Beller v Rocla Pty Ltd

[2019] NSWDC 616

District Court

New South Wales

Medium Neutral Citation:

Beller v Rocla Pty Ltd [2019] NSWDC 616

Hearing dates:

2 September 2019

Date of orders:

01 November 2019

Decision date:

01 November 2019

Jurisdiction:

Civil

Before:

Scotting DCJ

Decision:

(1)   Verdict for the plaintiff in the sum of $282,411.63.
(2)   The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis.

(3)    In the event that any party seeks a different cost order, please notify my Associate within 14 days.

Catchwords:

LIMITATION OF ACTIONS — Discoverability — Personal injury — When plaintiff “ought to know” facts

Legislation Cited:

Limitation Act 1969
Workers Compensation Act 1987

Cases Cited:

Baggs v University of Sydney Union [2103] NSWCA 451
Baker-Morrison v State of New South Wales [2009] 74 NSWLR 454
Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167
State of New South Wales v Gillett [2012] NSWCA 83

Category:

Principal judgment

Parties:

Kenneth Beller (Plaintiff)
Rocla Pty Ltd (Defendant)

Representation:

Counsel:
P A Beale/J E Doyan (Plaintiff)
D O’Dowd (Defendant)

  Solicitors:
CMC Lawyers (Plaintiff)
Moray & Agnew (Defendant)

File Number(s):

2018/192277

Publication restriction:

None

Judgment

Introduction

1. The plaintiff seeks damages for personal injury arising from an accident at the defendant’s premises on 7 March 2011. At that time, the plaintiff was employed by Workforce Mobility Unit Trust (Workforce), a labour hire firm. The plaintiff was sent by Workforce to work at the defendant’s premises in Mittagong as a casual labourer involved in the process of manufacturing concrete railway sleepers.

2. These proceedings were commenced on 21 June 2018. The only live issue in the proceedings is the defendant’s Limitation Act1969 defence (the Act).

3. If the defence is established, the proceedings should be dismissed. If not, the parties have agreed on Consent Orders which would result in entry of judgment for the plaintiff.

Evidence

4. At the hearing the plaintiff read an affidavit sworn by him on 2 September 2019 and tendered a Chronology, which is to be treated as evidence, in accordance with the Practice Note.

5. The defendant tendered a statement of the plaintiff taken by an insurance investigator dated 9 September 2011 (the Plaintiff’s Statement), documents relating to the plaintiff’s resignation from Workforce and a Consent Judgment filed in the section 151Z recovery proceedings (the Recovery Proceedings) between the Workers Compensation Nominal Insurer and the defendant filed in this Court on 9 July 2014 (the Consent Judgment).

6. The plaintiff was called to give evidence before me on 2 September 2019 and was cross-examined.

Facts

7. The following facts are taken from the plaintiff’s affidavit, the plaintiff’s evidence, the Plaintiff’s Statement, the Chronology and the defendant’s documentary evidence.

8. In 1998 the plaintiff left school in Year 11. After leaving school he completed a pre-apprenticeship in mechanics. From 2000 until the end of 2010 he worked in a variety of different roles. For each of those positions he received on-the-job training and qualifications.

9. In or about September 2010 the plaintiff’s mother was diagnosed with terminal cancer. The plaintiff believed that she had lung cancer but by the time she was diagnosed, it had metastasised. The plaintiff’s mother lived in the St George area and the plaintiff tried to visit her every couple of weeks by driving to and from his home in Mittagong to see her. The plaintiff and his wife brought their wedding day forward so that his mother could attend.

10. In or about January 2011 the plaintiff attended an interview with Ben Parkes, a representative of Workforce at the McDonalds in Mittagong. The plaintiff understood that he was being interviewed for placement as a casual labourer at the defendant’s premises. The plaintiff was employed by Workforce at the completion of the interview. The plaintiff was then shown a work health and safety video produced by Workforce in Mr Parkes’ vehicle. The plaintiff did not have a written employment contract with Workforce.

11. Immediately after his appointment with Workforce, the plaintiff was sent to work at the defendant’s premises. The plaintiff worked 40 hours or more per week, on a Monday to Saturday rotating roster. The plaintiff worked at least six hours overtime on a Saturday and sometimes during the week with an average of about 10 hours paid overtime per week. At the defendant’s premises, the plaintiff worked under the control and supervision of the defendant’s employees. The work involved setting up moulds for the concrete sleepers including laying wire in the moulds and tensioning it as a means of reinforcement.

12. The plaintiff was given an initial induction with the defendant that required him to watch a number of video presentations and then answer a multiple choice written test. The test covered subjects including lifting, handling chemicals, working around forklifts, the use of fire extinguishers, evacuation procedures and keeping the work area clean.

