Service v MacDougall [2011] NSWDC 66

District Court New South Wales

Medium Neutral Citation: Service v MacDougall [2011] NSWDC 66 Hearing dates: 31 May 2011 & 1 June 2011 Decision date: 01 June 2011 Jurisdiction: Civil Before: Neilson DCJ Decision: I grant leave to the Plaintiff to commence proceedings pursuant to section 151D(2) of the Workers Compensation Act 1988 by filing a Statement of Claim on 2 February 2011 The Defendant's Notice of Motion filed on 20 April 2011 is dismissed I order that the costs of each Notice of Motion be costs in the cause Catchwords: LIMITATION OF ACTIONS - Extension of period - By leave of Court

WORKERS COMPENSATION - Alternative Rights Against Employer - Work Injury Damages - Extension of Period

Statutory Interpretation - Workers Compensation Legislation Legislation Cited: Workers Compensation Act 1987 s 151D(2) Workplace Injury Management and Workers Compensation Act 1998 s 282(1) Cases Cited: Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104 Tang v PM Industries Pty Ltd (Master Greenwood, 31 October 1996) Smith v Mann (1932) 47 CLR 426 Strasburger Enterprises Pty Ltd v Serna [2008] NSWCA 354 Wattyl Australia Pty Ltd v McArthur [2008] NSWCA 326 Category: Interlocutory applications Parties: Callum Robert Service (Plaintiff) Garry MacDougall (Defendant) Representation: Mr B G McManamey (Plaintiff) Mr P M Morris SC (Defendant) Stacks Goudkamp (Plaintiff) Moray and Agnew (Defendant) File Number(s): 2011/34436

Headnote

Application for extension of statutory limitation period. P was injured on 5 March 2001. He was a resident manager in D's hotel. After the close of business armed offenders broke into the hotel in order to commit robbery. They knocked on P's residence's door. P, thinking it was another resident manager, answered the knock at the door and was assaulted with a firearm, marched at gunpoint to another part of the premises, used as a hostage to obtain keys from the other resident manager and tied up. The offenders used keys to open the hotel's safe. P had two weeks sick leave and some counselling and then returned to work. He had developed PTSD. A month or two later his duties were changed and he lost the benefit of free accommodation. PTSD was diagnosed on 13 April 2006 and because of symptoms P resigned his employment on 24 August 2007. He made a claim for workers compensation on 2 October 2008, consulted a solicitor on 8 October 2008 and gave notice of a claim for work injury damages on 7 April 2009. He was certified as having 15% WPI by a Medical Appeal Panel, but had no entitlement to any lump sum compensation under Workers Compensation Act 1987, s 66. Held: (1) It was fair and just that P be entitled to bring proceedings and leave was granted under section 151D(2) of the Workers Compensation Act 1987. Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207 applied. Tang v PM Industries Pty Ltd (Master Greenwood, 31 October 1996) referred to. (2) D alleged he was prejudiced by delay be reason of a loss of ability to challenge causation of the diagnosed injury, and by lack of "before and after" evidence. Section 326 of Workplace Injury Management and Workers Compensation Act 1998 precludes such a challenge as decision of AMS / Medical Appeal Penal is conclusive as to the degree of WPI resulting from the injury, so that the whole of the diagnosed condition covered by WPI must be taken to result from the injury. Smith v Mann (1932) 47 CLR 426 at 451 referred to. (3) The proper construction of s 280A and s 280B of the 1998 Act does not require that an injured worker actually receive lump sum compensation under s 66 of the 1987 Act where there is no such entitlement. S 280B(1) uses the words "any permanent impairment compensation" which must be contrasted with "permanent impairment compensation". Wattyl Australia Pty Ltd v McArthur [2008] NSWCA 326. Strasburger Enterprises Pty Ltd v Serna [2008] NSWCA 354 referred to.

Judgment 1HIS HONOUR: There are before me two motions on notice. On 14 April 2011 the plaintiff filed a notice of motion seeking leave to commence proceedings pursuant to s 151D(2) of the Workers Compensation Act 1987. That is an application nunc pro tunc as the plaintiff had in fact commenced proceedings by statement of claim filed on 2 February 2011. On 20 April 2011 the defendant filed a notice of motion seeking that the proceedings be dismissed. It is common ground that should the plaintiff's motion fail, the defendant's motion must succeed. It follows that should the plaintiff's motion be successful, the defendant's motion must fail. 2The plaintiff alleges in the statement of claim that he received personal injury during the course of his employment on 5 March 2001, though the proceedings were filed, as I have earlier mentioned, on 2 February 2011, almost ten years later. On any view of the usual limitation provisions in this State, it is statute barred. The plaintiff moves the Court to exercise its discretion under s 151D(2) of the Workers Compensation Act 1987, which I shall refer hereafter to as "the 1987 Act". That subsection is in the following terms: " 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 three 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." The next subsection provides that the Limitation Act 1969 does not apply in respect of such Court proceedings. The plaintiff asks the Court to exercise its discretion to permit him to commence these proceedings by 2 February 2011. 3It is firstly necessary to consider the pertinent facts. The plaintiff was born on 6 March 1972 and is currently 39 years of age. On 26 January 2001 he commenced working for the defendant. The defendant, according to the statement of claim, "employed the plaintiff as a brewer at the Markets Hotel, 268 Parramatta Road, Flemington. The evidence discloses that the Markets Hotel has annexed to it a microbrewery known as Paddy's in which, for most of his period of employment with the defendant, the plaintiff worked. The evidence is silent as to whether at all material times that the plaintiff worked at the Markets Hotel/Paddy's Brewery the plaintiff was employed by the defendant. If the plaintiff, during the whole of this period of work at that venue, was not employed by the defendant, one would have thought that the defendant would have adduced evidence to that effect. However, he did not. 4On 5 March 2001, one day prior to the plaintiff's 29th birthday, he was a victim of an armed robbery. On 4 March 2001 and since his commencement with the defendant on 26 January 2001, the plaintiff was working for the defendant as a shift manager and was given, as part of the terms of his remuneration, free accommodation in the Markets Hotel. There appears to have been a designated area to accommodate the resident manager. 5On 4 March 2001, the plaintiff locked up the hotel after trading ceased at midnight. He ensured that all the doors giving access to the hotel were closed and locked. The shift manager rostered for the next day was Mr George Fortune. He was also accommodated in the hotel, but on the evidence before me was accommodated in the residential area of the hotel that was available to patrons. At about 1am on 5 March 2001 there was a knock on the door of the plaintiff's accommodation. He assumed that the person knocking on his door was Mr Fortune. There was no spy hole in the door to the plaintiff's accommodation. He opened the door but was confronted by three men wearing balaclavas and armed with a firearm. The firearm was thrust into the plaintiff's face and the offenders demanded that he give them the keys of the hotel. The plaintiff was struck on the head with the firearm. He told them that he did not have the keys and that they were held by the other manager, who was obviously Mr Fortune. The plaintiff did have some keys and the offenders took those keys, but they would not open either the office in the hotel or the safe in the office. 