Scaltrito v NRMA Insurance Limited [2003] NSWCA 63

New South Wales Court of Appeal

CITATION : Scaltrito v NRMA Insurance Limited [2003] NSWCA 63 HEARING DATE(S) : 06/03/03 JUDGMENT DATE : 1 April 2003

JUDGMENT OF : Sheller JA at 1; Young CJ in Eq at 3; Grove J at 29 DECISION : Appeal dismissed.

CATCHWORDS : Workers Compensation- Limitations of actions- Leave to commence proceedings required- When to exercise the discretion- Onus of proof upon the worker- Must be fair and just to extend time- Explanation of delay required- Leave not to be granted if it will lead to prejudice which will prevent a fair trial- Must demonstrate viability of the cause of action- Workers Compensation Act 1987, s 151D. Workplace Injury Management and Workers Compensation Act 1998- Retrospective application of the Act- Changes to rights to obtain common law damages in certain situations- Futility of an action brought out of time, even where injury occurred before the commencement of the amendment- Workers Compensation Act 1987, ss 151G, 151H. (D) LEGISLATION CITED : Workers Compensation Act 1987, ss 151D, 151G, 151H Workplace Injury Management and Workers Compensation Act 1998 Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 Nominal Defendant v Manning (2000) 50 NSWLR 139 CASES CITED : Sydney Ports Corp v Collins [2003] NSWCA 28 Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1 Whisprun Pty Ltd v Sams [2002] NSWCA 394 PARTIES : Tony Scaltrito (Appellant) NRMA Insurance Limited (Respondent) FILE NUMBER(S) : CA 40480/01 COUNSEL : M R Aldridge SC and E E Welsh (Appellant) C R R Hoeben SC with W Austron (Respondent) SOLICITORS : The Norton Law Group, Lapaine Pomare & Forster (Appellant) Hicksons (Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT 428/01 FILE NUMBER(S) : LOWER COURT Gamble ADCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40480/01

SHELLER JA YOUNG CJ in EQ GROVE J

Tuesday 1 April 2003 SCALTRITO v NRMA INSURANCE LIMITED Judgment 1 SHELLER JA: I have had the benefit of reading the judgments in draft prepared by Young CJ in Eq and Grove J. I agree that the Judge at first instance may have overlooked that Dr Parmegiani was a treating doctor. But even so, for the reasons expressed by Grove J, I am satisfied it was open to the Judge not to accept what the doctor said. Accordingly for this reason, and those given by Young CJ in Eq, I would dismiss the appeal with costs. 2 I can see the force of what Young CJ in Eq has said about the futility point. I prefer, since it is unnecessary to express a view about it, not to express any view. 3 YOUNG CJ in EQ: The appellant, while working for the defendant as a storeman on 30 July 1995, lifted a large box and suffered back pain. The appellant complains that he had been working a lot of overtime, doing a lot of shifting and that the back pain came about because of an unsafe system of work. After this incident, the appellant was unable to perform his normal duties. He was put on alternative work for a year or so; however, his employment was terminated in March 1998. 4 The appellant first consulted a solicitor on 4 September 1997 for advice about his rights generally. However, he did not commence proceedings before 30 July 1998 being the date three years from the accident which, by virtue of s 151D of the Workers Compensation Act 1987, was the last day for taking action without leave of the Court. 5 On 19 January 2000, the appellant filed a notice of motion seeking leave to commence proceedings against the respondent, though out of time. That application was heard by Gamble ADCJ on 16 May 2001. Her Honour gave her decision dismissing the application on 6 June 2001. The appellant obtained leave to appeal her Honour's decision on 15 February 2002. 6 In her judgment her Honour referred to the leading authorities including Nominal Defendant v Manning (2000) 50 NSWLR 139, and then said: '"The onus of persuading the Court to exercise the discretion lies on the Applicant. To discharge that onus Mr Scaltrito must show that it is fair and just to extend time. He may do so by explaining the delay and demonstrating that the passage of time does not prejudice the Respondent so as to prevent a fair trial. He must also be able to demonstrate the viability of his cause of action, such that it will not be futile to grant the extension of time."