13. The plaintiff was required to wear steel capped gumboots, which were supplied by the defendant. The gumboots had an oil resistant thick tread but they were, on occasions, insufficient to deal with the slippery conditions at the defendant’s premises. The plaintiff was also required to wear high visibility clothing, safety glasses, gloves, a helmet and ear plugs that were supplied by the defendant.

14. The plaintiff’s direct supervisor was Morgan Knott, who was described as a Team Leader. The second-in-command of his team was Mick Bridges.

15. A representative of Workforce would visit the defendant’s premises from time to time and check in with the plaintiff.

16. On Monday 7 March 2011 the plaintiff was working night shift at the defendant’s premises. He commenced work at 6pm, which was an early start, to be recorded as overtime.

17. At the defendant’s premises, the plaintiff worked in a large shed. The moulds for the concrete railway sleepers were laid out in beds, which ran longitudinally through the shed. On the floor of the shed, running parallel to the beds, were metal rails from a disused railway system (the railway system). The rails were slightly raised above the concrete floor.

18. At about 11pm he was working on bed B with Keith Grey. During the course of the work it was noticed that a metal plate to be inserted into the mould was bent and needed to be replaced. The plate weighed about 10 kgs and was about 1.8 metres long, 60 mm wide and about 12 mm thick. The plate was handed to the plaintiff by Mr Grey. As the plaintiff went to turn with the bent plate to place it on a rack behind him, he stepped onto a metal rail of the railway system with his left foot. When his left foot came in contact with the wet rail it slipped and the plaintiff fell as he twisted. The plaintiff dropped one end of the plate and put his right hand out to save himself. He fell backwards but stopped his fall with his right hand.

19. The plaintiff picked himself up and felt pain in his left lower back. It was a burning pain which he rated about six or seven out of 10. The plaintiff thought that he could walk the pain off. He put the bent plate on the rack and swapped it for a new one. He then returned to work. The plaintiff said to Mr Grey “I slipped over swapping a plate”. Mr Grey said “are you alright?” The plaintiff said “I don’t think so, I’ll see how we go.”

20. When Mr Grey and the plaintiff reached the end of the bed Mr Grey told the plaintiff to go and see Mr Knott or Mr Bridges. The plaintiff went to the back corner of the quality area where the Team Leaders sat. The plaintiff told Mr Bridges what happened. The plaintiff and Mr Bridges then both went to see Mr Knott. The plaintiff told Mr Knott what had happened and Mr Knott told him to fill in an Incident Report. The plaintiff filled out an Incident Report and Mr Knott told him to sit down for a while and see how he felt.

21. The plaintiff sat out the front of the shed. Mr Knott gave the plaintiff two Voltaren tablets and two Advil tablets, which he took. The plaintiff sat on a chair at the front of the shed for about 45 minutes. Mr Knott came to check on the plaintiff at which time the plaintiff said “I am still sore”. At that time the pain had not improved but had gotten worse.

22. The plaintiff was then sent home early, leaving at about midnight. Mr Knott told the plaintiff to make sure that he came back the next day, even if he was still sore, otherwise it would be counted as a lost time incident. Lost time incidents affected the bonuses for full time staff. Mr Knott said, “everyone will get the shits with that”. The plaintiff drove himself home and was still sore. The plaintiff did not take any other medication that night.

23. On 8 March 2011, the plaintiff attended work at 1.15pm to start his shift. The plaintiff went to work because of what Mr Knott had told him about the time being counted as a lost time incident. When the plaintiff arrived, the Team Leaders were sitting outside in a ‘smoko area’. Mr Knott asked the plaintiff how he was and the plaintiff told him that he was no better. John Harrison said that they had better get the safety officer, Matt, to take the plaintiff to the doctors. Matt took the plaintiff to a medical centre in Mittagong, because the usual doctor used by the defendant to examine workers, was not available.

24. Matt went in to see the doctor with the plaintiff. The doctor did not want to allow the plaintiff to go back to work but Matt assured the doctor that the plaintiff could be provided with suitable light duties. A doctor told the plaintiff that he thought he had suffered a muscle strain and that he could only do office duties. Matt assured the doctor that the plaintiff would be sitting down to do office work for six hours.

25. The plaintiff returned to work with Matt and was required to operate a diamond saw. The saw was used to cut the wires and separate the sleepers. It was operated by a series of levers at waist height, which required the operator to stand when using it. The plaintiff operated the saw for eight hours, being the rest of the shift. The plaintiff had arrived at work early for his shift and had returned from the doctors before the ordinary time for the commencement of the shift. The plaintiff stood for the whole of that shift. The plaintiff still experienced pain but was feeling better by the end of the shift. Mr Knott asked the plaintiff how he was going a couple of times throughout the shift.

26. On 9 and 10 March 2011 the plaintiff attended work at 1.15pm and operated the diamond saw for eight hour shifts, standing the whole time.

