Creighton v Coal & Allied Mining Services Pty Ltd [2016] NSWDC 356

District Court New South Wales

Medium Neutral Citation: Creighton v Coal & Allied Mining Services Pty Ltd [2016] NSWDC 356 Hearing dates: 7 December 2016 Date of orders: 07 December 2016 Decision date: 15 December 2016 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Pursuant s 151D Workers Compensation Act 1987 (NSW), make orders in accordance with paragraph 1 of the Summons filed 21 October 2016 extending time for commencement of proceedings by the plaintiff against the defendant to 19 December 2016. (2) Grant leave to the plaintiff to file the Statement of Claim in these proceedings (2016/319889) and in those circumstances request the Registry to dispense with a further filing fee. (3) Costs of the Summons to be costs in the cause. (4) List the matter for directions before the Registrar on Thursday 19 January 2017. Catchwords: WORKERS COMPENSATION – s 151D Workers Compensation Act 1987 (NSW) – leave to commence proceedings more than three years after injury – adequacy of explanation for delay – extension of time granted Legislation Cited: Workers Compensation Act 1987 (NSW), ss 149, 151D, 151G, 151H and 151T Workers Compensation Legislation Further Amendment Act 2001 (NSW), Schedule 6 Cases Cited: Hornby v Nominal Defendant [2007] NSWCA 222 Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 Salido v Nominal Defendant (1993) 32 NSWLR 524 Strasburger Enterprises Pty Ltd (t/as Quix Food Stores) v Serna [2008] NSWCA 354 Category: Procedural and other rulings Parties: Plaintiff: William Alexander Creighton Defendant: Coal & Allied Mining Services Pty Ltd Representation: Counsel: Plaintiff: Mr D R Benson Defendant: Mr P Warnes (solicitor)

Solicitors: Plaintiff: Slater & Gordon Defendant: Moray & Agnew File Number(s): 2016/319889 Publication restriction: None

Judgment

The application before the court 1. The plaintiff, by Summons filed on 26 October 2016, seeks an extension of time to commence proceedings against the defendant under s 151D Workers Compensation Act 1987 (NSW) ("the Act"). 2. The statement of claim which the plaintiff seeks to rely upon in these proceedings is annexure "A" to the affidavit of the plaintiff sworn on 21 October 2016. The plaintiff relies upon the contents of his own affidavit and that of his solicitor, Mr Barnett. 3. The plaintiff was a "coalminer" (a "worker employed in or about a mine": Sch 6, Part 18, cl 1 and 3 of the Act). This means that the plaintiff's right to bring a common law claim in negligence against the defendant is governed by Part 5 of the Act ("Common Law Remedies"), as read prior to the enactment of the Workers Compensation Legislation Further Amendment Act 2001 (NSW): Sch 6, Part 18, cl 1 and 3. The relevant provisions (as preserved) are ss 149 and 151T. 4. The defendant neither consented to, nor opposed, the grant of leave, and has not filed any evidence, or made submissions beyond noting the principles relevant to presumptive prejudice. 5. I have made orders in accordance with the relief sought in the Summons, and provide these brief reasons for so doing.

The factual background 1. The plaintiff was a long-term employee of the defendant, having commenced employment there on or about 6 November 2001. Over this period the plaintiff undertook duties as a plant operator, trainer and assessor and occasionally a step-up supervisor. Prior to the accident in question (which occurred on 13 July 2012), he had not sustained any injuries which left him with any permanent disabilities in the course of his work with the defendant or his prior employers in the coal industry. 2. The circumstances of the plaintiff's accident are comprehensively documented in the Incident Investigation Report which is annexure "B" to the plaintiff's affidavit. Following that accident, the plaintiff underwent rehabilitation and returned to work, managing to perform his duties but with occasional aggravation and recurrence. Unfortunately, on 30 May 2015, he aggravated his condition, in the circumstances set out in his letter of 2 October 2015. 3. The plaintiff managed to remain at work until 12 October 2015 when he could no longer continue work because of his right shoulder problems. His condition significantly worsened as he began to have problems with his right hand. He was advised on 20 October 2015 that he would require a total right shoulder replacement although, given his age, the doctors advised against surgery until he was older. In the meantime, his doctors advised that alternate employment was necessary. 4. The plaintiff did not seek legal advice about his injury prior to 23 October 2015, when he was informed for the first time that he was "out of time" in relation to any common law claim. He was also told that, while he had reasonable prospects of success in relation to the issue of liability, further investigations were necessary in relation to the issues of causation and incapacity because of the nature of claims brought by coalminers (which involves an election in relation to any common law claim). 5. The plaintiff was examined on 19 June 2016 by Professor Ghabrial, who provided the necessary report. When this became available, the plaintiff consulted his solicitors on 19 August 2016 and instructed them to bring these proceedings, which they did with great promptness. 6. The plaintiff sets out in his affidavit, and I accept, that if his injury of 13 July 2012 had taken him out of the work force prior to the expiry of the limitation period, he would have immediately taken steps to commence these proceedings. 7. The plaintiff also had other concerns during 2014 and 2015, in that he was involved in giving evidence at the Royal Commission into Institutional Responses to Child Sex Abuse.