6The offenders then took the plaintiff at gunpoint to Mr Fortune's room and threatened to kill the plaintiff if Mr Fortune did not open his door. Mr Fortune opened his door and the offenders then obtained his keys with which they were able to open the office and the safe. The plaintiff believes the offenders absconded with between $15,000 and $20,000. The offenders had bound both Mr Fortune and the plaintiff with tape. They were eventually able to free themselves and called the police who arrived shortly after the offenders had decamped. 7It appears that the thrust of the plaintiff's action is that there was a security door within the hotel barring access from the hotel to the plaintiff's accommodation which was defective and could not properly be closed and could not be locked. According to the plaintiff's statement, the then licensee of the establishment, Mr Geoff Jansen, was well aware of the defects in the door. It is also part of the plaintiff's case that the actual entrance to his accommodation could have been fitted with a spy hole so that he could ascertain who might have been knocking on the door of his accommodation. 8It appears that the offenders in question have never been brought to justice. Following upon this armed robbery, the plaintiff took two weeks off work. Those two weeks appear to have been treated as sick leave. The plaintiff had one counselling session. The qualifications of the counsellor are unknown to me. The plaintiff says that the counselling session did not assist him to any extent. The plaintiff's case is that as a result of the armed hold-up he has suffered a chronic post-traumatic stress disorder. After his two weeks off work, the plaintiff returned to his normal work but either one or two months later he ceased to be a shift manager and became, in essence, a barman and the brewer in the boutique brewery attached to the hotel. The plaintiff lost his free accommodation in the hotel. In the particulars filed with the statement of claim the following is alleged: "Following the incident the plaintiff was off work for two weeks. He then returned to work with the defendant but after one month was told to vacate his rent-free premises, and since that time has been obliged to pay rent which is currently $300 a week. A claim is accordingly made for the loss of the value of the rent-free accommodation (being part of the plaintiff's income package) from May 2001 to the present time, in the sum of $151,740.00." Although the plaintiff had lost his position as a shift manager, whilst working as a barman/brewer he maintained the same base salary. 9The plaintiff resigned his employment with the defendant in February 2004 and commenced working with the Redoak microbrewery in Sydney at an increased salary. The plaintiff held that position until July 2005 when he had an argument with his employer. The plaintiff says that he was in fact assaulted by that employer. The plaintiff commenced proceedings in the Industrial Relations Commission. The plaintiff referred to that as an action for "wrongful dismissal" but other documents suggest that it may have been a claim for unpaid employment entitlements. In any event, the plaintiff engaged a solicitor for the proceedings in the IRC. The plaintiff was unable to identify the solicitor in question and told me that he had a practice at King Street in the City of Sydney. 10In the following month, August 2005, the plaintiff returned to working at the Markets Hotel/Paddy's Brewery as a brewer. There is no suggestion that he suffered any wage loss compared with his earnings during his employment between May or June 2001 and February of 2004. 11On 13 April 2006 the plaintiff consulted Dr Brian Burke, a psychiatrist. The plaintiff was referred to Dr Burke by a general practitioner, Dr Terhi Hakola, of Newtown. Dr Hakola practised in a practice known as the Church Street Medical Practice in Newtown where the plaintiff first went in early 2006. The plaintiff told me, and there is nothing to suggest otherwise, that he was prompted to seek medical treatment because of the advice of his father who was concerned about the plaintiff's welfare. 12The plaintiff told Dr Burke that following the armed robbery on 5 March 2001 he had a feeling of total despair and apprehension accompanied with a sense of having no future when he returned work after his two weeks of sick leave. The plaintiff told Dr Burke of a number of symptoms. According to Dr Burke's report of 6 February 2009, the plaintiff developed the symptoms "at the time", by which I infer he means either at the time of the armed robbery or on his return to work two weeks later. However, it appears to me that it is likely that the symptoms developed over a period of time. The symptoms recorded by Dr Burke are these: "Flashbacks to the incident, when faced with any situation which involved danger or violence. Nightmares, with content of a dangerous or violent nature. Insomnia. Anger and irritability. Intrusive, repetitive, distressing thoughts about the assault, often triggered by cues which symbolised or resembled its circumstances. Avoidance of triggering cues when watching television or DVDs. Avoidance of situations with potential for violence insofar as was possible - this presented practical difficulties in that he has returned to work at Paddy's Brewery. His thoughts dwelled [sic] on the assault despite trying to avoid this; he avoided conversations about the assault. He tended to avoid hotels or clubs (apart from his work at Paddy's Brewery), particularly at night. Avoidance of a responsibility. An exaggerated startled response. Poor though variable concentration. Loss of motivation. Depressed mood. Loss of interest in activities which he previously enjoyed, including sport, the movies, fishing and playing his guitar." 13In the same month that the plaintiff consulted Dr Burke there was some change in the plaintiff's employment at the Markets Hotel/Paddy's Brewery and the plaintiff was requested to and did obtain his own ABN. It appears the intention was that the plaintiff cease to be an employee and become an "independent contractor". Whether that was effective or not can be left to the trial judge, if there be a trial. 14Some time between 13 February 2007 and 2 March 2007 the plaintiff attended the Redoak Brewery where he had formerly been employed and committed certain criminal offences. They were affray and malicious damage to property. The plaintiff described what happened at the time to Dr Burke when he consulted Dr Burke on 2 March 2007. The description given by Dr Burke in his report of 6 February 2009 is this: "Describing the circumstances of the incident he said that after drinking a bottle of wine he had left his house at Stanmore to travel by bus to his parents' home at Castlecrag, drinking most of a second bottle along the way. He left the bus in the city to transfer to a second bus but, when walking between the bus stops in an intoxicated state, he had changed his mind and, still angry about the assault of which he was a victim at the [Redoak Brewery], he had gone to the hotel where he damaged a glass cabinet and released beer from beer barrels. When he smashed the glass in the cabinet he cut his arm very badly and the profuse bleeding resulted in his being taken to Royal Prince Alfred Hospital (RPAH) where he was admitted and after the laceration had been repaired he was admitted to the Missenden Unit, the psychiatric ward of RPAH, where he was detoxified and arrangements were made for his admission to the Palm Court Rehabilitation Unit at Rozelle Hospital where he was to undergo a three-week rehabilitation program." What happened at the Redoak Brewery may not have been fully explained to Dr Burke as he does not explain the charge of affray. It appears that the plaintiff pleaded guilty to the offences with which he was charged. Some time between 28 May 2007 and 4 July 2007 he was sentenced by a Magistrate sitting in the Downing Centre Local Court. For the purposes of that sentencing hearing the plaintiff engaged the solicitor he had previously engaged to represent him in the IRC. That solicitor obtained a report from Dr Burke to put before the court, perhaps in an attempt to explain what had motivated the plaintiff to commit the offences to which he had pleaded guilty. The plaintiff was sentenced to perform 200 hours' community service and placed on a bond to be of good behaviour, presumably pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999. 