Allan v Manning Valley Race Club Limited ACN 00329548

[2023] NSWDC 89

District Court

New South Wales

Medium Neutral Citation:

Allan v Manning Valley Race Club Limited ACN 00329548 [2023] NSWDC 89

Hearing dates:

23 March 2023

Date of orders:

14 April 2023

Decision date:

14 April 2023

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

(1) Pursuant to s 151D of the Workers Compensation Act 1987 (NSW), the plaintiff is granted leave nunc pro tunc to commence these proceedings.

(2)   The plaintiff to pay the defendant’s costs of the notice of motion and hearing of this application.

Catchwords:

LIMITATION OF ACTIONS – application by plaintiff pursuant to s 151D of the Workers Compensation Act 1987 (NSW) – claims of actual and presumptive prejudice made by defendant – no issue of principle

Legislation Cited:

Workers Compensation Act 1987 (NSW), s 151D

Workplace Injury and Management and Workers Compensation Act 1998 (NSW), ss 281, 282, Clause 9(1)(c) of Schedule 1

Cases Cited:

Chaffey v MPM Maintenance Services Pty Ltd & Anor [2019] NSWDC 260

Commonwealth of Australia v Shaw (2006) 66 NSWLR 325

Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250

Ebb v Fast Fix Steel Fixing Pty Ltd [2007] NSWCA 236

Franco v Workers Compensation Nominal Insurer [2020] NSWSC 915

Gower v State of New South Wales [2018] NSWCA 132

Hibbs v Ready Workforce Australia Pty Ltd [2022] NSWDC 427

Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447

Itek Graphix Pty Limited v Elliott [2002] NSWCA 104

OP Industries Pty Ltd v MMI Workers Compensation (NSW) Ltd (1998) 17 NSWCCR 193

Paikan v Western Sydney Local Health District [2020] NSWDC 252

Young v Reece Australia Pty Limited [2018] NSWDC 465

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Shane Allan (plaintiff/applicant)
Manning Valley Race Club Limited ACN 00329548 (Formerly Taree Race Club) (defendant/respondent)

Representation:

Counsel:
Mr E Romaniuk SC with Mr P Menary (plaintiff/applicant)
Mr D Baran (defendant/respondent)

Solicitors:
LHD Lawyers (plaintiff/applicant)
Bartier Perry (defendant/respondent)

File Number(s):

2022/00023754

Publication restriction:

Nil

Judgment

The plaintiff’s application to the court

1. The plaintiff commenced proceedings for damages for negligence on 27 January 2022. The plaintiff, who had sued the wrong defendant, amended to change the name of the defendant from Racing NSW to Manning Valley Race Club Limited, and to add a paragraph in relation to “deemed employment” by operation of Clause 9(1)(c) of Schedule 1 to the Workplace Injury and Management and Workers Compensation Act 1998 (NSW).

2. The plaintiff, by Notice of Motion filed on 1 April 2022, brought an application for extension of time to commence proceedings, seeking the following orders:

1. An order nunc pro tunc that the plaintiff have leave to commence proceedings pursuant to s 151D of the Workers Compensation Act 1987 (NSW) (“the Act”).

2. Such further orders as the court thinks fit.

3. The defendant opposes the application on the following bases:

1. Actual and presumed prejudice arise from the length of time between the date of the injury (16 November 2004) and the commencement of these proceedings on 17 July 2018 (being the date of service of the required notice under ss 281 and 282 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the WIM Act”)).

2. The explanations proffered for the delay are neither sufficient nor acceptable.

3. The plaintiff did not give earlier notice of his claim although he could and should have done so: Gower v State of New South Wales [2018] NSWCA 132 per White JA.

4. The plaintiff’s claim is a weak one. This includes not only the difficulties as to whether the correct defendant has been sued, but also the very late claim that the barrier attendant was using a mobile phone instead of attending to his duties.

The relevant period of delay

4. The plaintiff has prepared a summary of the relevant time periods demonstrating that the claim is out of time by 666 weeks, when calculated from the date of the accident. The three-year limitation period expired on 18 January 2008.

The relevant principles

5. The relevant principles are set out by McColl JA in Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 at [43] – [52].

6. In Gower v State of New South Wales at [4], Basten JA stated:

“To obtain leave to commence proceedings out of time, the appellant needed to establish three propositions, namely that:

(a) there was a sufficient and acceptable explanation for each period of delay;

(b) he had a reasonably arguable claim of negligence against the State, and

(c) the conduct of a trial more than 12 years after the injury was suffered would not cause the State significant prejudice, so as to render the trial unfair.”

7. The exercise of the discretion to extend time involves taking a practical approach to the question of whether a fair trial can still be had, and I am particularly mindful of the critical observations of Simpson AJA in Gower v State of New South Wales. I am also conscious of the need for caution in circumstances where (unlike Gower v State of New South Wales), the plaintiff has provided a frank and careful account of what occurred in the form of an affidavit on which he has not been cross-examined.

