Butler v Ottoway Engineering Pty Limited

[2018] NSWDC 305

District Court

New South Wales

Medium Neutral Citation:	Butler v Ottoway Engineering Pty Limited [2018] NSWDC 305
Hearing dates:	22 October 2018
Date of orders:	24 October 2018
Decision date:	24 October 2018
Jurisdiction:	Civil
Before:	Sidis ADCJ
Decision:	Motion granted
Catchwords:	Limitations: Extension of time under s.151D Workers Compensation Act 1987; lengthy delay; no prejudice
Legislation Cited:	Workers Compensation Act 1987 Workplace Injury Management Act 1998
Category:	Procedural and other rulings
Parties:	Robert John Butler (Applicant) Ottoway Engineering Pty Limited (Defendant)
Representation:	Counsel: Mr S McMahon (Applicant) Mr Rickard (Defendant)   Solicitors: Turner Freeman Lawyers (Applicant) Stiles Lawyers (Defendant)
File Number(s):	2018/213028
Publication restriction:	None

Judgment

1. The applicant in this matter sought an order pursuant to s 151D of the Workers Compensation Act 1987 for an extension of time within which to bring a claim for work injury damages resulting from a work place injury that he suffered on 16 August 2007.

2. The period of time between the date of injury and the current application initially appeared to present the court with a degree of difficulty. However, the defendant informed the court that it neither opposed nor consented to the orders sought and presented no evidence in opposition to the application.

3. The injury suffered by the applicant in August 2007 affected his lumbar spine. His employer’s workers compensation insurer met his medical expenses and other claims from a date shortly after his injury to the current date.

4. The applicant was initially treated conservatively. In June 2008 he consulted his solicitors who advised him of the three-year limitation period for the commencement of any common law claim against his employer and of the threshold requirements of the Act. At the time this advice was provided the applicant did not meet those threshold requirements.

5. Treatment continued and on 10 December 2008 the applicant underwent the first of several surgical procedures.

6. An assessment undertaken in September 2009 resulted in a finding of whole person impairment in the degree of 11%, insufficient to qualify the applicant for work injury damages. The applicant received lump sum compensation on the basis of that assessment.

7. There was evidence that by June 2010 the applicant’s condition became worse and the deterioration continued. His treating medical practitioners recommended conservative treatment until April 2012 when further surgery was performed.

8. This surgery was not successful in constraining the applicant’s L4/5 disc prolapse. He consulted medical advisers once more, receiving advice on weight loss, conservative treatment, and pain management. Ultimately he was advised to undergo surgery for fusion of the discs in May 2015.

9. Throughout this period the applicant consulted his solicitors from time to time and received advice that was directed to ensuring that his condition had reached the appropriate level of stability and that he reached the threshold that would permit him to bring a claim.

10. It was not until July 2016, when the insurer accepted an assessment of whole person impairment to a degree of 27%, that the option to bring a claim became available to the applicant. In August 2016, he instructed his solicitors to take the necessary steps to pursue a claim.

11. The strictures of the Workplace Injury Management Act 1998 made it necessary that expert and lay evidence be gathered before the issue of the pre-filing statement in March 2018.

12. Proceedings in the District Court were commenced in July 2008.

13. The authorities that deal with applications to commence proceedings outside allowable limitation periods are replete with references to the purposes of limitation provisions in protecting defendants from the injustice of dealing with stale claims. However, it must also be recognised that one of the purposes of those provisions must be to assist claimants who are genuinely disadvantages by the limits imposed.

14. One such circumstance, as in this case, arises where a claimant’s condition, originally considered to be insufficiently serious to qualify for compensation, deteriorates.

15. There was evidence before the court that the applicant’s claim was viable and of some value to him if the assertions of negligence were made out.

16. Taking these considerations into account and in the absence of complaint by the defendant of actual prejudice or of inability to secure a fair trial, I was satisfied that justice in this case requires that the leave sought by the applicant be granted.

ORDERS

1. That pursuant to s 151D of the Workers Compensation Act 1987, the time for the commencement of the proceedings against the Defendant be extended to 11 July 2018 nunc pro tunc.

2. Costs of the motion will be costs in the cause.

3. The affidavit evidence filed in support of the application is returned.

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Decision last updated: 24 October 2018