27. On Friday 11 March 2011 the plaintiff attended work at 1.15pm. Matt again took the plaintiff to the medical centre, but at this time the plaintiff saw a different doctor. The plaintiff told the doctor he had been working on the diamond saw for the past two days. The doctor advised the plaintiff not to “push it too hard” and cleared him for normal duties. When the plaintiff returned to work he was placed on quality assurance duties. The quality assurance duties were easier than using the diamond saw. The work involved collecting concrete samples in a wheelbarrow, which required standing, as well as pushing the wheelbarrow. The plaintiff experienced ups and downs with the pain and mentioned his pain from time to time to both Mr Bridges and Mr Knott.

28. The plaintiff continued working on quality assurance for about three weeks prior to going back to his normal duties. The plaintiff did not go back to the doctor and was not taking any medication. The plaintiff was given medication at work a couple of times in that period. By the end of his first shift back on normal duties the plaintiff began to experience back pain again. He reported this to Mr Bridges.

29. On 2 April 2011 the plaintiff was married.

30. At about 9am on 7 April 2011 the plaintiff was working normal duties when he crouched down and could not get up. The plaintiff suffered significant pain at this time and felt that he could not stand up. The plaintiff eventually stood up and moved around for a while. Another worker, Peter Thompson, saw the plaintiff and knew that he had previously had an accident. The plaintiff told Mr Thompson that he was in a lot of pain and could not move. The plaintiff was sent to see Matt. The plaintiff was kept in the crew room all day until they could arrange for the plaintiff to see the usual doctor that workers were taken to. The plaintiff wanted to go and sit in his car but Matt told him that the bosses would not allow it. The plaintiff drove his own car to Bowral to see the defendant’s usual doctor, Dr Richardson. The plaintiff saw the doctor at about 3.30pm and again Matt accompanied him into the doctor’s room.

31. Dr Richardson put the plaintiff on light duties. He was told that he was not allowed to use the diamond saw and the doctor expressed displeasure at the work that he had been undertaking. The plaintiff continued to see Dr Richardson and over time she downgraded his duties further. The plaintiff was tasked with doing office work in the meantime.

32. At about this time, the plaintiff was having discussions with the defendant’s employees about what would happen to him and his work as a result of his injury. At this time the plaintiff was told by Mr Bridges “you have to deal with Workforce. Rocla don’t employ you, you are only on a contract”. As a result of this and other conversations, the plaintiff obtained a worker’s compensation claim form from Workforce, completed it and submitted it. The plaintiff then started dealing with someone from Allianz, the workers compensation insurer for Workforce. Allianz arranged payment for his medical appointments and commenced paying him the difference between what he was earning on light duties and what he was earning prior to the accident.

33. The plaintiff received a letter dated 14 April 2011 from Allianz acknowledging receipt of his workers compensation claim and allocating him a claim number to be used in all future correspondence. The letter included information as to the plaintiff’s rights and responsibilities and the NSW Workers Compensation Customer Service Charter. Those documents set out the plaintiff’s requirement to comply with an Injury Management Plan and to make all reasonable efforts to return to work with his pre-injury employer. The plaintiff described Allianz as taking care of everything. The plaintiff did not think that he needed to speak to anyone else about what he could do in response to his workers compensation claim.

34. On 28 April 2011 the plaintiff first consulted Dr Mobbs, Neurosurgeon, on referral from Dr Richardson.

35. On 18 May 2011 the plaintiff completed his last shift working at the defendant’s premises.

36. On 27 May 2011 the plaintiff underwent a micro-discectomy and laminotomy at L5/S1 performed by Dr Mobbs at Prince of Wales Private Hospital. Following the surgery the plaintiff remained off work.

37. In or about May or June 2011 the plaintiff’s mother was diagnosed with a tumour on her brain and her condition deteriorated rapidly. Shortly after that she was moved into a hospice.

38. At about the time of the plaintiff’s first spinal surgery on 27 May 2011, the plaintiff described himself as struggling both physically and emotionally and felt like “I was in a haze”. At about this time the plaintiff was trying to visit his mother as much as he could because he knew that she did not have long left to live. Driving to and from those visits was difficult as a result of the plaintiff’s back condition. He would have to stop for three or four breaks in a 90 minute drive so that he could ease his pain.

39. On 9 August 2011 an MRI scan of the plaintiff’s lumbar spine confirmed a recurrent disc herniation at L5/S1 on the left side.

40. On 9 September 2011 an investigator, James Maclean, attended the plaintiff’s home at the request of Allianz. Mr Maclean took a statement from the plaintiff in respect of his work for Workforce at the defendant’s premises. Mr Maclean typed the statement in the presence of the plaintiff, then printed it out, in order for it to be signed by the plaintiff on that day. The plaintiff described the statement being taken in the ordinary way, by Mr Maclean asking questions of the plaintiff about his work and then asking follow-up questions based on the answers given by him. The plaintiff described the statement as accurate, and as being close to his own words.