8. Mr Baran submits that there are other discretionary principles to take into account, such as those identified in Itek Graphix Pty Limited v Elliott [2002] NSWCA 104. However, the plaintiff would not have been able to bring a claim within the relevant limitation period in any event because there was no evidence that his injuries were over the threshold until well after the limitation period had expired. As is set out below, I accept the plaintiff’s evidence (upon which he was not cross-examined) that he did not know about the limitation period for many years after it had expired.

The evidence

9. The plaintiff relies upon the following affidavits:

1. The plaintiff’s affidavit sworn 20 February 2023.

2. The plaintiff’s solicitor’s affidavit sworn on 16 February 2023.

10. The defendant relies upon the affidavit of Stephen Marsh sworn on 31 January 2023.

11. None of the witnesses was required for cross-examination.

The facts of the case

12. The plaintiff was an experienced horse rider. He had left school in Year 9 and worked riding horses and performing other activities at racetracks until 1987, returning to riding horses in about 1997. He commenced riding track work shortly thereafter and continued to ride for stables owned by a Mr Stitt until his accident on 16 November 2004.

13. The accident occurred when Doutelle, a racehorse in the barrier box to practice “jump out” race starts, became agitated and reared up, with the result that the plaintiff, who was seated on the horse, suffered injury in the face. An ambulance was called and the plaintiff was taken directly from the track to hospital where he underwent facial reconstruction. He also complained of pain in the neck and was referred to a specialist rheumatologist. An orthopaedic surgeon who examined him at this time said that, given the injuries he had suffered, he should never ride again.

14. The plaintiff’s claim was accepted by the insurer. He received statutory benefits including wages and medical expenses and also worked in a series of labouring jobs on a casual or part-time basis until 2009, when he began suffering very severe headaches after working on a building site. He has been unable to work since due to neck pain and headaches.

15. The plaintiff continued to receive statutory benefits for wages and medical expenses for the next four years. The workers compensation insurer then gave notice, by correspondence dated 15 May 2014, that the plaintiff’s wage benefits would be terminated on 1 July 2015. The plaintiff first consulted a firm of solicitors named Walker Legal and then his current solicitors. The plaintiff’s current solicitors raised the question as to whether the plaintiff was entitled to a further assessment of his whole person impairment by reason of deterioration of his injuries.

16. At the time that this question arose in May 2015, the plaintiff faced the difficulties caused by the decision of the New South Wales Court of Appeal in Cram Fluid Power Pty Ltd v Green [2015] NSWCA 250 (27 August 2015), and he had to wait until legislative amendments were passed on 13 November 2015. Between December 2015 and 30 June 2017 there were further investigations and on 26 September 2017, as noted above, the certificate was provided.

17. There were some unfortunate delays during 2018 and 2019, largely due to inactivity by the plaintiff’s solicitors, but an additional problem arose between the period March 2020 and April 2021, as the plaintiff had been advised that he should undergo an operation on his cervical spine. Finalising a work injury damages claim means that the claimant will lose the entitlement to receive benefits for medical expenses and there was the additional problem that an adverse outcome from spinal surgery may be relevant to an assessment of the merits of the claim. For this reason, it was necessary for the plaintiff to make further enquiries, which he did, in that he obtained reports from Dr Parkinson and Dr Stening, following which she decided not to proceed with the surgery.

18. The plaintiff’s current lawyers, who had been acting for him since 2015, arranged for the plaintiff to see Mr Terry Willis of Counsel, who was the first person to tell the plaintiff of a potential work injury damages claim. Mr Willis warned that investigation concerning the circumstances of the accident should take place and that liability circumstances and an expert opinion concerning horse management would be necessary. It was not until the plaintiff saw Mr Willis that he was aware of there being a limitation period for the need for this further material to be obtained.

19. There were further delays during this period, due to the solicitors for the plaintiff who, in the words of Mr Romaniuk SC, “did not progress the claim with the dispatch that hindsight casts” (submissions, paragraph 8). In addition, Mr Willis died, which would have been added difficulty. By the time proceedings were commenced on 27 January 2022, the proceedings were well out of time in this application for an extension of time pursuant to s 151D of the Workers Compensation Act was foreshadowed.

20. The plaintiff’s submission is that the negligence of the defendant is clearly set out by the expert report provided from Mr Hunt. Mr Hunt deals specifically with the allegation that the barrier attendant was distracted and not concentrating on the task of opening the gate for the horse because he was on a mobile telephone call, and that this delay was the principal reason for the horse the plaintiff was riding to rear up with the result that the plaintiff fell. The plaintiff’s claim also includes that the defendant was aware of the propensity of the horse to act in such a way in the barrier, due to its behaviour a week or ten days prior to the accident, but this is not the subject of commentary by Mr Hunt.

