Abdulbaki v South Western Sydney Area Health Service

[1999] NSWSC 911

CITATION:	Abdulbaki v South Western Sydney Area Health Service [1999] NSWSC 911
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	11991/1998
HEARING DATE(S):	26 August 1999
JUDGMENT DATE:	9 September 1999
PARTIES :	Nora Abdulbaki (Plaintiff) v South Western Sydney Area Health Service (Defendant)
JUDGMENT OF:	Master Malpass

COUNSEL :	Mr P W Neil SC/Mr R Taylor (Plaintiff) Mr M J Jenkins (Defendant)
SOLICITORS:	G H Healey & Co (Plaintiff) William K Chambers - G I O Australia Ltd (Defendant)
CATCHWORDS:	Leave to commence proceedings; discretionary power; no question of principle.
ACTS CITED:	Workers Compensation Act 1987, S 151D (2).
CASES CITED:	N/A
DECISION:	See paragraphs 22-24.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

THURSDAY 9 SEPTEMBER 1999

11991/1998 NORA ABDULBAKI v SOUTH WESTERN SYDNEY AREA HEALTH SERVICE

JUDGMENT


1 These proceedings were commenced by Summons filed on 17 August 1998. The plaintiff seeks inter alia relief under s 151D (2) of the Workers Compensation Act 1987 (the Act).

2   The hearing took place on 26 August 1999. In support of the application, the plaintiff relied on affidavits sworn by both herself and her solicitors. She was cross-examined. She tendered documentary material. The defendant did not adduce any evidence.

3   In 1987, the plaintiff commenced employment at Lidcombe Hospital as a catering assistant (in the kitchen area). Whilst carrying out her work duties she suffered injury on 30 October 1994. She slipped on a wet floor and sustained injuries (inter alia to her neck, lower back, right shoulder and right arm). Subsequently, she also suffered from referred pain in the right arm and the right leg. Material relating to her medical condition (including a number of reports) may be found in the affidavits. For the purposes of this judgment, it is not necessary to recount the detail of that material.

4   She has said that she fell in an area adjacent to the washing up area in the kitchen. She has said that there was quite a bit of water and soap on the floor. She has also said that a rubber mat had been removed from the floor area and had not been replaced at the time of the incident.

5   On or about 1 November 1994, an Accident/Incident Reporting Form was completed and a claim for compensation was made to the insurer of the employer. Initially, she had some time off from work. Attempts were made to return to work on light duties. She was paid worker’s compensation benefits. She ceased work altogether in April or May 1995. She has not worked since that date. Her employment has been terminated. She continues to receive worker’s compensation payments. As at October 1998, the total gross compensation payments were $133,779.

6   She initially saw her solicitor on or about 1 May 1995. In one of her affidavits, she deposes to the following:-
“I was advised by my solicitor that when my condition stabilised and doctors were able to assess levels of permanent disability and impairment and loss of use, I may be entitled to claim benefits under the Workers Compensation Act pursuant to Section 66 and Section 67. I was also advised that the circumstances of my accident may have involved negligence on the part of my employer but that no decision could be made with regard or to whether or not to commence proceedings until my condition had stabilised and whether or not I decided to have further operative treatment in the near future.”

Subsequently, there have been further attendances upon the solicitor (including on 20 October 1997).


7 The relevant limitation period expired on 30 October 1997. The plaintiff seeks leave to commence proceedings in this Court. Section 151D (2) confers a discretionary power to grant such leave. The discretionary power is exercised having regard to the relevant circumstances of the particular case and so that justice is best served between the parties. The plaintiff bears the onus of satisfying the court of an entitlement to relief.

8   Broadly speaking, three discretionary considerations have been agitated. These may be identified as delay, explanation for delay, and prejudice.

9   The work incident took place almost five years ago. It is not said by the plaintiff that she was unaware of the limitation period. It would seem that it was simply allowed to expire. At the time of its expiration, her solicitors had been acting for more than two years.