15On 24 August 2007 the plaintiff ceased working at the Markets Hotel/Paddy's Brewery. The plaintiff had told Dr Burke on 18 April 2007 that he was considering resigning from that job in order to embark upon a new career in a field such as information technology or marketing. The reason that the plaintiff gave to Dr Burke for considering resigning his work at the hotel/brewery was "because of the risks to him of the atmosphere in a hotel, to which the brewery in which he was then working was attached." 16It is clear by that stage that not only was the plaintiff concerned about the risk to him from inebriated and violent patrons of the premises but also that the plaintiff had himself developed a major problem with his alcohol consumption. The plaintiff did not take up any tertiary studies. Instead he went to New Zealand "for a few months" in order to reside with his brother who was living New Zealand. The plaintiff was born in New Zealand and came to Australia at the age of 12. During this time in New Zealand the plaintiff worked for four weeks in an hotel. He left New Zealand after having what appears to have been a violent breakdown in his relationship with his brother. The plaintiff appears to have returned to Sydney in September 2008. Some time between then and February 2009 the plaintiff worked for two weeks at the Vic in the Park Hotel at Enmore as a duty manager but only for fifteen hours for each of the two weeks. The plaintiff gave up that employment because he was unable to cope with it. 17Since 13 April 2006 the plaintiff has been regularly attending upon Dr Burke for treatment. That treatment obviously ceased when the plaintiff went to New Zealand. However the plaintiff attended again upon Dr Burke on 26 September 2008 and told Dr Burke that he intended lodging a WorkCover claim in relation to the armed hold-up of March 2001 and told Dr Burke that he had not seen a doctor at the time and did not realise that the two weeks' sick leave he took after the armed robbery should probably have been taken as workers compensation leave. 18The plaintiff's evidence to me is somewhat different to that in that the plaintiff said that he knew that he could have claimed workers compensation back in March 2001 and he knew that the event was "compensable". However, the plaintiff also said that at that time he filled in a workers compensation form. There is, however, no evidence that he did fill out such a form and perhaps the plaintiff misunderstood the questions directed to him or answered with the benefit of hindsight. Following upon what the plaintiff told Dr Burke, he in fact lodged a workers compensation claim form on 2 October 2008. That claim form is Exhibit 2-2 before me. 19Dr Burke had suggested that the plaintiff consult Messrs Stacks Goudkamp and as a result of that referral the plaintiff consulted Mr Ian Chipchase of that firm on 8 October 2008. Whilst I must record events which occurred after that date, Mr Morris, who appears for the defendant, very properly and very helpfully accepted that what happened after 8 October 2008 could represent no culpable delay by the plaintiff or his legal advisers but was in fact dictated by the cumbersome and bureaucratic requirements of the current workers compensation legislation. 20On 23 October 2008 Mr Chipchase requested "a police report" concerning the armed hold-up of 5 March 2001 and he also requested a report from Dr Brian Burke. On 5 November 2008 Mr Chipchase received a telephone call from a Mr Bishop, a licensed inquiry agent, who advised Mr Chipchase that Mr Bishop had interviewed the plaintiff on behalf of the workers compensation insurer of the defendant and had obtained from the plaintiff a written statement. 21On 10 November 2008 Mr Chipchase received the COPS entry for the armed robbery. On 9 March 2009 Mr Chipchase received two reports from Dr Burke; one dated 6 February 2009 and the other dated 18 February 2009. The report of 18 February 2009 provided an assessment of the plaintiff's whole person impairment (WPI) of fifteen per cent. Thereafter he had a lengthy interview with his client on 18 March 2009 concerning the circumstances in which the plaintiff was injured, presumably focusing on the question of liability. 22On 7 April 2009 Mr Chipchase sent a letter to the workers compensation insurer of the defendant in which he advised that he knew that his client was not entitled to lump sum compensation pursuant to ss 66 and 67 of the 1987 Act but pointing out that he was instructed to pursue a claim for work injury damages. Mr Chipchase asked the insurer whether it agreed that the plaintiff suffered from WPI of fifteen per cent as a result of the injury suffered on 5 March 2001. 23On 23 April 2009 Mr Chipchase lodged a claim for WPI with the workers compensation insurer. In his affidavit Mr Chipchase refers to that as a "Permanent Impairment claim form". On 30 April 2009 Mr Chipchase received a reply, not from the workers compensation insurer, but from Messrs Moray & Agnew who were acting for the insurer and who now act for the defendant. The substance of that letter is this: "Our client considers that it is not open to your client to claim work injury damages because he has not claimed, nor can he claim, lump sums pursuant to subs 66 and 67 as required by s 280A of the 1998 Act. We respectfully refer you to Wattyl Australia Pty Ltd v McArthur [2008] NSWCA 326. Should it become relevant, our client does not concede that the injury results in a WPI of at least 15%." That response led to Mr Chipchase filing an application in the Workers Compensation Commission (WCC) for WPI. The WCC appointed Dr Julian Parmegiani, a psychiatrist, as an approved medical specialist (AMS). It appears that Dr Parmegiani was provided with reports then available from Dr Brian Burke and also a report of Dr John McMahon, a clinical psychologist, who assessed the plaintiff on behalf of the defendant's workers compensation insurer on 1 December 2008 and provided a report of 4 December 2008. Dr Burke's diagnosis was "Chronic Post-Traumatic Stress Disorder with Comorbid Substance Abuse (alcohol) and a gambling habit, all of which are the result of the armed hold-up of which he was a victim on 05.03.2001." As I earlier mentioned he diagnosed WPI of fifteen per cent. 24Dr McMahon did not assess WPI. His opinions are confused. On p 10 of his report he diagnosed "chronic adjustment disorder with anxiety" and "chronic alcohol dependence disorder". There is little difference between a chronic PTSD and a chronic adjustment disorder. Both are defined to be the result of an external psychosocial stressor and each could easily be triggered by being the victim of an armed robbery in which the patient was confronted with a shotgun to the face, struck about the head with the firearm, marched at gunpoint to another part of the premises, and then used to obtain the cooperation of a fellow employee and then tied up. On p 11 of his report Dr McMahon accepted that the adjustment disorder with anxiety had its onset in the armed robbery but went on to say this: "However, it is now maintained and exacerbated by Mr Service's significant substance abuse, including the use of methylamphetamine (ice) and related complications." That is an acknowledgment that the condition was continuing, albeit that its longevity was being prolonged by substance abuse. Insofar as the plaintiff may have been prone to substance abuse, the principle of the common law is that the defendant must take the plaintiff as the plaintiff is; that is, the eggshell skull principle. As to the "chronic alcohol dependence disorder", Dr McMahon said that the plaintiff's "general proclivity towards substance use" was pre-existing and not