21. The defendant also submits that the plaintiff cannot succeed against the defendant on the basis that he is a “deemed employer”.

22. The statement of claim sets this out as follows:

“The plaintiff’s employment by the defendant is deemed by operation of clause 9(1)(c) of schedule 1 to the Workplace Injury and Management and Workers Compensation Act 1998 (NSW). The defendant was the racing club or association of the facilities, including the racehorse and other premises, at Racecourse Drive, Taree, New South Wales. At all material times the plaintiff is a person who was engaged in riding work in connection with horse racing (but not harness racing) on the racecourse or other premises of a racing club or association.”

23. The claim relates to the conduct persons involved in work relating to horses racing on the racehorse, such as the plaintiff and the barrier attendant who, it is submitted, are deemed workers of the defendant and the deemed worker status applies for the purpose of a negligence claim: Ebb v Fast Fix Steel Fixing Pty Ltd [2007] NSWCA 236; OP Industries Pty Ltd v MMI Workers Compensation (NSW) Ltd (1998) 17 NSWCCR 193. The plaintiff’s employer beyond the WIM Act deemed worker provisions was Mr Robert Milligan, who is now deceased.

The plaintiff’s statements

24. In the course of consulting his former and present solicitors, the plaintiff has prepared three statements, dated 5 March 2010, 9 June 2017 and 31 January 2020. He sets out an account of the circumstances of the accident.

25. The defendant asserts that inconsistencies in the statements is relevant to the claims of actual prejudice. The relevant extracts from each of these three statements are as follows:

1. 5 March 2010 statement

“On 16 November 2004 I was at Taree Racecourse and was riding a horse. After preparing the horse we rode start around to the barriers. I was with Beatrice Conder. I entered the back of the barrier box. The back of the barrier box was closed by Matthew Robinson.

I was in the box for 30 second at the most. For a racehorse this is a reasonably long period of time to remain in the box. Although the horse had a few starts it wasn’t a particularly experienced horse and by its nature was particularly flighty.

On this occasion once the box was closed the horse was agitated but was not moving particularly.

In the ordinary operation a starter would call “1,2,3” and on the count 3 would open the gates. This horse on its previous start had missed the start and I was trying to teach it to jump on time. On the count of 2 I was anticipating the 3^rd count and yelled to the horse to get it set. I am not sure whether I called too early or the horse reacted to my call in a wrong fashion however as I learnt forward on yelling to anticipate the start the horse did not jump but reared up. The back of its head struck me in the face. The force of the blow to my face threw me through the back of the stall. An ambulance was called and I was taken directly from the track to the Hospital.”

2. 9 June 2017 statement

“On 16 November 2004 I was riding a horse at Taree Racecourse with Beatrice Conder. I rode to the barriers and entered the back of the barrier box. Matthew Robinson closed the barrier box once I was inside. There was only one other horse in the barrier at that time. While he was handling the horses he was talking on his mobile phone. I yelled at him to get off the phone and concentrate on what he was supposed to be doing. After approximately 30 seconds the horse, became agitated and reared back. The back of the horses head struck me in the face and I was thrown off the horse, f was conveyed by ambulance to Manning Base Hospital.”

3. 31 January 2020 statement

“On 16 November 2004, I suffered an injury when engaged to ride a thoroughbred racecourse called ‘'Doutelle”. Doutelle was a horse trained by Mr Milligan.

I rode Doutelle into the barrier on 16 November 2004 and the barrier gate behind the horse was closed by a fellow employee of the race club, Mr Matthew Robinson.

While sitting on Doutelle in the barrier and waiting for the gate to be opened by Mr Cavanagh, I noticed that Mr Cavanagh was on his mobile phone talking for an excessive period of time probably more than half a minute during which time Doutelle became agitated. I told Mr Cavanagh to get off the phone and do his job and shortly thereafter Doutelle reared so that Its head struck my face and head knocking me to the ground causing me to suffer significant injuries.”

26. There are asserted inconsistencies in the plaintiff’s account as to who else was present on the day in question, what they were doing. These are as follows:

1. After the accident, the plaintiff lodged a Significant Injury Report Form and described in the course of his injuries as being only “hurt in barriers” without referring to a mobile phone or prior problems with the same horse. He identifies Mr Milligan as his employer.

