Claimant Granted Leave to Commence Proceedings Outside Time Limit Due to Injury Instability

The court granted the claimant leave to commence proceedings against the respondent outside the usual time limit provided by s 151D of the Workers Compensation Act 1987, due to the instability of the claimant's injury and the need for a whole person impairment assessment.

New South Wales District Court

CITATION: [NAME] v [COMPANY] [2008] NSWDC 175

HEARING DATE(S): 31 July 2008 EX TEMPORE JUDGMENT DATE : 31 July 2008

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

On the plaintiff's motion filed on 11 April 2008: 1 Leave is granted pursuant to s 151D of the Workers Compensation Act 1987 to the plaintiff to commence proceedings against [COMPANY]. 2 The leave granted is to be exercised by not later than 18.8.08.

DECISION: 3 Liberty to apply to vary this date. 4 Costs of the motion will be costs in the cause. On the [NAME] defendant's motion filed on 18 February 2008: 1 Motion dismissed. 2 Costs of the Motion will be costs in the cause.

CATCHWORDS: S 151D - delay resulting from delay in stabilisation of injury and assessment of workplace injury - whether explanation satisfactory

LEGISLATION CITED: Workers Compensation Act 1987

[NAME] (Plaintiff) [COMPANY] being part of the [NAME] t/a [NAME] (First defendant) PARTIES: [COMPANY] being part of the [NAME] t/a [NAME] (Second defendant) [COMPANY] being part of the [NAME] t/a [NAME] (Third defendant) [COMPANY] (formerly known as [COMPANY]) ([NAME] defendant)

FILE NUMBER(S): Newcastle 408/06

COUNSEL: [redacted] [NAME] ([NAME] Defendant)

SOLICITORS: [redacted] [NAME] ([NAME] Defendant)

JUDGMENT

1 There are before the court in this matter two motions. The first in time was filed on behalf of the defendant, the [NAME] defendant, [COMPANY], formerly known as [COMPANY], seeking orders that the plaintiff's statement of claim be dismissed as against the [NAME] defendant. The application is based upon the commencement of proceedings against the [NAME] defendant outside the time limited by s 151D of the Workers Compensation Act 1987 in the absence of the leave of the court to do so.

2 The application filed on behalf of the plaintiff, recognising that the position taken by the [NAME] defendant was correct, is an application for leave to commence proceedings pursuant to the relevant section outside the three year time limit provided.

3 The determination of the defendant's application, of course, depends upon the determination of the application for leave to proceed and, accordingly, I deal with that application first.

4 There are a number of affidavits in evidence before me that set out the circumstances of the claimed injury and the treatment provided to the plaintiff as a consequence of the injury. The material indicates that the plaintiff's injury was alleged to have been suffered on 3 September 2003 when he was employed by the [NAME] defendant. He consulted a solicitor in November 2003 and, notwithstanding that he had legal assistance from that early date, action was not taken to pursue a claim for work injury damages until February 2007.

5 The circumstances of the delay are explained in the plaintiff's affidavit and in the affidavit of his solicitor, [NAME]. They indicate that the plaintiff's injury did not respond to initial treatment and that a period of extended treatment was required whilst his condition apparently continued to deteriorate.

6 [NAME] by May 2005 advised his client of the need to obtain some evidence of whole person impairment in order, as best as possible, to secure his position before the limitation period expired in September 2006.

7 In August 2006 a claim for lump sum compensation was made under the relevant workers compensation legislation. Agreement was reached in October 2006 between the plaintiff and the workers' compensation insurer that his whole person impairment exceeded 15 per cent.

8 As I have already noted, the notice of claim for work injury damages was served on 9 February 2007.

9 The defendant opposes the application, arguing a number of features. The first is that the plaintiff ought to have taken action to have the whole person impairment assessed at an earlier stage, thus preserving his position under s 151D of the Act. This may well appear to be a sensible proposition with the benefit of hindsight but it is apparent from the material put before me that, even at August 2006 when the claim for lump sum benefits was made, the plaintiff's condition was not stable and that the decision to wait until there was some sort of stability in his medical condition before commencing proceedings was a reasonable one.

10 The second argument for the [NAME] defendant was that [NAME], who is the person nominated by the plaintiff as the fellow employee who was with him at the time of the accident that allegedly caused his injuries, has no memory of the incident. An affidavit from [NAME] to that effect is in evidence. It was said that [NAME]'s evidence was critical to the defence of the claim and that in the absence of any recollection on his part the [NAME] defendant was in a position where it would not secure a fair hearing of the issues.

11 A number of other persons were nominated by the plaintiff as persons who were employed by the [NAME] defendant on 3 September 2003 and who were informed on that date of the incident and the circumstances in which it occurred. There was, somewhat belatedly, evidence put before me in the form of an HIAS report prepared, as I understand it, by [NAME] indicating that an investigation was undertaken of the circumstances of the injury and that among the investigation team were [NAME], also known as [NAME], the plaintiff's supervisor and a [NAME], the contractor's site manager.

12 In those circumstances I am not satisfied that [NAME]'s evidence had the critical quality argued for by the [NAME] defendant to the point where it would not be able to secure a fair trial.

13 The [NAME] defendant has not put before me any evidence that it does not have the necessary records of the incident or that it does not have access to [NAME] or to the other witnesses nominated by the plaintiff.

14 The final feature of the application is that the period by which the plaintiff was out of time was relatively short, being the period between September 2006 and February 2007.

15 In the circumstances where the defendant has not satisfied me that it could not secure a fair trial of the issues, where the period between the expiry of the limitation period and the instigation of the appropriate proceedings is relatively short and the indications are that the plaintiff, a [NAME] man at the time of the injury, suffered significant consequences, it appears to me that it would be just and reasonable to grant leave to the plaintiff to commence proceedings outside the time limit provided by s 151D of the Act.

16 I note that by reason of proceedings that are current in the Equity Division of the Supreme Court, I am asked to provide for the commencement of proceedings on or before 18 August 2008 with liberty to apply in the event that the [ADDRESS] proceedings require a further extension of that time. The leave granted may be exercised nunc pro tunc so that a further statement of claim will not be required.

17 On the matter of costs, it was argued by the plaintiff that this was an appropriate case in which to order that costs be costs in the cause. The [NAME] defendant seeks an order on the basis that its position was not wholly unreasonable and that the plaintiff was seeking an indulgence from the court and, therefore, the court ought to adopt the principles previously adopted by the Court of Appeal and require that the plaintiff meet the costs of the application.

18 Given the circumstances of the legislation in which the plaintiff's claim had to be dealt with and the evidence concerning the ongoing instability in his medical condition, it is my view that the approach taken by his solicitor was a sensible and reasonable one and that the constraints of the legislation have conspired against both the plaintiff and the [NAME] defendant in this case.

19 In those circumstances, I consider it appropriate that costs be costs in the cause.

20 The defendant's application is dismissed. Costs of that application will be costs in the cause.

ORDERS 21 On the plaintiff's motion filed on 11 April 2008: 1 Leave is granted pursuant to s 151D of the Workers Compensation Act 1987 to the plaintiff to commence proceedings against [COMPANY]. 2 The leave granted is to be exercised by not later than 18.8.08. 3 Liberty to apply to vary this date. 4 Costs of the motion will be costs in the cause.

22 On the [NAME] defendant's motion filed on 18 February 2008: 1 Motion dismissed. 2 Costs of the Motion will be costs in the cause. *********

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.