There was and indeed can be no complaint about this. 7 Her Honour then went on to list the key points raised by both Mr Scaltrito and the respondent. She then said: "The critical evidence in this application relates to this last matter, whether Mr Scaltrito's health was such between July 1995 – July 1998 that he could not instruct his legal advisers. In his affidavit Mr Scaltrito says 'as time went by and I was not getting any better, I began to feel depressed … as my symptoms seemed to become chronic, I felt helpless and hopeless about the future' (para 14). There is no precise time given in relation to these matters, but there is evidence that he did not seek medical assistance until late 1997 or early 1998, when he went first to his general practitioner Dr Arthur and then to Dr Parmegiani (para 15). No reports were tendered from Dr Arthur. Mr Scaltrito said Dr Arthur had retired and left his practice in about July 1998. The letter from Dr Parmegiani aside, the only evidence before the Court of Mr Scaltrito's state of health are the clinical notes from the Ramsey Street Medical Centre and the only relevant entries in those notes appear against the dates: 27/8/98: 'Tends to be very irritable. On Aropax 20 – as depressed he can't do usual activities – seeing a psychiatrist (Parmegiani) – down arrow) concentration'. 10/9/98: 'Usual job dispatch clerk NRMA. The (sic) tried to rehab to sales and service for 10/12 – found this quite stressful'. I am not satisfied on the balance of probabilities that Mr Scaltrito was unable to instruct his solicitors in the conduct of this litigation before July 1998. I am not satisfied on the limited medical evidence available. I find the report of Dr Parmegiani self serving and unsupported by evidence from Mr Scaltrito's treating doctors. Mr Scaltrito has therefore failed to discharge the onus of proof on him to satisfy me that it is fair and just for the time in which he might commence proceedings to be extended." 8 Mr Aldridge SC, who appeared for the appellant with Miss E Welsh, said that her Honour erred in over-emphasising the element of the need to explain the delay and did not fairly balance all the other factors which she needed to consider in order to find whether or not it was fair and just to extend time. Mr Aldridge says her Honour should not only have considered whether the appellant was unable to instruct solicitors, but she should also have considered what now appears to be the appellant's main point, that it was extremely difficult for him to do so. 9 I should note in passing that Mr Hoeben SC, who appeared for the respondent with Mr Austron, put that if that were the case, mere difficulty in obtaining instructions within the limitation period is rarely, if ever a matter which by itself would justify extension of the period. Mr Hoeben also made the point that even if there were difficulties in getting instructions, the material before the Judge showed that these had disappeared by October 1998, or at least by March 1999, and there was no explanation of delay after that. 10 However, Mr Aldridge persisted with his submissions, and indeed, took us through a considerable amount of the material before her Honour to show that this was the case that was being presented. 11 Although her Honour did focus on the factor of delay and the excuse proffered, that is, that there was inability to instruct solicitors or difficulty in communication with legal advisers as a result of depression, she did in fact consider more matters than these. The rehearsal of the proper test and the setting out of the opposing cases makes it difficult to accept that her Honour did not only consider delay, but she also considered the other matters which she listed. 12 Her Honour rejected the view that the appellant, as a result of depression, let the limitation period go by because the solicitors were unable to obtain sufficient instructions. 13 Mr Aldridge realised that the view that the appellant had not satisfied her Honour that his depression brought about the delay, was within her Honour's right to find. However, he says that the finding that because of this matter alone it was not fair and just to extend the time is inappropriate because her Honour did not evaluate the evidence as a whole. 