2. In the statement of 5 March 2010, the plaintiff said he was with Ms Conder when he entered the back of the barrier box, which was closed by Matthew Robinson. This description does not refer to a mobile phone being in use at all. To the contrary, the plaintiff sets out that, on the count of two, he was anticipating the third count and yelled to the horse to get it set. He was not sure whether he called too early for the horse reacted to his call in the wrong fashion, but the horse reared up instead, which is how the accident occurred. There is no mention of Mr Cavanagh or Mr Milligan being present or of the mobile phone being used by anyone. Given the small amount of space in which to write the cause of the accident, I do not consider such an omission surprising.

3. In his statement of 9 June 2017, the plaintiff again recites that he went to the barriers with Ms Conder and that Matthew Robinson closed the barrier box once he was inside. It is then asserted, for the first time, that while Mr Robinson was handling the horses, he was talking on his mobile phone. The plaintiff says that he yelled at him to get him off the phone and concentrate on what he was supposed to be doing. After approximately thirty seconds the horse became agitated and reared. There is no mention of Mr Cavanagh or Mr Milligan. I note, however, that in Mr Willis’ Advice dated 18 December 2017 (Exhibit 1), he states that “Tony Cavanagh was on his mobile phone” and that the plaintiff called out to Mr Cavanagh: “Get off the phone and do your job”. Mr Willis also refers to the plaintiff waiting 20 – 30 seconds, which Mr Baran submits is another change of facts, but I do not accept this is a difference. It was described to Mr Willis as “a long period of time” given the circumstances the plaintiff was in. the account given by Mr Willis is thus consistent with the facts of the case put before the Commission and as pleaded in this court.

4. In his statement of 31 January 2020, the plaintiff sets out that the barrier gates were closed by a fellow employee of the race club, Mr Robinson, but that the gate had to be opened by Mr Cavanagh. He now says that he noticed Mr Cavanagh, not Mr Robinson, on his mobile phone talking for an excessive period of time, probably more than half a minute, during which time the horse became agitated. The plaintiff told Mr Cavanagh to get off the phone and do his job and shortly thereafter the horse reared.

27. The first difficulty is what to make of an allegation of use of a mobile phone by Mr Cavanagh which has clearly been made in December 2017 to Mr Willis of Counsel, contrary to the statement signed by the plaintiff six months earlier. The second difficulty is that, in the statement of claim as originally drafted and amended, a particular of negligence that Mr Cavanagh was aware of the same horse (Doutelle) rearing up in the same fashion a week or ten days beforehand is set out. Mr Baran relies on these matters in relation to prejudice and also as evidence that the plaintiff has a weak case.

Presumptive and actual prejudice

28. The presumption of prejudice arising from the passage of fourteen years and the respondent’s being able to deal with the evidence is strong: Gower v State of New South Wales at [150], [190]-[191] (coincidentally, the period of 14 years also occurred in those proceedings); Commonwealth of Australia v Shaw (2006) 66 NSWLR 325. A claim is formally made of presumptive prejudice but the defendant submits there is extensive evidence of actual prejudice, including the death of Mr Milligan, who Mr Baran describes as the defendant’s principal witness.

29. The plaintiff’s solicitors arranged a factual investigation into the circumstances of his injury and on 25 March 2018 obtained a report from OBD Services. They were only able to take a statement from Ms Osborne (now Ms Conder) and Matthew Robinson. These may be summarised as follows:

1. Ms Conder (Court Book 228) confirmed that both she and the plaintiff had worked for Mr Milliken. She had been present on the day of the accident, but did not see the accident occur, as she was riding the other horse, which had just jumped out. When asked about whether or not Mr Cavanagh was on the mobile phone at the time of the accident, she said that she could not say for certain if he was on the phone or not, although she considered he was alive to safety concerns. She was not sure whether or not Mr Robinson had closed the gates of the barrier, or if Mr Robinson was even there (paragraph 17 of her statement). She told the investigator that there were a number of reasons for a horse jumping in the barriers, ranging from sudden noise or the appearance of a bird.

1. Matt Robinson: Mr Robinson, when finally tracked down, said that he had no recollection of the incident or any similar incident (paragraphs 16-19 of Mr Cunningham’s statement). A statement was later obtained from him. He stated:

“Although I often saw Tony using his mobile phone in the course of his work as course manager, I never personally saw him on his mobile phone between the times that horses were secured in the barrier and when he released them from the barriers for their practice starts. I am not aware of any formal requirements either written or otherwise in this regard, but these were his normal practices from what I saw.”

3. He went on to add, at paragraph 19(c):

“In relation to failing to instruct the curator not to use a mobile phone while in charge of the barriers, I refer to my comments above in relation to my own observations of Tony and confirm that I never personally saw him using his mobile phone between the time the horses were secured in the barriers and the time they were released by him. I am not personally aware of any instructions or rules in relation to his use of the mobile phone on site.”