41. On the day Mr Maclean came to the plaintiff’s home, the plaintiff had undergone surgery once and his back pain had returned. The pain was radiating into his left leg. At about this time the plaintiff gave evidence that he was in really bad pain. At the time, his mother was in a hospice and not doing well. The plaintiff was pre-occupied with concern for his mother’s condition.

42. The plaintiff, in the Plaintiff’s Statement, described the Team Leaders of the defendant as being very competitive as to who could get the most sleepers produced on their shift. The workers were regularly told to work faster, at the expense of quality. The relevant duties of a worker would often be moved around if that was thought to make the process go faster. The need for speed of production was something regularly discussed at pre-shift meetings.

43. There was a 50/50 split between casuals and permanents working at the defendant’s premises. The plaintiff wanted to become permanent to ensure job security. The plaintiff described that if the employees of the defendant did not like a casual they would just ring the labour hire company and say they did not want them back. The plaintiff thought and observed that if a casual did not work as fast as they could, that they would just lose their job. The plaintiff also overheard this being discussed in the work place from time to time.

44. The plaintiff told the investigator that he saw a number of safety breaches about which nothing was said unless there were “big bosses around”. The plaintiff gave the investigator a number of examples. Relevant to the present case, the plaintiff said that the drains in the work area were often blocked because of concrete being washed down them, often leading to water lying on the ground. The ground in the shed was concrete with metal rails in different places and was often slippery. The plaintiff saw people trip on the old rails from time to time, and it was on one of the metal rails that the plaintiff slipped and fell.

45. On 15 September 2011 the plaintiff was reviewed by Dr Mobbs. The plaintiff reported the return of sciatic pain. Dr Mobbs recommended a repeat micro-discectomy.

46. On 19 September 2011 the plaintiff underwent the repeat micro-discectomy and laminotomy at L5/S1.

47. On 29 September 2011 the plaintiff was reviewed by Dr Mobbs. The plaintiff reported the return of pain after the second surgery.

48. In October 2011 the plaintiff’s mother passed away from cancer.

49. On 13 October 2011, the plaintiff returned to Dr Mobbs. The plaintiff reported continuing to experience low back pain. Dr Mobbs recommended an anterior lumbar interbody fusion.

50. On 19 December 2011 the plaintiff underwent a discectomy and anterior lumbar interbody fusion at L5/S1 performed by Dr Mobbs.

51. On 19 January 2012, the plaintiff was reviewed by Dr Mobbs. The plaintiff reported that his sciatic pain had improved but his back pain had not improved much.

52. On 10 February 2012 the plaintiff was reviewed by Dr Mobbs. The plaintiff reported experiencing left sided buttock pain.

53. On 26 April 2012 the plaintiff was reviewed by Dr Mobbs. The plaintiff was advised that he could not return to work involving repetitive bending and heavy lifting.

54. On 23 October 2012 Allianz commenced section 151Z Recovery Proceedings against the defendant in the Local Court. The Recovery Proceedings were later transferred to the District Court.

55. In about the period of June 2013 to September 2013 the plaintiff undertook traffic control courses that were arranged for him by Allianz. He undertook these courses because he had been told that he could not undertake work that involved heavy lifting. He found he enjoyed the work in the traffic control industry. The plaintiff was then employed as a Resource Co-Ordinator with Workforce International Pty Ltd, a related company to Workforce. His duties included co-ordination of traffic control crews in preparation of traffic control/management plans.

7. On 20 March 2014 the plaintiff received a letter from Allianz advising him that they had recently reviewed his workers compensation claim. The letter stated that the plaintiff had achieved a favourable return to health and a successful return to work. It further represented, “all payments of your outstanding entitlements to workers compensation benefits have been made. Based on a work capacity assessment which has been completed on your file, you have no ongoing entitlement to workers compensation benefits”. The letter stated that his claim would be finalised on 3 April 2014. The plaintiff accepted the statements in this letter as accurate. He had returned to work, was able to do the work he was doing and was in a financially superior position. The plaintiff understood that was the end of his workers compensation claim and that he could not make any further claim.

8. On 26 March 2014 the plaintiff resigned his employment with Workforce. He took up a position of Resource Co-Ordinator for Workforce Road Services based in their Woolgoolga office.

9. On 9 July 2014 a Consent Judgment was entered in the Recovery Proceedings in favour of the Workers Compensation Nominal Insurer on the basis that no further claim for indemnity could be sought.

10. In or about June 2017 the plaintiff was employed by Complete Staff Solutions as its National Traffic Manager. He remains in that employment. His duties include day to day running of the business, site inspections and preparation of traffic control/management plans.

