owed a relevant duty of care when the entire relationship between the parties is considered: Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16; [1986] HCA 1, at [20]. This is also a trial question. 10. As to the remaining elements of the plaintiff's claim, that is, the factual basis of the plaintiff's claim of having been the subject of the behaviours complained of, and that such behaviours, caused her resultant psychological damage, the arguability of those matters is supported by her affidavit and oral evidence, her pre-filing statement, and the medical evidence. 11. In my view, based on the matters reviewed above, at the threshold level for determining whether the plaintiff should be granted the leave she seeks pursuant to s 151D of the Workers Compensation Act, I am satisfied that the plaintiff has a strongly arguable case to be tried. It is not an inherently weak case of the kind which justified a refusal of a grant of leave as was the case in Gower v State of New South Wales [2018] NSWCA 132, at [149]. Whether plaintiff's explanation for the delay is sufficient and acceptable 1. The parties agree that after taking due regard to the running, suspension and recommencement of time provisions in the Act, the calculated out-of-time commencement of the proceedings in this case is 205 weeks: MFI "1"; T3.48; s 151DA of the WC Act. 2. Relevant to that period of delay, Dr Smith recorded the plaintiff's significant presenting problems as being persistently depressed, in despair, irritable, anxious, and having ongoing ruminations about the untoward events she has experienced. Although he observed that the plaintiff was alert, he also found that her concentration was reduced, she had suicidal ideation, and that her memory for her adverse work-related experiences was particularly acute. He confirmed his diagnosis of the plaintiff as having chronic major depressive disorder and a chronic general anxiety disorder of chronic duration. He considered that she is unable to work. 3. In October 2015, shortly after leaving her position as the deceased's carer, the plaintiff was diagnosed with severe post-traumatic stress disorder. At that time she was unfamiliar with the complexities of the workers' compensation system: T13.2. Furthermore, as a particular facet of her traumatic experiences in the workplace, and due to the ongoing effects those experiences had upon her, which led to the described medical diagnosis, she held a profound fear of retribution from her employer: T13.7. 4. She explained that she avoided seeking out advice for a time on account of those factors, and it was not until 19 October 2016 that she sought advice from an employment lawyer in relation to her unpaid leave and superannuation entitlements. It was only then that she began to recognise and engage with the need to pursue her legal rights: T13.10; T16.11. 5. Until that time, and continuing, the plaintiff has been affected by agoraphobia. She was not well, both physically and emotionally, her mental functioning was greatly affected in an adverse way, she was suffering fatigue, exhaustion and fear of retribution from her employer if she raised issues concerning what had happened to her at her work. She explained that she was frightened of being harmed: T16.50 – T17.20. 6. The plaintiff's mental state has remained badly affected, and it has worsened at times in some situations: T18.25 – T18.39. Her explanation for the delay she experienced before she consulted an employment lawyer was that she was in no state to talk to anybody, and was doing the best she could to just look after herself: T19.20. 7. After the plaintiff saw an employment lawyer she was advised to see her present solicitor, Mr Power. She did so in early March 2017, after the lapse of about 5 months: T22.49; T23.25. Her explanation for that delay was that it took time for her to deal with the processing of her superannuation entitlements. She found commonplace life administration tasks to be too difficult to manage in light of her agoraphobia and her overall condition: T23.3 – T23.20. Her agoraphobia fluctuated depending upon her level of anxiety: T26.3 – T26.11. It took her weeks to first consult a doctor after she left the defendant's employment: T27.44. It is understandable that she took an avoidant approach to matters that were likely to have provided further triggers for her anxiety. 8. I am satisfied that the described circumstances represent a sufficiently adequate and satisfactory explanation for the delay. The explanation for the delay incurred requires a lesser threshold in this instance, compared to where, as remarked upon in Itex Graphix Limited v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104, at [91], a deliberate and fully informed decision had been made so as to allow a statutory limitation period to expire. That latter comment has no application to the present case. Whether a trial would cause unfair prejudice to defendant 1. The determination of whether prejudice of a significant kind arises that would militate against a fair trial being had, is a paramount consideration: Itex Graphix Limited v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104, at [88]; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, at 555. 2. Presumptive prejudice is attendant upon litigation generally, and it potentially impacts upon the interests of all parties with a stake in the outcome of the litigation. 3. In cases where there has been a sufficiently and acceptable explanation for the delay in commencing proceedings, the remaining question to be examined is whether a material or significant prejudice exists that would preclude a fair trial of the issues. 4. Absent any statement made by the deceased, the evidence indicates that other relevant actors are available to give evidence on matters of disputed fact. If the deceased was still available, it is unlikely that he would have been able to give any relevant evidence because of his undisputed cognitive impairment which gave rise to the behaviours which have led to these proceedings. 5. The initial delay in the plaintiff bringing her complaints to the defendant's attention was due to her illness and her fear of retribution, as she explained in her evidence: T13.7. 6. The evidence shows that the plaintiff then went through the requirements of the regime for workers' compensation to claim her workers' compensation entitlements. I infer from that process that the workers' compensation insurer was most probably satisfied that there was a valid work-related basis to make payments to her of her statutory entitlements. Such payments related to the significant factual circumstances upon which the plaintiff's case is based, would have been unlikely if there had not been that level of investigation. Those factual investigations would be capable of being used by the defendant in the defence of these proceedings. In my view, those circumstances tend to contra-indicate the existence of a significant prejudice preventing the defendant from having a fair trial. The plaintiff has discharged her evidentiary onus in that regard. 7. The defendant has not pointed to any matters that could be characterised as material or significant prejudice of the kind that would impede or prevent a fair trial of the issues. The defendant has not discharged its evidentiary onus in that regard: Sydney City Council v Zegarac (1998) 43 NSWLR 195, at p 197; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, at 547. Disposition 1. I find that the plaintiff has satisfied the requisite elements necessary for the exercise of the discretion sought pursuant to s 151D of the WC Act. Costs 1. The plaintiff has succeeded in obtaining the orders sought. This gives rise to the consideration of the appropriate order for costs. In the present case, there is no reason why costs should not follow the event. The defendant should pay the plaintiff's costs of the notice of motion filed on 29 April 2019. Orders 1. I make the following orders: 1. Pursuant to s 151D of the Workers Compensation Act 1987 (NSW), leave is granted to the plaintiff to commence and maintain proceedings against the defendant notwithstanding that more than 3 years have passed since the plaintiff's cause of action arose between October 2011 and 19 October 2015, such leave is extended to 15 April 2019, the date on which the plaintiff's statement of claim was filed; 2. The defendant should pay the plaintiff's costs of the notice of motion; 3. Liberty to apply on 3 days' notice if further or other orders are required. ********** 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: 09 August 2019