Mr Cavanagh’s evidence

30. The person alleged to have been on the phone is Mr Cavanagh, from whom a statement was obtained on 23 August 2018. He gave a description of work practices, as he could not remember the incident:

“I have been made aware of the description of Shane Allan's accident on 16 November 2004 in relation to his current case. I do not remember this accident specifically, although it sounds similar to a few other accidents of this nature that occurred at the track from time to time involving other track workers.

It is difficult to estimate how often these types of accidents occurred, but it was only here and there and probably only happened less than half a dozen times a year on average. I can make this estimate based in part on the fact that I was the First Aid Officer of the course and attended to any injured parties in the course of my work.

On track work days, I was the person responsible for opening the gates of the practice barriers to release the horses. Professional stewards and starters did this for actual races where the main barriers were used. The gates for the practice barriers were opened by manually pushing a lever forward from the front of the gates and to the left-hand side if facing the barriers form the front. The main barriers were opened electronically pushing a button, but I did not use these barriers myself as indicated above.

Once the horses had been guided into the practice barriers by one or two attendants from the stables, my routine was then to shut the gates behind each horse in turn, I then walked around to the start position and readied myself to release the lever, thereby opening the barriers, Before doing this, I verbally called out to the track workers, "Ready?" I would then count aloud fort them, "One, two, three," and then push the lever forward.

Normally, there was about two to five minutes delay between me shutting the last of the rear gates and pushing the lever forward. This time delay was mainly in order for me to allow the horses to properly settle before they were released. The actual times varied somewhat from day to day depending on the state of the horses.

I did have my mobile phone with me while I performed these duties, I made and received many calls during the course of a normal day, mainly with trainers and suppliers amongst other people. In some ways, the phone itself was a virtual office for me.

I was on my phone at times while the horses were waiting to be released but as indicated above, I do not remember the specific circumstances of Shane's accident in this case and cannot comment on this directly.

As indicated above, there were usually one or two attendants present with the horses at these times. As such, there was no particular need for me to try to control the horses once they had been secured in the barriers. The attendants usually held on to the bridles of one horse each to steady them, but not all horses were necessarily able to be restrained in this way depending on how many attendants were present. Sometimes, the attendants brought two or even three horses with them, depending on how settled the horses were.

The policy and practice of the race track was that at least one attendant per stable be present for their own horses. However, this did not necessarily mean that there was one attendant per horse. I believe this was a verbal policy and practice and am not personally aware of it being in written form. The Race Club Committee of the race track determined these matters. The only members of the committee I can recall from that time included Greg Coleman, Don Hopkins (now deceased), Alan Skinner, Roy Robinson and Phillip Shoesmith. I am not in touch with any of these people any more and do not know their contact details.”

31. The use of the mobile phone was not the only particular of negligence. A further particular, as set out in paragraphs 4 and 5 of the statement of claim, is that Mr Cavanagh was or should have been aware that about 7 to 10 days beforehand the horse had become agitated and reared in a similar way. I cannot see that this claim has been put to Mr Cavanagh. The allegations were part of the Pre-Filing Statement and should have been known at the time. Nor was this put to Ms Conder (who does have a recollection of the day of the accident and the horse’s name) or to Mr Robinson (who commented in paragraph 19 of his statement at length on the particulars of negligence he was shown).

Mr Milligan

32. As noted above, the deeming provisions of the Act permit recovery against the current defendant as part of the workers compensation insurance scheme in respect of horseracing. However, the facts of the negligence pleaded need to be proved as against Mr Milligan for his servants or agents for whom he is precariously liable, which would not include Mr Cavanagh, who was not employed by Mr Milligan.

33. The defendant submits that Mr Milligan would not have been vicariously liable for the conduct of Mr Cavanagh, who was the track curator. This creates difficulties in relation to the concept of “deemed” employment.

34. Mr Milligan died in February 2023. The defendant says that Mr Milligan would be the critical witness who could provide evidence to the court on the system of work, which I infer would include whether or not there should be attendants at the barrier, use of mobile phones, prior knowledge of the disposition of the horse to rear up and the events of the day in question. In practical terms, however, the events of the day would be matters upon which Mr Cavanagh and, to a lesser degree, Mr Robinson, would be giving evidence.

Conclusions concerning actual prejudice

35. Mr Cavanagh’s statement was supplied in the work injury damages prefiling process. Mr Romaniuk SC adds that the workers compensation insurer also investigated the claim, and commenced to make payments contemporaneously with the subject accident, although, given the factual circumstances, they would be likely to have done so whether a mobile phone was in use or not.

36. Where actual prejudice is asserted, the defendant must establish what material is no longer available and how that impacts on the terms of the prejudice. There is no longer any claim of missing documents, the witnesses have been interviewed and the sole claim left is the impact of the death of Mr Milligan.