11. In or about February 2018 the plaintiff received a phone call from a person introducing themselves as a private investigator. The investigator informed the plaintiff that he had been tasked with finding people who worked at the defendant’s premises in 2011. The investigator informed the plaintiff that he may have had some legal rights against the defendant. The investigator advised the plaintiff to contact his present solicitors to discuss the matter.

12. Until the investigator told the plaintiff that he might have rights against the defendant, he was unaware that he had a claim against them. The plaintiff understood that he had received everything he was entitled to from Allianz as a result of his workers compensation claim. The plaintiff was satisfied with the outcome of his workers compensation claim in that he got paid his weekly wage, his medical expenses were paid for and the workers compensation insurer assisted with his rehabilitation to find work which he could do and which subsequently turned out to be more lucrative for him.

13. The plaintiff made contact with his present solicitors within 24 hours. The plaintiff attended a consultation with CMC Lawyers on 13 March 2018. As a result of the consultation with his solicitor, the plaintiff was informed that he was entitled to lump sum benefits pursuant to sections 66 and 67 of the Workers Compensation Act1987. He subsequently made those claims and was paid compensation in respect of those applications.

14. In cross-examination it was suggested to the plaintiff that he knew at the time of the interview with Mr Maclean, that the investigator was exploring the defendant’s responsibility for his injury. The plaintiff did not accept that proposition stating that he believed that Allianz wanted to understand the circumstances in which he was hurt and how a similar accident could be prevented in the future.

15. The plaintiff accepted that the defendant was responsible for the conditions in which he worked. He accepted that the defendant’s employees told him what to do and that Workforce did not have much involvement in the day to day tasks he was required to perform. He was aware at the time of the interview that in his view, and in the view of other employees, that the defendant took safety shortcuts. He was aware that the drains were blocked and that the area in which he was required to work was slippery as a result of the presence of the water and the metal rails. He agreed that this was not a topic that anyone had raised with him or discussed with him prior to the interview with Mr Maclean. He was aware that those factors had caused his accident. He gave evidence that he thought that Workforce was responsible for his safety and he was unaware that he had a claim against the defendant.

16. The plaintiff gave evidence that he had never had a workers compensation claim prior to this and he had never been injured at work before. In his view, he was injured at work and therefore entitled to compensation. He accepted the proposition that all he had to prove was that he was injured at work in order to receive workers compensation. The plaintiff maintained in cross-examination that he was unaware of his additional rights in negligence against the defendant.

17. The plaintiff accepted that, with the benefit of hindsight, he should have consulted a solicitor. However, at the time he thought that they dealt with disputed cases of workers compensation, which was not his case. The plaintiff maintained that he believed that Allianz was giving him what he was entitled to.

Credit

67. The defendant, quite properly, did not make any submission in relation to the plaintiff’s credit. I formed the view that the plaintiff was a very genuine witness. He made appropriate concessions during the course of cross-examination. He gave his evidence simply and concisely, and was trying to do the best he could to tell the truth.

Relevant Law

68. Section 50C Limitation Act 1969 provides:

50C LIMITATION PERIOD FOR PERSONAL INJURY ACTIONS

(1) An action on a cause of action to which this Division applies is not maintainable if brought after the expiration of a limitation period of whichever of the following periods is the first to expire:

(a)    the "3 year post discoverability limitation period”, which is the period of 3 years running from and including the date on which the cause of action is discoverable by the plaintiff,

(b)    the "12 year long-stop limitation period”, which is the period of 12 years running from the time of the act or omission alleged to have resulted in the injury or death with which the claim is concerned.

Note: The 12 year long-stop limitation period can be extended by a court under Division 4 of Part 3.

(2) For the purposes of the application of the 3 year post discoverability limitation period to a survivor action, the cause of action is taken to be discoverable by the plaintiff at whichever is the earliest of the following times:

(a)    the date on which the cause of action is discoverable by the deceased if the cause of action is discoverable by the deceased more than 3 years before the death of the deceased,

(b)   the appointment of the plaintiff as the deceased's personal representative if the cause of action is discoverable by the plaintiff at or before the time of that appointment,

(c)    the date on which the cause of action is discoverable by the plaintiff if the cause of action is discoverable by the plaintiff after the appointment of the plaintiff as the deceased's personal representative.

(3)    For the purposes of a compensation to relatives action, the 12 year long-stop limitation period runs from the death of the deceased.

69. Section 50D Limitation Act 1969 provides:

50D DATE CAUSE OF ACTION IS DISCOVERABLE

(1)   For the purposes of this Division, a cause of action is

"discoverable" by a person on the first date that the person knows or ought to know of each of the following facts:

(a)    the fact that the injury or death concerned has occurred,

(b)    the fact that the injury or death was caused by the fault of the defendant,

(c)    in the case of injury, the fact that the injury was sufficiently serious to justify the bringing of an action on the cause of action.

(2)    A person "ought to know" of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.