14 On this point Mr Hoeben SC refers to what Ipp JA said in the leading case of Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207, 224 [88] that whilst the justice of each case is to be determined by its own individual circumstances and a failure to satisfactorily explain the delay will not be decisive, "[n]evertheless, the justice of the case may be such that the failure to explain the delay and to prosecute the case with the requisite diligence will result in an extension of time being refused." 15 Mr Aldridge says that her Honour did not evaluate the solicitor, Mr Pomare's evidence, her Honour did not consider the strength of the plaintiff's case and that there was very little evidence of actual prejudice to the defendant. He says her Honour did not evaluate the cross-examination of the plaintiff, and indeed he puts it is really difficult to ascertain just what her Honour did find. 16 With respect, one might have wished that her Honour had delivered a more expansive judgment. However, what she did say gives me the firm impression that she considered the relevant factors which she listed and exercised her judgment properly. 17 Accordingly, I would not be inclined to upset her Honour's judgment. 18 However, there is one other matter to consider. It is clear that no statement of claim has ever been filed by the appellant, even up to today. What happened before her Honour is that a proposed statement of claim was handed up to her, tendered and marked as an exhibit, but no document was ever filed. 19 In Whisprun Pty Ltd v Sams [2002] NSWCA 394, this Court held that it was appropriate for a statement of claim to be filed even before leave was given and if leave was later given under s 151D of the Workers Compensation Act, leave could formally be given to file the document nunc pro tunc. This could have happened, but did not. 20 Mr Hoeben puts that the Workplace Injury Management and Workers Compensation Act 1998, made radical changes to the rights of people in the appellant's situation to obtain common law damages. Essentially, unless a statement of claim was filed before the cut-off date of 27 November 2001, the appellant would be bound by the regime that currently applies, the practical effect of which is that even if this appeal is allowed, the appellant would receive no damages. 21 I am dealing with this point at the end of the judgment because it only surfaced on the evening before the hearing; there was not sufficient time for appellant's counsel to evaluate it so that the appeal was argued with leave to both counsel to supplement their submissions in writing, which they duly did. It was thus more economic to deal with the appeal on its merits and then consider this point, than the other way around. 22 In their supplementary submissions, Mr Hoeben SC and Mr Austron set out in detail the provisions which had the effect of denying common law damages in cases where no statement of claim was filed before 27 November 2001. 23 The submissions made by Mr Aldridge SC and Miss Welsh do not cavil with that analysis. However, they submit that the appellant had a vested right to damages at common law and a right (or at least a privilege) to have his appeal determined according to law. 24 The right to have this appeal considered may well have survived, but that does not assist the appellant as we have dismissed the appeal on its merits. 25 Appellant's counsel pray in aid the decision of the Full Court of the Supreme Court of Western Australia in Toolan v Metropolitan (Perth) Passenger Transport Trust (2001) 25 WAR 1. 26 Whilst, at first sight, Toolan's case might appear to be a decision on comparable legislation, this is not really so. The NSW legislation clearly indicates a contrary intention to the normal rule to the operation of statutes and has retrospective effect in some cases to abrogate rights existing as at 27 November 2001; cf Sydney Ports Corp v Collins [2003] NSWCA 28 [18]. 27 Thus, despite the submissions of Mr Aldridge in reply, there seems to be no answer to the point. This Court will simply dismiss an appeal where it would be completely futile to entertain it. 28 Accordingly, whichever way one looks at this matter, the only order that should be made is that the appeal should be dismissed with costs. 29 GROVE J: I have had the opportunity of reading the judgment of Young CJ in Eq in draft form. I wish to advert to two aspects of the appeal. 30 First, the appellant pointed to the reasons of Gamble ADCJ where her Honour stated: "I find the report of Dr Parmegiani self serving and unsupported by evidence from Mr Scaltrito's treating doctors"