37. If Mr Cavanagh, and not Mr Milligan, had died, this would have been a far more likely source of actual prejudice. Mr Cavanagh, not Mr Milligan, is the key witness, and his recollection, while dimmed somewhat by time, will still make him a useful witness to the defendant. His recollection about mobile phone use does not amount to actual recollection of what occurred. It is suggestive of a course of work practice that left the responsibility of looking after the horse to other persons, namely the attendants to whom he refers.

38. Applying these principles as enunciated by Simpson AJA in Gower v State of New South Wales, I first note that until the plaintiff was assessed as having suffered a 19% whole person impairment, he could not commence proceedings at all, and a very substantial delay would be inevitable, a point considered significant by Simpson AJA. When taking into account the fact that witnesses could no longer remember what occurred on the day of the accident. I take account of the likelihood that their recollections were dimmed during the years prior to the plaintiff reaching the threshold. (As noted above, I have not accepted the defendant’s submission that the plaintiff should have given earlier notice by reason of the observations of White JA to this effect in Gower v State of New South Wales).

39. There were both missing witnesses and documents in Gower v State of New South Wales but Simpson AJA (at [253]) described these as “relatively insignificant”, in that most of the witnesses were available, whether they recollected the events or not. The present case is much stronger, in that all the persons at the accident scene are available and have been interviewed, and that Mr Milligan’s contribution to that evidence would not go to a determination of the circumstances giving rise to the accident occurring. There are no missing documents and there is no prejudice to the defendant arising from the plaintiff giving different accounts of the circumstances of the accident.

The delays and their explanations

40. A plaintiff seeking an extension of time must provide a sufficient and acceptable explanation of the delays after the limitation period expired. Explanations for delay include:

1. While the plaintiff cannot commence proceedings until such time as an assessment of WPI exceeds 15% (which occurred on 9 January 2017), Mr Baran submits that it was open to the plaintiff to advise of the likelihood of such a claim beforehand (Gower v State of New South Wales). This is discussed in more detail below.

2. Delay waiting for statutory amendments to take place (which occurred in November 2015). This is a very short delay and is of little impact.

3. Delay due to consideration by the plaintiff as to whether he should have back surgery. This is set out in more detail below.

4. Delay due to inaction by the plaintiff’s new solicitors due to inadvertence (26 March 2018 to 13 July 2018) and failure to proceed expeditiously (August 2018 and March 2019). Due to inadvertence, an expert was not commissioned until 26 March 2019. These delays are unfortunate in that it was during this period that Mr Cavanaugh died.

Failure to give notice prior to reaching the threshold

41. In Gower v State of New South Wales, White JA considered that the plaintiff could, or should, have given earlier notice of his claim notwithstanding the absence of a medical report assessing his work injury as being at or above 15%.

42. There was disagreement between White JA and the other members of the Court as to whether, despite not having a medical report giving a 15% assessment, the plaintiff should nevertheless have notified a work injury damages claim. Simpson AJA stated (at [245]) that she did not agree with White JA’s finding to this effect:

“Contrary to the view expressed by White JA at [76] I do not accept that the appellant could, or should, have given notice of his claim for s 51H damages prior to his obtaining viable evidence of 15% impairment. In this respect s 318 of the WIM Act is of particular importance. The effect of that section is that, in practical terms, the appellant could not serve his Pre-Filing Statement without that evidence, because, if he did, he would not be able to rely on it at a trial.”

43. Basten JA does not refer to this as a ground for dismissing the appeal, although his Honour joined with White JA in dismissing the appeal (Simpson AJA dissented).

44. White JA’s requirement for such notice has not been followed by other judges in this court. In Young v Reece Australia Pty Limited [2018] NSWDC 465, Neilson DCJ described White JA’s observations as “dictum” and preferred the view of Simpson AJA. Similarly, in Chaffey v MPM Maintenance Services Pty Ltd & Anor [2019] NSWDC 260 at [105], Hatzistergos DCJ preferred the view taken by Simpson AJA (see also Paikan v Western Sydney Local Health District [2020] NSWDC 252 and Hibbs v Ready Workforce Australia Pty Ltd [2022] NSWDC 427).

45. It may be that, in future litigation, the warning given by White JA may be applicable. In the present case, however, the WPI finding was made in 2017, before Gower v State of New South Wales was handed down. In those circumstances, a plaintiff should not be required to comply with any such obligation.

Difficulty in obtaining documents from the plaintiff’s previous solicitors

46. The plaintiff consulted two law firms, the first of which is a firm now known as Walker Legal, and his current solicitors, LHD Lawyers.

47. Mr Abouchrouche has provided an affidavit setting out the information relevant to LHD’s conduct of the proceedings on the part of the plaintiff since he first instructed them on 27 April 2015. The plaintiff did so because he had been warned that his weekly compensation entitlements were due to be terminated. However, the relevant files from the plaintiff’s former solicitors was not provided until the day of the hearing before me.