(3)    In determining what a person knows or ought to have known, a court may have regard to the conduct and statements, oral or in writing, of the person.

(4)    To remove doubt, a compensation to relatives action is not discoverable before the date of death of the deceased.

70. These provisions were authoritatively considered in Baker-Morrison v State of New South Wales (2009) 74 NSWLR 454, from which the following propositions can be taken:

1. The defendant bears the onus of proof of proving the facts relevant to the limitation defence [14].

2. The requirements of section 50D(1)(b) and (c) that refer to “facts” are inter-related. If the facts are properly within the understanding in evaluation of a non-professional, the nature of the person’s knowledge will be different from that which incorporates information or opinion supplied by a professional, on the basis of the exercise professional expertise [26].

3. The use of the word “fact” in paragraphs (b) and (c) is used to describe a composite set of inferences or the result of an evaluation [27].

4. Since what is discoverable for the purposes of section 50C of the Act is the “cause of action”. The “fact” contemplated by section 50D(1)(b) of that Act is the relationship between the injury on the one hand and the fault of the defendant on the other, the relevant connection being one of causation [28].

5. The fault of the defendant referred to in section 50D(1)(b) of the Act is to be ascertained by reference to legal concepts, not moral blameworthiness so that, while there is no need for a plaintiff to be able to articulate a cause of action in terms of negligence, nuisance, breach of duty or otherwise, the key factors necessary to establish legal liability must be known [39].

6. Section 50D(1)(c) requires that the person have available to him or her relevant legal and medical information to allow an informed professional judgment to be made of the seriousness of the injury sufficient to justify the bringing of the proceedings [44].

7. In order to note whether an injury was sufficiently serious to justify the bringing of an action within the meaning of section 50D(1)(c) of the Act, a person must know not only that the injury was serious, but also, in approximate terms, whether that injury was sufficient to bring a person over any statutory thresholds that now exist [44].

8. The knowledge requirement is met if the person has a belief that the facts can be established on the balance of probabilities. The belief can be held on firm or shaky grounds. It is not necessary for the belief to be strong enough to satisfy a solicitor’s certification requirements under the relevant legislation [45].

9. Section 50D(2) is premised on an assumption that the person has not taken all reasonable steps to ascertain the facts, or a particular fact, requiring an assessment to be made of what would have been ascertained had such steps been taken [57].

10. In most circumstances, the step of instructing a solicitor will be sufficient for a prospective plaintiff to satisfy the element of taking “all reasonable steps” within the meaning of section 50D(2) of the Act [58].

11. In some circumstances there may be a question of whether the plaintiff’s instructions were adequate or whether other limitations prevented the solicitor from taking proper steps in a timely fashion [58].

12. The phrase ‘ought to have known’ means that the person should have inquired as to the fact. In this sense ‘should’ connotes a culpable omission by the person who should have known [59].

13. The expression ‘ought to know’ is identified by reference to what the putative plaintiff ‘would’ have found out, if he or she had taken all reasonable steps [59].

71. In Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167, the Court of Appeal decided that it was not sufficient for the purposes of section 50D(1)(b) that a person merely knows the facts necessary to establish the fault of the defendant. The defendant must also know that a defendant is, as a matter of law, liable to pay damages [38] – [49]. In that case, Mr Liddiard was employed by Brolton Industries Pty Limited (Brolton) to work at the premises of Bostik Australia Pty Ltd (Bostik). At the time of his injury, Mr Liddiard’s services were being provided to Bostik by Brolton pursuant to an arrangement of which Mr Liddiard was unaware. Mr Liddiard did not become aware of the arrangement until his solicitor was served with a statement prepared by Bostik’s manager of the site where he worked. The trial judge found that Mr Liddiard simply understood that he worked for Brolton and saw no relevance in Bostik’s role in the work he performed. The Court of Appeal upheld the trial judge’s finding that Mr Liddiard did not know the fact that the injury was caused by the fault of Bostik until after his solicitor received a copy of Mr Lynch’s statement which was within the three year discoverability period.

72. In State of New South Wales v Gillett [2012] NSWCA 83 a five member bench of the Court of Appeal upheld the correctness of Baker-Morrison. That case also referred to Bostik Australia Pty Ltd v Liddiard with approval. Whilst the main judgment was delivered by Beazley JA (as her Honour then was), Campbell JA expressed additional reasons for agreeing with her Honour, which were in turn accepted by McColl, Young and Whealy JJA. As to the requirements of section 50D(1)(b) and (c), Campbell JA succinctly stated at [131]:

For a person to be in a situation where he or she knows or ought to know that an injury was sufficiently serious to justify the bringing of an action on the cause of action, they would have to know (or be in a position where they ought to know) that they have sufficient prospects of recovering enough damages for it to be worthwhile litigating. That would require, at the least, knowledge (whether derived from the plaintiff’s own knowledge, from friends or acquaintances, or from professional advice) that the injury in question is one for which the law would hold the defendant liable in damages, and that the damages that could be recovered are large enough to be worth the time and trouble of suing. Thus knowledge of actionability is necessary before s50(1)(c) is satisfied. And, because it is involved in there being ‘fault’, actionability is likewise one of the ‘key factors necessary to establish liability’ that must be known before s50D(1)(b) is satisfied.