10   In substance, the explanation is that a decision on the question of whether or not common law proceedings for damages should be commenced was deferred until her condition had stabilised. The evidence throws up some uncertainty as to when it is said that her condition had stabilised. There is evidence which suggests that this may not have been until about late 1997 or early 1998. There is little in the other material to corroborate that evidence. What it was that triggered the bringing of these proceedings is left somewhat unclear.

11   The proceedings were not commenced until 17 August 1998. They did not come on for hearing until 26 August 1999. Largely, the inactivity since late 1997 or early 1998 is really left unexplained. The material offered to explain delay falls short of being satisfactory.

12   The court has been left with the impression that the prosecution of the application for leave has been somewhat casual. A special fixture was given on 16 June 1999. Although the court was then told that the proceedings were ready for hearing, this does not really seem to have been the case. A Subpoena for Production of Documents had been served upon the NSW Treasury Managed Fund on 3 December 1998. It appears that there had been a lack of action in pursuing the production of those documents until the matter was raised during the hearing of this case (when a call was made on the subpoena).

13   After the completion of the evidence and the making of the defendant’s submissions, application was made on behalf of the plaintiff for leave to re-open. The purpose of the application was inter alia to enable the tender of two witness statements. Both statements were referred to in the affidavit evidence and objection was successfully taken in relation to comment on their content. Following that evidentiary ruling, a tactical decision was taken not to tender the statements. The application for leave to re-open for this purpose was refused.

14   There is authority for the proposition that leave is not usually given in such circumstances. If leave had been given, it may have lead to further delay and other prejudice.

15   The defendant contends that there is both actual and general prejudice. It is said that it lies both in the areas of liability and quantum. In respect of liability, it is said that she has belatedly raised matters such as the presence of water and soap upon the floor which may have inter alia come from the adjacent kitchen area and the removal of a rubber mat from the floor area prior to the accident. There was reference to the witness statements (which at that time the plaintiff had not sought to put into evidence). In respect of quantum, it is said that there has been a belated raising of symptomatology to the right wrist and head.

16   The defendant has had the opportunity to investigate the accident. It can be expected that at least some investigation has taken place. The defendant continues to pay compensation. There is material (adduced on the plaintiff’s behalf) that a supervisor was at the scene of the incident shortly after it took place. The defendant has not adduced any evidence of prejudice. The plaintiff’s evidence suggests that there were a number of witnesses. Two witnesses have given statements to the plaintiff’s solicitors. The plaintiff has offered to make these statements available if leave is given. There is evidence that both of these witnesses are available to give evidence. There is no evidence of unavailability of relevant witnesses. There is no evidence of loss of relevant records.

17   The defendant has had the opportunity to have the plaintiff medically examined by its own experts. There is material which indicates that there has been some exercise of that opportunity. There is material which suggests that the defendant may have been given a copy of at least some of the reports prepared by her own experts.

18   I should perhaps make one specific reference to the question concerning the right wrist. The material suggests that the defendant would have been aware of this problem by 1995. Surgery had been recommended by Dr Bokor and liability for that surgery was refused by the insurer.

19   I have given weight to the matters of the delay and the deficiencies in the material offered to explain that delay. Whilst there may be general prejudice, I am not satisfied that there is actual prejudice in any real sense. If liability is established, the plaintiff’s claim may be productive of substantial damages.

20   In the relevant circumstances of this case, I have ultimately reached the view (after some considerable deliberation) that justice is best served between the parties if leave is given.

21   I do have some reservations as to this Court being the appropriate jurisdiction for the commencement of the proceedings. However, as this has not been raised as an issue during the hearing, I put it aside for present purposes.

22   I grant leave to the plaintiff to commence proceedings in this Court. The proceedings are to be commenced by Statement of Claim filed on or before 23 September 1999.

23   The plaintiff is seeking an indulgence. In the circumstances of this case, it was reasonable for the defendant to defend the Summons. Accordingly, I order the plaintiff to pay the costs of the Summons.

24   The exhibits may be returned.
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Last Modified: 09/10/1999