48. LHD opened a workers compensation file for the plaintiff on 1 May 2015 and sought a copy of the plaintiff’s file from his previous solicitors. They received some documents on 5 June 2015. However, while the documents provided referred to the claim made by the plaintiff in 2009 the reinstatement of his weekly payments and reimbursement of his medical expenses, the file for his 2006 claim for lump-sum compensation was not provided (it was initially considered that this file had been destroyed but on the day of the hearing the file was finally able to be provided).

49. This material from Walker Legal is now available, having been produced during this hearing, and relevant extracts have been tendered as part of Exhibit 1. The only document tendered is an archiving note dated 4 August 2009 which includes a note “Statute of Limitations: 26/11/2007”. The note refers to a “next appointment” on 15 December 2006, suggesting that the noted date of the limitation period precedes the archiving note made on 4 August 2009. That does not mean, however, that the plaintiff was told about a limitation period. To the contrary, a letter from Walker Legal dated 24 November 2009 refers to “seeking a review” from the Workers Compensation Insurer and gives advice about the inability of the plaintiff to make a claim for these injuries from a GIO Business Insurance policy. The earlier absence of this documentation is no longer an issue, as I understand Mr Baran’s submissions.

Delay by the solicitors for the plaintiff

50. There were two periods of time due to inadvertence (26 March 2018 to 13 July 2018) and failure to proceed expeditiously (August 2018 and March 2019). Those delays are regrettable, but an explanation of incompetence or oversight is generally accepted, for the reasons expressed by Simpson AJA in Gower v State of New South Wales.

51. In addition, due to inadvertence, an expert was not commissioned until 26 March 2019, when Mr Robert Hunt, an expert in course management, was retained. That expert report, dated 22 July 2019, was served on 26 August 2019.

52. The report from Mr Hunt is significant in terms of whether the plaintiff has a weak case as claimed by the defendant. It should have been obtained earlier and it should have covered the alternate grounds for negligence, namely that the horse, Doutelle, had reared in the same fashion a week or ten days beforehand. These are unfortunate delays and oversights but their contribution to actual prejudice is slight. In practical terms, by the time these delays occur, the factual matrix underlying the assertions of actual prejudice was already largely established by reason of the effluxion of time.

Delays due to consideration of whether surgery should be performed

53. The next source of delay arose from the discussions between the plaintiff and his solicitors as to whether his condition was stable. He made a request for surgery to the defendant which was declined. The surgery in question was to his cervical spine. It was necessary for this to be performed before he took the proceedings further, as his entitlement to payment for surgery and hospital expenses would no longer be available once this commenced. The plaintiff eventually decided not to have this surgery.

54. This is a regrettable delay but the explanation should be accepted.

Conclusions concerning delay

55. Guided by the observations of White JA and Simpson AJA in Gower v State of New South Wales on this issue, I consider that while there have been delays, a fair trial can still be had.

The weakness of the case

56. The asserted weakness of a plaintiff’s case is a matter relevant to the exercise of the discretion under s 151D: Gower v State of New South Wales at [149]. It is not, of itself, sufficient.

57. The weakness of the case would include the following:

1. The asserted negligence needs to be established against Mr Milligan, his servants or agents or for some other person to whom he is vicariously liable. He did not employ Mr Cavanagh. He could not be vicariously liable for his conduct. The amendment to claim that the plaintiff is a deemed employee is difficult to establish.

2. The facts the subject of the claim would be difficult to establish. Even if the plaintiff could establish that the current defendant should be liable to him in damages, there are asserted to be a number of inconsistencies in the plaintiff’s version, the most important of which are the omitting of any reference to Mr Cavanagh and Mr Milligan in the statements that the plaintiff prepared with legal assistance. There does not appear to be any factual support for the claim that the horse was known by Mr Cavanagh to have behaved in the same way a week before, or what Mr Cavanagh (who was not any employee of Mr Milligan) could have done about this.

The correct defendant?

58. Although Mr Baran submits that there must be real doubt as to whether the plaintiff can succeed, I consider there is a reasonable argument, for the reasons set out in paragraph 9 of the submissions of Mr Romaniuk SC and the authorities to which he refers. I was not referred to any authority to the contrary.

The mobile phone and Mr Cavanagh’s prior knowledge of the horse

59. The most helpful document when considering whether or not the plaintiff has a weak case is the report of Mr Hunt. I particularly note:

1. He sets out at paragraph 8(b) – (c) that the horse ridden by the plaintiff had a need for barrier education and was participating in a practice “jump out” when at the same time another horse rider participating in the same exercise was already in the barrier. The purpose of this education is to help the horse cope with the confinement in the barrier and is appropriately comfortable and not disruptive. He goes on to state that “it is incumbent upon the barrier attendant to ensure that a horse is safely released in circumstances where a horse is becoming agitated” (at paragraph 8(e)). If the horse being trained is becoming agitated, the barrier attendant may release the gate to permit the horse to exit so as not to escalate its level of agitation.