73. In Baggs v University of Sydney Union [2103] NSWCA 451, the plaintiff was wrongly advised by two solicitors that her claim relating to a fall down fire stairs in a building was against her employer, The University of Sydney, rather than against the defendant who was the occupier of the building in which she fell. Accordingly, she was advised that she should not decide to pursue an action until six months after her impending surgery, being a time when it was expected that her injuries would stabilise and after which her whole person impairment could be assessed. A 15% whole person impairment was required before she could pursue a work injury damages claim. The Court of Appeal held that there was no reason for the plaintiff to doubt the advice that she had been given and that it presented an insurmountable hurdle to her commencing a work injury damages claim until that advice was superseded.

Consideration

74. It was common ground that the plaintiff knew that he had suffered an injury on 7 March 2011 and that satisfies the requirements of section 50D(1)(a) of the Act.

75. In relation to section 50D(1)(b) the plaintiff was required to know or be in a position to know that he had a cause of action against the defendant. It is clear from the Plaintiff’s Statement that he knew of the key factors necessary to establish legal liability of the defendant. In other words, he knew that the defendant was morally blameworthy. I accept the plaintiff’s evidence that he did not know that he had a cause of action against the defendant as the occupier of the premises, until he was advised to seek legal advice by the private investigator in February 2018.

76. In relation to section 50D(1)(c) the plaintiff was required to know or be in a position to know that his injury was sufficiently serious to justify the bringing of an action. This involved a number of considerations.

77. First, I am satisfied that the plaintiff knew that his injury was serious because he had three separate surgeries on his back, and on 26 April 2012, Dr Mobbs advised him that he had been left with a life-long inability to perform heavy work.

78. Second, the plaintiff had to be aware that he had sufficient prospects of recovering a quantum of damages to make it worthwhile litigating. This involved a consideration of the application of section 151Z Workers Compensation Act 1987 to the plaintiff’s claim against the defendant, which entailed two considerations: first, the extent to which the responsibility for the injury would be apportioned between Workforce and the defendant, and second, if the possible apportionment to Workforce was significant, the availability of a work injury damages claim against Workforce.

79. Section 151Z provided a defence to the defendant in any claim against it, for any proportion of the plaintiff’s damage for which Workforce was responsible in negligence for which the plaintiff was guilty of contributory negligence. This involved some legal evaluation of the comparative fault to be attributed, if any, to Workforce and/or the plaintiff for the plaintiff’s injury. This may have required the assessment of evidence, other than the plaintiff’s instructions, such as witness statements from other workers or assessing the content of Workforce’s work health and safety video.

80. Section 151Z also provided a defence to the defendant and/or Workforce to the extension of any payments made by the workers’ compensation insurer. This would have involved making an inquiry as to the amount of these payments.

81. If Workforce was apportioned any fault for the injury, then the plaintiff’s claim would be reduced by any such percentage. To minimise the impact on the plaintiff’s recovery against the defendant, it was necessary for the plaintiff to be advised if he could bring a work injury damages claim against Workforce, in which he could recover the economic loss aspect of the apportioned amount. This involved, apart from the matters referred to in [79] above, the plaintiff satisfying the pre-requisite that he had suffered more than a 15% whole person impairment. In order to do so, the plaintiff required certification by a medical practitioner to this effect. It would also have been prudent to obtain evidence of a medical opinion as to the costs of any future medical treatment that might be required by the plaintiff, because the taking of a claim against the defendant and/or Workforce required the plaintiff to give up any workers’ compensation rights.

82. It was common ground that the plaintiff did not know of any of the relevant facts required by section 50D(1)(c) referred to in [79]-[81] above, for which he required the assistance of legal advice and/or medical opinion, until after he saw his present solicitors in March 2018.

83. I am satisfied that if the plaintiff had sought legal advice as to the facts required to be known by him pursuant to section 50D(1)(b) and (c) that he would have acquired the requisite knowledge. In my view, a solicitor would have advised the plaintiff that he had a cause of action against the defendant at the first consultation. It would have taken longer to give advice that the action was worth pursuing, because that depended upon gathering the required information on which to base that advice and perhaps briefing counsel to advise. In my view, it would be reasonable to allow a period of six months for a solicitor to give that advice.