a consequence of his employment. A proclivity is another word for a tendency or trait. The proclivity, the tendency or the trait may not lead to the ultimate condition unless triggered by some other event. On the formulation made by Dr McMahon on p 11 of his report, one would think that the tendency, proclivity or trait had been either exacerbated or aggravated or triggered off by the armed robbery of 5 March 2001. At the foot of p 12 of his report, Dr McMahon says this: "In my opinion there was clear evidence of a pre-existing substance use disorder including cannabis, alcohol and amphetamines. In my opinion this was temporarily exacerbated by the circumstances of the worker's employment, but any influence of this has resolved and this condition has its own momentum and course." That statement turns the proclivity, tendency or trait into an actual disorder. Furthermore it ignores the history that Dr McMahon himself took: that the plaintiff only used crystal methamphetamine throughout 2006 and 2007, that is, that he only used crystal methamphetamine after the armed robbery and not before it. The plaintiff did give to Dr McMahon a history of taking up cannabis smoking at the age of sixteen years but the doctor did not obtain any history of how frequently it was initially or how frequently it was after the armed robbery. Dr McMahon did take a history of the plaintiff's alcohol use, concentrated on the extent of his alcohol habit at the time of his examination and did not take details of the plaintiff's alcohol habit before and after the armed robbery. Furthermore in the last portion of his opinion which I have just quoted Dr McMahon does not tell anyone why, in his view, the exacerbation was only temporary and why it could be seen to have ceased. 25On p 13 of his report Dr McMahon pointed out this: "The intrusive experiences with content related to the armed hold-up are a consequence of the armed hold-up and therefore of the injury." That appears to be an acknowledgment that the effects of the armed hold-up were continuing in the plaintiff's psychiatric condition. Then on p 14 of his report Dr McMahon expressed this view: "In my opinion Mr Service's current condition and symptomatology is predominantly the consequence of ongoing, heavy alcoholism that predates the date of injury. In my opinion it is more likely than not that the worker's current mental disorder is now unrelated to the work incident." That opinion is clearly contradictory to that part of the opinion on the preceding page which I have quoted above. Furthermore there is no history that the plaintiff had "heavy alcoholism" before the date of the armed robbery in Dr McMahon's report. More importantly, there is no evidence to that effect before me in any form. As I said, the opinions of Dr McMahon are confused. Dr Parmegiani diagnosed chronic post-traumatic stress disorder as diagnosed by Dr Burke and Dr Parmegiani expressed the view that that was complicated by "alcohol abuse", which is another way of referring to the generic "substance abuse" that is referred to by both Dr Burke and under another name by Dr McMahon. Dr Parmegiani answered the question, "Is any proportion of loss of efficient use or impairment or whole person impairment, due to a pre-existing injury, abnormality or condition?" with the answer, "No." He was also asked to state whether there was any "further injury" subsequent to the work injury which has caused any additional impairment and Dr Parmegiani expressed the view that there was no such further injury. The diagnoses and opinion of Dr Parmegiani are the same as those of Dr Burke. However, unlike Dr Burke, Dr Parmegiani only certified WPI of seven per cent. The opinions of Dr McMahon are not referred to by Dr Parmegiani but at least Dr Parmegiani took relevant history which was not taken by Dr McMahon. 26As to the plaintiff's alcohol habit, Dr Parmegiani recorded that before the armed robbery the plaintiff only drank three or four standard drinks of alcohol at weekends. He has a history of an increased alcohol habit after the armed hold-up. As to the plaintiff's cannabis use, Dr Parmegiani took a history that prior to the armed hold-up, the cannabis use was between two and three cones twice per week, increasing after the armed robbery to 10 cones per day. Dr Parmegiani also took a history of the plaintiff's use of crystal methamphetamine. He has a history that the plaintiff starting using it, not in 2006, but in 2003, but like Dr McMahon noted, the plaintiff stopped using that illicit drug in 2007. 27As a tribunal of fact, I find it exceedingly difficult to accept that a person who drank three or four standard drinks of alcohol on weekends, what could be regarded as either four middies of beer or half a bottle of wine, had chronic alcoholism or was an alcoholic, nor could I be persuaded as a tribunal of fact that a person who had two or three cones of marijuana two days a week had a chronic addiction to cannabis. If that history be correct, and there is nothing to say otherwise, the opinion of Dr McMahon is of no value. 28From the decision of Dr Parmegiani, the plaintiff appealed to a Medical Appeal Panel. The appeal was lodged out of time, but the current defendant consented to an extension of time for the making of the appeal. The appeal was to be lodged within twenty-eight days of 7 September 2009. It was not in fact filed until 8 October 2009, a number of days out of time. The current defendant did not require the medical panel to conduct a further examination of the plaintiff. The current defendant did not object to the admission of a further report of Dr Burke that had not been put before Dr Parmegiani. Both the plaintiff and the defendant gave written submissions to the panel which were considered by it. At par 22 of the Statement of Reasons for Decision of the Appeal Panel, which were obviously written by somebody trained in the law rather than in medicine, the following is recorded: "The Appellant worker indicated it's [sic] appeal is limited to the Psychiatric Impairment Rating Scale (PIRS) assessments made by the AMS under the categories of 'social functioning' and 'concentration, persistence and pace'. In respect of each of those, the AMS assessed him as having a Class 2 impairment level." The appeal panel accepted that the plaintiff had a Class 3 functional impairment in respect of "social functioning", but maintained the Class 2 impairment in respect of "concentration, persistence and pace". It therefore increased one of the six categories by one, one being the lowest and five being the highest. However, the end result of that increase in one category of one digit boosted the plaintiff's WPI back to fifteen per cent. 29The appeal was determined on 22 March 2010. On 30 April 2010, Mr Chipchase made another formal claim for work injury damages, giving particulars as required by s 282(1) of the 1998 Act. I should state that by "the 1998 Act", I mean and others involved in the current matter mean the Workplace Injury Management and Workers Compensation Act 1998. By letter of 10 May 2010, Moray & Agnew, on behalf of the defendant, said this: "In response to your letter dated 30 April 2010, which purported to claim work injury damages, we advise that our client disputes that a claim for work injury damages has been duly made because of the absence of a claim for lump sums having first been made in respect of the subject injury. We refer you to section 280A of the [1998 Act]." On 17 June 2010, Mr Chipchase made a formal claim for lump sum compensation pursuant to s 66 of the 1987 Act and s 67 of the same Act. He also reiterated the plaintiff's claim for work injury damages. On 27 September, the plaintiff delivered to the defendant's solicitor a pre-filing statement, which became Exhibit E-E before me, and on 5 October 2010, the defendant delivered to the plaintiff a pre-filing defence. As I earlier mentioned, on 2 February 2011, the plaintiff filed a statement of claim, and on 14 April 2011, the plaintiff's notice of motion was filed. 