2. He goes on to say that he has been informed that the barrier attendant was using a mobile telephone prior to the horse and the plaintiff entering the barrier and that this conversation continued while the horse was confined, and it became agitated.

3. His conclusion that it was not proper practice for a barrier attendant to maintain a telephone conversation at a time when he was responsible for the control of the barrier jump out. He needed to give his complete concentration to the task at hand to monitor the situation within the barriers to ensure the safety of the horses and their riders. Mr Hunt said that if he had been paying proper attention and seen the horse was becoming agitated, he could have released the barrier gate early and this would have been the most appropriate step to take in the circumstances, before the horse’s level of agitation sparked. Alternatively, the barrier attendant could have gone to the horse’s head and held the reins or otherwise sought to calm the horse. He considered that the barrier attendant was preoccupied by telephone conversation and did not undertake any measures to attempt to calm the horse’s level of agitation.

1. Mr Hunt concludes his report by noting that horses are domesticated wild animals which react quickly to any perceived threat and that “all courses when in a barrier are particularly vulnerable to agitation” because they are confined and have no means to escape any perceived threat. In relation to this particular horse, which was in need of barrier training and was in a vulnerable position, this problem was foreseeable. In addition, the horse had been on a special feed program which would have had enhanced its agitation, as with the horse’s observation of the unsuccessful attempts of Mr Allen to get the attention of the barrier attended. This was a potentially dangerous situation and resulted in the injury described.

2. Mr Hunt then formally states that in his concluded view, had the barrier attended been concentrating on the task at hand, steps were available to him which unbalance would have prevented the injury to the plaintiff. In particular, the horse’s behaviour in the circumstances was predictable.

60. It is not possible for me, on an application of this kind, to decide that the plaintiff’s case is weak. There are inconsistencies in the plaintiff’s own evidence, and the deeming provisions are not open and shut, but the mere fact that a case may be difficult to win does not make it “weak”. In Gower v State of New South Wales, Simpson AJA considered that time should be extended although her Honour frankly stated (at [255]) that real difficulties lay before the plaintiff in any such trial, given the incompetence with which the plaintiff’s case had been conducted.

Concluding remarks and costs

61. I am satisfied that there is no actual prejudice and that any presumptive prejudice from the delaying commencement of proceedings is not of sufficient seriousness to say that a fair trial cannot be had. I am satisfied that there has been an explanation of the delay in question conformably with the requirements explained by Basten JA in Gower v State of New South Wales at [4]. While the proceedings may be difficult to win, the case is not weak.

62. As to costs, Mr Romaniuk SC submits that the defendant was unreasonable to dispute the plaintiff’s entitlement to relief. If these matters had not been in dispute, the court could have dealt with the matter “on the papers”, a common course in applications of this nature, and the court could have avoided a day-long hearing and a reserved judgement.

63. Mr Baran submits that the delay in these proceedings was at the extreme end and that much of the delay caused in the hearing occurred because of the conduct of the solicitors for the plaintiff, who failed to produce documents in answers to a notice to produce, which resulted in two quite lengthy adjournments during the day so that the documents could be produced and read.

64. I note that orders for costs are permitted because the costs restrictions in the Workers Compensation Regulation 2016 (NSW) do not apply to the costs of this notice of motion: Franco v Workers Compensation Nominal Insurer [2020] NSWSC 915 at [61] per Rothman J.

65. Where there has been a delay of this magnitude, I consider it is not unreasonable for a defendant to have the benefit of evidence, including production of the solicitors’ files, not least because the precise parameters of Mr Milligan’s evidence needed to be considered in the context of any contemporaneous documentation. It must be remembered that discovery is not a procedure available in personal injury cases, and often this is the only way that a defendant who is concerned about issues of prejudice, can obtain the information in question. In addition, Mr Baran ran his case in a very efficient manner. He did not seek to cross-examine the plaintiff, or waste the court’s time on complaints about non-production of documents.

66. Finally, and most importantly, the plaintiff is seeking an indulgence. While it is no longer the case that an extension of time requires a costs order against the party seeking extension, the court should take into account that an order is being sought to which the party would not otherwise have been entitled. Accordingly, I propose to order the plaintiff to pay the defendant’s costs of the notice of motion.

Order:

1. Pursuant to s 151D of the Workers Compensation Act 1987 (NSW), the plaintiff is granted leave nunc pro tunc to commence these proceedings.

2. The plaintiff to pay the defendant’s costs of the notice of motion and hearing of this application.

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Decision last updated: 14 April 2023