The legislation and the principles of law to be applied 1. The relevant provisions of 151D are as follows: "151D Time Limit for Commencement of Court Proceedings against Employer for Damages. (1) (Repealed) (2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concern against the employer liable to pay that compensation more than three years after the date on which the injury was received, except with leave of the court in which the proceedings are to be taken. (3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies." 1. The plaintiff bears the onus of proving that it is fair and just for a limitation period to be extended and the defendant bears the evidentiary onus of proving actual prejudice beyond that presumed to occur by reason of effluxion of time. 2. The general principles applying to applications of this kind have recently been reviewed by McColl JA in Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 at [43]-[52], where her Honour notes that s 151D(2) does not spell out specific criteria, but confers a broad discretion (at [44]-[45]). 3. As to the exercise of discretion, Mr Benson relies generally on the principles of law as set out in Salido v Nominal Defendant (1993) 32 NSWLR 524. The nature of that discretion was more recently explained, with reference to this decision in particular, by Basten JA in Strasburger Enterprises Pty Ltd (t/as Quix Food Stores) v Serna [2008] NSWCA 354 as follows: "With respect to this and similar provisions, which contain no express indication of the matters to be considered in relation to an application to extend time, "the limits of the discretion are to be found in the subject matter, and the scope and purpose of the statute": Salido v Nominal Defendant (1993) 32 NSWLR 524 at 430F (Gleeson CJ); see also [535–539] Kirby P and [541] Powell JA. Subsequently, the High Court provided guidance as to the correct approach in Brisbane South Regional Health Authority v Taylor(1996) 186 CLR 541, although the majority judgments did not speak in identical language and were concerned with the limitation provision which provided some guidance as to factors to be taken into account. As explained in Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 at [96] by McColl JA: "Brisbane South is authority for the proposition that an application for an extension of time under limitation legislation should be refused if the effect of granting of the extension would result in significant prejudice to the potential defendant … "Significant prejudice means such prejudice as would make chances of a fair trial unlikely … For a trial to be fair, it need not be perfect or ideal …""" 1. McColl JA went on to note in Howley v Principal Healthcare Finance Pty Ltd at [50]: "It should be borne in mind, as Whealy JA (Hodgson and McColl JJA agreeing) explained in Nominal Defendant v Harris [2011] NSWCA 70; (2011) 57 MVR 492 (at [45]), that Ipp JA's comments "were intended to provide useful and cautionary guidance as to the way a court exercising a broad statutory discretion to extend a limitation period will ordinarily respond [but] do not ... supplant the language of the statute [nor] ... override the broad discretionary exercise entrusted to a court to take into account all the relevant circumstances in determining what is fair and just."" 1. This is a very clear case of a diligent worker continuing to work on despite his injury and being unaware, not only of his common law rights, but of the limitation period. 2. The material before me confirms that there is an arguable case and that the plaintiff has suffered serious injury (ss 151G and 151H of the Act). I also note that he has taken steps to mitigate his loss and that he took timely and reasonable steps to seek legal advice.

The issue of presumptive prejudice 1. As to presumptive prejudice that arises by reason of delay, the defendant relied on the generally accepted principles, which I note have been summarised by Tobias JA in Hornby v Nominal Defendant [2007] NSWCA 222 at [58]: "The principles relevant to the power of a Court to make an order extending time if it thinks such an order is just and reasonable in all the circumstances were articulated in Smith at [122]–[129] by Santow JA, with the agreement Handley and Basten JJA the latter differing from the majority as to their application to the facts of the case. They can be summarised in the following propositions: (a) Since the purpose of limitation periods is to preclude stale claims which a Defendant would find difficult to defend given the effluxion of time, it is prima facie prejudicial to a Defendant to allow the commencement of an action outside that period. This is because the Defendant suffers presumptive prejudice where an extension of the limitation period is granted. (b) Although it is a truism that where there is delay the whole quality of justice deteriorates and that such deterioration may in some cases be palpable such as where a crucial witness is dead or an important document has been destroyed, in other cases that deterioration in quality is not recognisable even by the parties. As the United States Supreme Court pointed out in Barker v Wingo (1972) 407 US 514 at 532, cited by McHugh J in Taylor at 551: "What has been forgotten can rarely be shown". (c) Nevertheless, presumptive prejudice of itself may not disentitle the Plaintiff to the leave sought. Although it may be irrelevant that an order extending time would not put the Defendant in any worse off position than it would have been if the action had been commenced within, but towards the end of, the limitation period (Taylor at 554), once the potential liability of the Defendant has ended then its capacity to obtain a fair trial, if an extension of time were granted, is relevant and important. To subject the Defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the Plaintiff of the right to reinstate the lost action. This will often be the case where the Plaintiff is without fault and no actual prejudice to the Defendant is readily apparent. The position is different where a Defendant, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact: Taylor at 555. (d) Where actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the Defendant has proved the fact or the real possibility of significant prejudice: Taylor at 555. (e) "Significant prejudice" means such prejudice as would make the chances of a fair trial unlikely. However, for a trial to be fair, it need not be perfect or ideal." 1. The plaintiff is out of time only by a short period, in circumstances where the details of his accident were known to the defendant from the first, and the subject of a thorough investigation. There is no claim of actual prejudice and, I am satisfied, on the facts in this case, that any presumptive prejudice would be of the slightest nature. I am satisfied that a fair trial of the proceedings can take place.

Concluding remarks 1. This is a clear case where the granting of leave under s 151D is warranted. 2. The parties have agreed on the appropriate costs order for the application. 3. To save time, paperwork and (if possible) filing fees, I have directed that the statement of claim be filed in the same file as the summons.

Orders 1. Pursuant s 151D Workers Compensation Act 1987 (NSW), make orders in accordance with paragraph 1 of the Summons filed 21 October 2016 extending time for commencement of proceedings by the plaintiff against the defendant to 19 December 2016. 2. Grant leave to the plaintiff to file the Statement of Claim in these proceedings (2016/319889) and in those circumstances request the Registry to dispense with a further filing fee. 3. Costs of the Summons to be costs in the cause. 4. List the matter for directions before the Registrar on Thursday 19 January 2017.

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