30The principles to be applied on consideration of the plaintiff's motion are contained in the decision of the Court of Appeal in Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104, particularly in the judgment of Ipp JA. Spigelman CJ concurred with Ipp JA and, in essence, also did Sheller JA. Commencing at [87] his Honour said this: "In my opinion, in limitation legislation such as 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." Those rationales are recited by his Honour in [78] of his reasons. They are these: "(a) As time goes by, relevant evidence is likely to be lost; (b) It is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed; (c) It is desirable 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. Many in the community have a significant interest in knowing that they have no liabilities beyond a definite period; (d) The public interest requires that disputes be settled as quickly as possible." I return now to the summary of the position provided by Ipp JA. It is this: "[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 a 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. It is hardly necessary to provide authority for this proposition, but, in addition to the authorities to which I have already referred, I would cite the following [there follows a large number of decided cases]. [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." 31In the present case, the three-year limitation period expired on 5 March 2004. I am asked to grant an extension to permit the plaintiff to bring the proceedings almost ten years after the event. That is almost seven years after the expiry of the limitation period. There is authority that the weight of the onus that a plaintiff must discharge in order to be granted leave to commence proceedings out of time varies with the length of time which has elapsed since the proceedings became statute-barred and the application for leave being made. The shorter the period of time, the lighter the onus is. That authority is Tang v PM Industries Pty Ltd , a decision of Master Greenwood on 31 October 1996. Given the period now in question, the plaintiff bears a great onus. 32Why has there been such lengthy delay? On any view of it, the cause of action accrued at the time that it occurred on 5 March 2001. The plaintiff suffered what could be described as a major blow to his psyche at that time and it is clear that it has never left him, if the history which he gives be accepted. Although he had two weeks sick leave, when he returned to work he was still affected by his experiences and has remained affected by his experience ever since. This is not a case of a late onset of symptoms due to some event which was initially perceived to be innocuous. However, the plaintiff did return to work and albeit he lost his free accommodation shortly after that return to work, he in essence appears to have worked on without any economic loss until 24 August 2007. He became aware of the nature of his condition antecedent to that fact on 13 April 2006 when he first consulted Dr Burke, who made the diagnosis which he did, which is that accepted by Dr Parmegiani and the Appeal Panel, and which Dr Burke makes clear in his initial report was explained to the plaintiff at the time of his first consultation and when the plaintiff commenced on antidepressant medication. 33Accordingly, it can be seen that the plaintiff was aware of the insult to his psyche ab initio , that is from 5 March 2001, became aware of the diagnosis of his condition and how it was affecting his life when he consulted Dr Burke on 13 April 2006, and became aware of how it was affecting his ability to earn his livelihood and therefore interfering with his capacity to earn when he resigned his permanent employment on 24 August 2007. The delay then is essentially between 24 August 2007 and 8 October 2008 when the plaintiff consulted Mr Chipchase. 34What happened during that period of time? There was a move by the plaintiff to New Zealand to reside with his brother which the plaintiff thought was "for a few months", but that might not be the case as the plaintiff resigned his employment with the defendant 24 August 2007 and by 26 September 2008 he had returned to Sydney. In that month he told Dr Burke that he intended to make a workers compensation claim. He made that some six days later, and six days after that first consulted Mr Chipchase. In his affidavit in the current proceedings, the plaintiff said that prior to consulting Mr Chipchase he was not aware of any possible common law rights or any requirement to give a notice of a claim. On those statements, the plaintiff was not cross-examined. The delay is explicable by this series of events to which I have referred and by the plaintiff's lack of knowledge of his common law rights, of which there may be none, and lack of knowledge of his right to sue at common law, and his being unaware of his entitlement to workers compensation. 35As was submitted on behalf of the plaintiff, it may not be within the knowledge of most workers who are residing in rent-free accommodation on their employer's premises that, if they be injured out of hours, they have an entitlement to workers compensation, especially when that is completely beyond the control of the employer insofar as the injury was caused by offenders against the criminal law. The delay in bringing this application is understandable and has, in my view, been adequately explained. The question really then becomes: what is the prejudice to the defendant? The defendant can point to no actual prejudice on the question of liability. For example, one would have thought that an armed hold-up of the nature described by the plaintiff would have been the subject of a major investigation by the police. Such appears to have been done. Aggravated armed robbery is a significant criminal offence carrying a gaol sentence of 25 years. There is no suggestion, for example, that the facts of the armed robbery are unknown or cannot be corroborated. There is no suggestion that the hotel in question and in particular the accommodation occupied by the plaintiff has been destroyed, changed or modified in any material way since the time of the incident, such that the defendant has been deprived of the opportunity of making inquiries about the plaintiff's allegations on the question of liability. There is no suggestion, for example, that the licensee of the premises at the time, Mr Geoff Jansen, to whom the plaintiff appoints as a person who knew of the faulty security door, has left the employment of the defendant and is uncontactable or has died or cannot be located. There was some debate between the Bench and the Bar table as to whether Mr George Fortune was available, and suffice to say that no agreement could be reached between counsel as to whether he might be available, but he might not be a necessary witness on the question of liability. 