84. This case turns on the question of whether, in all the circumstances, it was a reasonable step for the plaintiff to seek legal advice as to his rights to make a claim against the defendant before 22 June 2015, being the date three years before the proceedings were commenced. I must be satisfied on the balance of probabilities that the failure to seek legal advice was a culpable omission on the part of the plaintiff, because he should have made enquiries as to the requisite facts.

74. In my view, it was not a reasonable step required of the plaintiff to seek legal advice in the period of 7 March 2011 and 22 June 2015, for the reasons that follow.

75. After his injury, the plaintiff was told by Mr Bridges that he should look to Workforce for compensation, because they were his employer. When he contacted Workforce, he was given a compensation claim form to complete and his claim was accepted shortly thereafter. Accordingly, there was no reason for the plaintiff to doubt what he had been told by Mr Bridges.

76. On 14 April 2011, in the letter accepting his claim, the plaintiff was advised by Allianz of the following matters:

1. Workforce was required to participate and co-operate in the development of an Injury Management Plan and to provide the plaintiff with suitable work, if he continued to have an incapacity for work.

2. The plaintiff was required to participate and co-operate in the development of an Injury Management Plan, make all reasonable efforts to return to work with his pre-injury employer as soon as possible and that if he failed to comply with these obligations, after being requested by Allianz to do so, that any entitlement to weekly payments of compensation could be stopped.

3. Allianz represented that it was committed to providing the best service that it could to provide rapid resolution of the claim and ongoing support.

4. Allianz had a dedicated team of advisers to look after all aspects of the plaintiff’s claim, which was aimed at assisting him to get back to work and health.

5. Allianz would make any decision on the plaintiff’s claim fairly and promptly and in accordance with the relevant legislation.

6. Allianz would explain to the plaintiff any decision that it made in relation to his claim and explain his rights.

7. Allianz had a complaints procedure for any complaints that the plaintiff wished to make about his claim.

88. Nothing in that correspondence advised the plaintiff to get legal advice or that it would be prudent to do so.

89. The plaintiff co-operated with Workforce and Allianz in the spirit of that correspondence and in compliance with the relevant legislation. His medical expenses and weekly compensation were paid. He was offered rehabilitation services, which he accepted and resulted in him being retrained for lighter, but more remunerative work. He was offered a position by Workforce, with a related company, to perform suitable duties. The acceptance of that offer required the plaintiff to relocate with his family from Moss Vale to Woolgoolga.

90. On 20 March 2014 the plaintiff was advised that his workers’ compensation file would be closed because he had achieved a successful return to work and all of his outstanding entitlements to weekly compensation had been paid. The plaintiff accepted the truth of that advice from Allianz, because those matters were in fact true. The plaintiff was advised to contact Allianz or Workforce only if he was currently unfit for work or not working in a position with suitable duties. Neither of those conditions applied to the plaintiff. The plaintiff was not advised to seek legal advice about any other entitlements that he may have against anyone, including his rights to compensation from Workforce pursuant to section 66 and 67 Workers Compensation Act 1987.

91. The circumstances of this case can and should be distinguished from a case where a putative plaintiff has a need to pursue a case and does not have an alternative remedy. In the present case, the plaintiff was not looking for a claim against the defendant, or an alternative claim against Workforce, because he was receiving significant benefits as a result of making his workers compensation claim. He was satisfied with those benefits because on the information that he had from Mr Bridges and Allianz, he was receiving everything that he was entitled to.

92. The plaintiff was never advised by anyone to seek legal advice. The concepts of occupier’s liability and/or work injury damages are legal constructs and not matters about which a lay person can reasonably be expected to know. The plaintiff knew, as could be reasonably expected, that he had a claim of some sort. When he enquired of the employees of the defendant they pointed him in the direction of Workforce, to make a workers’ compensation claim. This corresponded with the plaintiff’s own state of knowledge that he had a no fault claim because he was injured at work.

93. The plaintiff was also concerned at the time before and after his injury, not to cause problems in his relationship with the defendant because he wanted to become a permanent employee of the defendant. On the facts, the plaintiff acted to his detriment in a number of respects to further this desire, including returning to work on the day after his injury, working on the diamond saw when he was unfit to do so, allowing the defendant’s safety officer to be present during his medical examinations and returning to full duties when the doctor had advised him ‘not to push it too hard’. These matters reflected the apparent strength of his desire to become a permanent employee and it was therefore unlikely that he had contemplated a claim against the defendant.

Conclusion

94. The defendant has failed to establish the limitations defence on the balance of probabilities.

95. The plaintiff is entitled to a judgment in his favour in accordance with the Consent Order filed in court on 2 September 2019.

Orders

96. The orders I make are as follows:

1. Verdict for the plaintiff in the sum of $282,411.63.

2. The defendant is to pay the plaintiff’s costs of the proceedings on the ordinary basis.

3. In the event that any party seeks a different cost order, please notify my Associate within 14 days.

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Decision last updated: 01 November 2019