and contended that there was factual error because the evidence was that Dr Parmegiani was such a treating doctor. I would accept that mis-statement of fact is demonstrated but the critical consideration is whether that has tainted her Honour's conclusion about the asserted inhibition on the appellant's capacity to instruct solicitors. In my opinion, it has not. 31 Dr Parmegiani was not called for cross examination. A report dated 18 March 1999 addressed to the appellant's solicitors was tendered and its content states that it is based on clinical observations over the preceding twelve months. It noted that care was continuing. The report contains a history including details of incidents of work and the development of back pain. The report contained no hint about any difficulty encountered by the doctor in deriving information from or communicating with the appellant. 32 However, on 12 May 1999 the solicitors wrote to Dr Parmegiani making, inter alia, these observations: "Unfortunately, actions in common law negligence must be commenced within three years from the date of the incident which effectively means that any such case ought to have been commenced by June 1998. In order for Mr Scaltrito to pursue any common law rights to compensation, as distinct from worker's compensation entitlements, it will be necessary for him to seek leave from the Court extending the statutory period of limitation. To achieve this result it will be necessary to explain the reason for the delay in Mr Scaltrito taking such action. ………………….. …. we found Mr Scaltrito to be relatively vague and uncommunicative when it came to the taking of instructions …… We would be grateful to receive your report giving such support as you may, confirming that Mr Scaltrito's psychiatric condition is one which would have interfered with his appreciating legal advice and giving full and meaningful instructions. If possible, your support should extend to a statement to the effect that his emotional impairment and in particular, his difficulty in thinking with poor concentration, poor memory and undecisiveness (sic) resulted in being unable to act decisively and to give proper instructions. " 33 This was responded to by a letter dated 17 May 1999 when Dr Parmegiani wrote: "His psychiatric symptoms made it difficult for him to think clearly, and understand the complexities of legal proceedings. I understand from your letter that Mr Scaltrito was unable to provide clear instructions until recently. This was consistent with symptoms of depression. His mental state has now improved after receiving anti depressant treatment. He is still not 100 percent and the dose of his medication was increased today. I understand Mr Scaltrito failed to commence common law proceedings within three years of his incident, and in my opinion, his depression played a significant role in delaying the process." 34 The package of information supplied by the solicitors which attracted the statement of opinion from Dr Parmegiani and the absence of reference to anything of like nature in his early report left it quite open to her Honour to decline to rely upon what could be assessed as a promoted opinion. It might be observed that in the earlier report a mental state examination was said to have been conducted on 11 February 1999 and the report included "he was punctual for the appointment and cooperative with the interview process . His speech was low in volume but normal in rate. His thinking was coherent , and he did not express bizarre or unusual ideas." (Emphasis added) 35 In addition to the foregoing, I agree that the grounds advanced by the appellant in support of the appeal fail for the reasons given by Young CJ in Eq. 36 The second matter relates to the submission of futility raised by the respondent. As Young CJ in Eq has pointed out, the appellant does not cavil with the analysis of statutory changes which has been presented in the written submission of the respondent. I agree with his Honour's conclusions as to the retrospective effect plainly intended and achieved by Parliament in applying the amendments even if the injury concerned was received before the commencement of the amendment. 37 The submission of futility was presented in these terms: "The provisions of that new regime are so restrictive that, even placing the appellant's case at its very highest, he would not satisfy the thresholds and procedural provisions required by the new regime." 38 To this the appellant responded: "Alternatively even if the new worker's compensation regime, set out in the respondent's submission applies, it is impossible for this Court to say that compliance with them by the appellant is impossible. There is no evidence to that effect at all." 39 The "new regime" limits damages recoverability to "past economic loss due to loss of earnings" and "future economic loss due to the deprivation of impairment of earning capacity" s151G. 40 Section 151H precludes damages at all unless there is a degree of permanent impairment of at least 15 percent and the provision imposes strict conditions for separating physical and psychological injury and excluding from assessment of the latter psychological injury which is secondary to physical injury. There is no present need to recite the precise mechanics of the section. 41 The evidence before her Honour strongly suggests the correctness of the respondent's submission but there was no evidence of assessment of impairment pursuant to s151H(4). I do not consider that this Court can itself make an assessment of impairment (if any) and conclude that the appellant could not pass the threshold required by the statute, given the specific requirements of that provision. 42 I would therefore dismiss the appeal on the merits for the reasons given by Young CJ in Eq but express no view on the outcome of the "futility" argument. I agree with the orders which he proposes.

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