36The thrust of the cross-examination of the plaintiff, and a major thrust of the defendant's submissions on this issue, was the fact that the defendant has lost the potential advantage of calling evidence of how the plaintiff was before the armed robbery and how he was after the armed robbery to establish whether the plaintiff's subsequent lapse into alcoholism and other substance abuse might be related to the armed robbery rather than being the result of a pre-existing personality traits or tendencies or a pre-existing established condition. The plaintiff admitted that his wife could give evidence of how he was before and after the armed hold-up, as could his parents and his sister, but admitted that he had been advised by his solicitor not to obtain statements from his wife or any close relative which were to be used in the proceedings. The plaintiff said that there was a statement obtained from a friend of his, Mark Covell, who knew him both before and after the armed robbery and could give evidence on that very fact. 37There then occurred one of those courtroom vignettes which are not often recorded in judgments. The plaintiff had not served a copy of any statement of Mr Covell. For a common lawyer, one would think that nothing would turn on that fact. However, for reasons to which I must in due course turn, that is a salient fact in the current proceedings. Mr McManamey, for the plaintiff, then sought to tender Mr Covell's statement. Mr Morris for the defendant then read that statement, which he had not seen before, but objected to its tender, not because it was irrelevant, not because it was hearsay, not because Mr Covell was not available for cross-examination, but rather because of the provisions of s 318 of the 1998 Act. Section 318(1)(d) provides that a party to proceedings in a Court for work injury damages is not entitled to have any report or other evidence admitted in the proceedings on his, her or its behalf if the report or other evidence has not been disclosed by the party in a pre-filing statement or defence served under the provisions of the 1998 Act. One would have thought that if the statement of Mr Covell were favourable to the defendant, its existence would not have been disclosed by Mr McManamey, but, if it were disclosed, the tender of it would not have been objected to by Mr Morris. He could waive his client's entitlement under s 318(1)(d). However that did not occur. 38The problem, the thrust of that argument, is another provision of the 1998 Act. Section 326 of that Act is in the following terms: "(1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned: (a)the degree of permanent impairment of the worker as a result of an injury, (b)whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, (c)the nature and extent of the loss of hearing suffered by a worker, (d)whether impairment is permanent, (e)whether the degree of permanent impairment is fully ascertainable. (2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings. The argument mounted by Mr McManamey is that the report of both the AMS combined with the Medical Appeal Panel certificate is conclusive to the fact that the plaintiff suffers a WPI of fifteen per cent as a result of the event of 5 March 2001 and excludes the proposition that the plaintiff's condition could be due to some pre-existing condition or abnormality such those diagnosed by Dr McMahon, and also excludes the possibility that some part of the fifteen per cent WPI could be caused by some novus actus interveniens . 39Suffice it to say that, initially, I was gobsmacked by that submission. Whilst previously I have had to deal with medical panel certificates, none of them was usually considered conclusive on the question of the aetiology of a person's loss or impairment. However the Court's role is to enforce the law enacted by Parliament, not to subvert the enacted law. The policy behind s 326 is clear. It is to remove from the purview of the Court and the WCC questions as to not only quantum, but also causation of a medical condition. The rationale behind that might be to save unnecessary litigation or to save costs, but often such policies are thwarted by what is actually enacted. However, the Court must dutifully apply the law. A similar question arose many years ago in Smith v Mann (1932) 47 CLR 426. In that case one of my predecessors referred to a Medical Board pursuant to s 51 of the Workers Compensation Act 1926 questions as to the condition of a worker and his fitness for employment. The Medical Board in its certificate answered those questions and also expressed its opinion as to the cause of the workers condition. The Supreme Court held that the cause of the condition did not come within the scope of the questions referred to the Board, and therefore that my predecessor was not bound by that part of the certificate. The worker appealed to the High Court and a majority, Rich, Starke, Dixon and McTiernan JJ held that the Board's certificate stating the condition and the cause of that condition was a certificate as to the condition of the worker within the meaning of s 51 of the Act and was binding upon my predecessor. Commencing at 451, Dixon J, as he then was, said: "In many causes of traumatic injury and some cases of disease the state of the patient and the cause of that state are two independent matters. But a present stage in a continuous developing pathological condition can seldom be considered apart from previous stages, and when it arises out of or has been influenced by some organic effect produced in the human body the consequences of which are not exhausted, the so-called 'causes' of the man's present condition may form an inseparable part of the description of his 'condition.' No doubt s 51 (3) should be strictly construed but, after all, it was intended to leave medical questions to the determination of medical men. The 'condition' of a patient cannot be described except by reference to the character of his disease, and the character of his disease may be, and perhaps more often than not is, determined or conditioned by its origin. In the state of degeneration by disease which existed in the case of the appellant, the conclusion that it began with and was affected by lead absorption or intoxication enters into and forms part of the complete description of his condition. It follows that it is within the province of the Medical Board to certify that his state arose from lead absorption or intoxication, and that a certificate to that effect would be conclusive." Whilst I have quoted that in extenso , the important point to note is the observation by his Honour that the policy was that it was "intended to leave medical questions to the determination of medical men." The same policy appears to me to lie behind s 326. Initially it was my view that construing s 326 in that fashion would provide an unfair advantage to the plaintiff and a major hindrance to the defendant and would militate against the granting of the relief sought by the plaintiff. However that, again, would be the Court expressing an opinion on what Parliament has provided. 40Furthermore, the effect of s 326 might be overcome in any event if, for example, evidence came forward that is currently unknown or evidence comes forward ex improviso which casts grave doubt upon the history given by the plaintiff to, in particular, Dr Burke and Dr Parmegiani. Under s 327 there can be a further appeal to a medical panel and, alternatively, under s 329 of the 1998 Act there can be a further assessment granted by the Registrar of the WCC, or by the WCC itself, or by "a court", which of course would mean this Court, if the trial judge believed that the history obtained by Dr Burke or Dr Parmegiani was a fraud. The procedure may be cumbersome and bureaucratic, but it is still open in the event that it does arise. 41The thrust of the defendant's argument on the question of prejudice is that it cannot test the plaintiff's evidence as to causation of his condition. However that question has been conclusively determined by the AMS and the Medical Appeal Panel and is not open to be challenged unless something comes up which is currently unknown and would cast doubt upon the history given by the plaintiff. In other words, in the plaintiff's case it is not necessary to call evidence of before and after, as to how the plaintiff was before and after the event. The plaintiff's case cannot now be criticised because the plaintiff has elected not to do what it is unnecessary for him to do. 42Equally, the thrust of the submissions of the defendant ignore the fact that the defendant might be able to call the defendant himself, if he had any dealings with the plaintiff between 2001 and 2007, or the licensee of the hotel, Mr Geoff Jansen, or other employees at the Markets Hotel/Paddy's Brewery with whom the plaintiff worked between 2001 and 2007. The defendant has had since 7 April 2009, when the plaintiff gave notice of a claim for work injury damages and, antecedent to that, had been put on notice of the plaintiff's workers compensation claim by the claim form made on 2 October 2008, to obtain such evidence, and, clearly, the defendant investigated the matter by use of a private inquiry agent, Mr Bishop, to whom I referred as making a telephone call to the plaintiff's solicitor on 5 October 2008. I am not persuaded, therefore, on the balance of probabilities that the defendant has established that there is any actual prejudice to him as a result of the making by the plaintiff of his very late claim. 43Returning to the four points made by McHugh J which were adopted by Ipp JA in Itek Graphic Pty Ltd v Elliott , I make the following observations. Firstly there is no suggestion that any relevant evidence has been lost. There is of course a lack of evidence in that the plaintiff did not seek any medical treatment at all, on his own admission, between March 2001 and early 2006. However what does not exist cannot be lost. 44Secondly, the third observation of McHugh J is that it is desirable 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. No doubt that observation is made about all people in our community and such "people" include insurance companies. Here it is common ground that the defendant is insured. One of the significant differences between workers compensation insurance and other insurance is often the fact that conditions can arise very slowly over long periods of time and late claims for workers compensation are often made. The "incurred but not reported" provisions in workers compensation funds are particularly large. 45The final consideration raised by McHugh JA is that it is in the public interest that disputes be settled "as quickly as possible." The delay since the plaintiff became aware of his rights is wholly explicable by the procedures mandated by the current workers compensation legislation. There has been no long-running or longstanding dispute and if there were such a dispute, and a dispute could arise which was not justiciable in this Court but had to be agitated in the WCC, a tribunal, at least the bringing of the current proceedings will militate against there being any further disputes that might be agitated in the WCC. 46When I consider prejudice I must look at prejudice in another way as well. The fact that the plaintiff has delayed in bringing his action has caused him a loss. If he had commenced proceedings in 2001 seeking common law damages, his right to recover general damages would have been preserved. However, by dint of the workers compensation legislation and its transitional provisions, the plaintiff has lost his rights to recover any damages other than for past and future economic loss and also by dint of the same legislation has no entitlement to claim lump sum compensation under s 66 and 67 of the 1987 Act. The plaintiff himself has suffered prejudice but I am not persuaded that the defendant has suffered prejudice. 47Subject to the defendant's remaining argument I believe that it is fair and just that the plaintiff be entitled to bring the proceedings and therefore that leave ought be granted pursuant to s 151D(2). I will deal with the remaining argument after the morning tea/luncheon adjournment. MORRIS: Would your Honour excuse me for the balance of the day, your Honour? My instructing solicitor will be in Court to take the balance of your Honour's judgment. HIS HONOUR: Yes, certainly. MORRIS: Thank you. MATTER INTERPOSED LUNCHEON ADJOURNMENT 48HIS HONOUR: The defendant's remaining submissions depend upon the proper construction of ss 280A and 280B of the 1998 Act. In short form they are set out in a letter from Messrs Moray & Agnew to the plaintiff's solicitor dated 13 July 2010, which is part of Exhibit D-D. The short argument is this: "We are instructed to dispute liability on the ground that, given that the injury occurred on 5 March 2001 and that the alleged injury is in the nature of a primary psychological injury, there can be no entitlement to a lump sum because such entitlement for such an injury only applies to injury on and after 1 January 2002. We refer you to s 65A and s 66 of the Workers Compensation Act 1987. With respect of the purported claim for work injury damages, we repeat our previous advice that, absent any entitlement for lump sum and, therefore, the ability to duly make a claim for lump sums, the effect of s 280A of the Workplace Injury Management and Workers Compensation Act 1998 is that your client is not entitled to make a claim for work injury damages." Commencing at [26], Mr Morris in his written submissions said this: "[26] It does not appear to be an issue between the parties that the legislative changes in 2001 had the following relevant effects: The plaintiff is not entitled to lump sum compensation pursuant to ss 66 and 67 or any psychiatric impairment that he is found to have suffered. Flashbacks to the incident, when faced with any situation which involved danger or violence. If the plaintiff has any entitlement to damages based on negligence on the part of the defendant, those damages are limited to work injury damages. Although the plaintiff has no entitlement to lump sum compensation, s 280A mandates that a claim for lump sum compensation still be made. [27] The obligation to make a claim for lump sum compensation when no entitlement exists was confirmed by the Court of Appeal in Wattyl Australia Pty Ltd v McArthur [2008] NSWCA 326. In noting his agreement with the leading judgment of Young CJ in Eq, Grove J noted at [191]: 'The inhibitory words of s 280A do not operate only if the injured worker can be perceived to have a claim for lump sum compensation which will succeed. The provision requires the making of a claim, not the demonstration of an entitlement. If a claim for work injury damages is decided to be pursued in respect of an injury then it cannot be made unless a claim for lump sum compensation is made in respect of the injury before or at the same time. It is conceivable that a claim for lump sum compensation may ultimately fail, for example, by reason of a subsequent finding that the resulting impairment was not permanent, but the unambiguous words of the provision require the claim to be made. Its operation is not dependent upon the determining of the claim.' [28] The decision in Wattyl , however, focused on the need to make a claim, not the need to have an entitlement. Given the complexities of the legislative reform to the system for the compensation of injured workers, the Court of Appeal has approached [the] issue of interpretation on a case by case basis with the relevant focus being the matter in issue. As Basten JA noted in Strasburger Enterprises Pty Ltd v Serna [2008] NSWCA 354 at [12], given the different views expressed by members of the Court of Appeal concerning interpretation of the relevant provisions: 'It is appropriate to confine the consideration of the statutory scheme to those issues requiring determination for the disposal of these proceedings.' [29] In the event, there has been no determination of the issue of whether or not an entitlement to lump sum compensation is a prerequisite to the recovery of work injury damages." 49With none of what I have just quoted from Mr Morris is there any quibble. It is also accepted by Mr McManamey that the matter currently to be decided is res integra . The thrust of the defendant's submissions are contained in the next paragraph of Mr Morris's written submissions: " [30] It is submitted that the proper interpretation of the relevant legislative provisions is that an entitlement to lump sum compensation is a prerequisite to the recovery or work injury damages for the following reasons: T he obligation in s 280A is not qualified so as to allow for cases where no entitlement exists. There is no reason to require a claim for lump sum compensation where no entitlement exists. If the intent were to allow recovery of work injury damages where no such entitlement existed, the appropriate provision could easily have been made in the legislation. The introduction of legislation in 2001 has clearly led to arbitrary entitlements and retrospective disentitlements. Workers having rights at common law prior to 27 November 2001 in many cases lost those rights completely simply by the introduction of new thresholds. It would be perfectly consistent with such arbitrary and retrospective effect that persons suffering psychiatric injury before such injury gave rise to lump sum entitlements should find themselves precluded from the recovery of any damages [at] common law by reason of the legislative enactments. To conclude otherwise requires an assumption of legislative intent to mandate a requirement for a claim where no benefit can be obtained and where no purpose is otherwise served by the claim." 50It must be recalled that prior to 27 November 2001, an injured worker should pursue a common law action, although there were certain, what would now be thought to be minor, modifications to the awarding of damages. A worker was not, however, entitled to both lump sum compensation under ss 66 and 67 and to pursue an action for damages at common law. The recovery of lump sums under ss 66 and 67 was an election out of seeking common law damages. With effect from 27 November 2001, the common law action was severely modified and an injured worker can only now recover damages for past and future economic loss but not for any other head of damage. 51Furthermore, with effect from 1 January 2002, there is a new regime under ss 66 and 67. The "table of maims" was replaced with the assessment of WPI. Under the table of maims there was no provision for any lump sum for a pure psychiatric or psychological injury. There can be a WPI for a psychiatric or psychological injury but only for injuries from 1 January 2002. The new, or perhaps I should say newest, scheme for common law damages was that to reach the threshold to bring an action, a worker had to prove a WPI of at least fifteen per cent even though he could recover no general damages, that is, damages for pain and suffering and loss of amenity of life. 52The idea was that a worker recover under ss 66 and 67 and that, having recovered sufficient entitlement under ss 66 and 67 such that he had WPI of fifteen per cent, he could then, if he wished, pursue a common law action but recover only past and future economic loss. One of the many categories of injured worker who fell between these conflicting regimes was a worker in the position of the current plaintiff. The current plaintiff sustained a psychological injury on 5 March 2001. However, he made no claim either for a workers compensation lump sum or common law damages prior to either 27 November 2001 or 1 January 2002. 53No claim for workers compensation was made until, as I have earlier indicated, 2 October 2008, and his claim for work injury damages was first agitated by Mr Chipchase's letter of 7 April 2009. The plaintiff's claim therefore is characterised under the workers compensation legislation as a "new claim" and he can only pursue his common law rights as they have been modified by the 2001 legislation. It follows that he cannot recover any lump sum compensation for WPI and there was no entitlement under the former table of maims for lump sum compensation for a psychological injury. 54The question essentially for my determination is whether the provisions of s 280A and 280B require that he actually receive lump sum compensation equivalent to fifteen per cent WPI in order that he be able to bring his common law action. The sections are these: " 280A A claim for work injury damages in respect of an injury cannot be made unless a claim for lump sum compensation in respect of the injury is made before or at the same time as the claim for work injury damages. 280B (1) An injured worker cannot recover damages in respect of an injury from the employer liable to pay compensation under this Act in respect of the injury unless and until any permanent impairment compensation and pain and suffering compensation to which the worker is entitled in respect of the injury has been paid. (2) This section does not prevent a claim for damages from [sic] being made before any permanent impairment compensation and pain and suffering compensation to which the worker is entitled in respect of the injury has been paid. Note: This section ensures that an injured worker receives the compensation to which the worker is entitled before damages are recovered (because s 151A of the 1987 Act would prevent the payment of compensation after damages are recovered)." 55Section 280A was inserted by Act No 94 of 2001 and commenced on 1 January 2002. Section 280B was inserted by Act No 101 of 2010 and commenced on 1 February 2011, but it is common ground that it has retrospective effect. There was some debate between the Bench and the Bar as to what was the mischief that s 280B was intended to remedy. Was it perhaps the decision of the Court of Appeal in Wattyl Australia Pty Ltd v McArthur or was it some practice which had arisen amongst practitioners in the workers compensation field? There was no agreement between counsel on the issue nor was I taken by counsel to any extrinsic aid to statutory interpretation such as any explanatory note made at the time the relevant legislation was introduced nor the second reading speech in either House of Parliament. Perhaps the thinking behind the enactment of s 280B is matched by the unnecessary preposition which I pointed out in subs (2), that is, it was defective. Nevertheless, it is my view that the construction argued by the defendant is unsound. It is noteworthy that the second clause in s 280B(1) refers to " any permanent impairment compensation and pain and suffering compensation to which the worker is entitled". The word "any" does not have the same meaning as the definite article. The word "any" indicates that it was in the comprehension of Parliament that permanent impairment compensation might not be payable. 56In most cases, impairment compensation is payable if, for example, the injury is to an arm, a leg or a back and other body parts that were the subject of the table of maims and can be the subject of WPI. However, a psychiatric or psychological injury is not something covered by the former table of maims and it could occur before 1 January 2002 but cannot be the subject of WPI. In my view, the use of the adjective "any" indicates that it was in the purview of Parliament that such compensation might be recovered. Furthermore, the purpose of s 208B can be gleaned from the note inserted under it by Parliament. 57Clearly the note attempts to indicate that the lump sum compensation under ss 66 and 67 must be paid before work injury damages can be awarded so that the worker is not deprived of what it was said to be the equivalent of general damages at common law. The argument of the defendant essentially is that I should construe s 280B(1) as saying that an injured worker cannot recover damages in respect of an injury from the employer liable to pay compensation under the Act in respect of the injury unless and until he has been paid permanent impairment compensation for at least fifteen per cent WPI. The subsection does not say that, nor in my view should it be interpreted as such. Accordingly, in my view, the s 280B is not a bar to the recovery by the plaintiff of damages at common law modified, as they are, by the current workers compensation legislation. 58The only remaining issue concerns costs. Counsel have been good enough to agree that in the event that the plaintiff were successful that the appropriate order for costs is that the costs of the two motions be costs in the cause. For those reasons, I grant leave to the plaintiff to commence proceedings pursuant to s 151D(2) of the Workers Compensation Act 1987 by filing a statement of claim on 2 February 2011. The defendant's notice of motion filed on 20 April 2011 is dismissed. I order that the costs of each notice of motion be costs in the cause.

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Amendments 21 November 2012 - Amended title - surnames of plaintiff and defendant only 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: 21 November 2012