Chand v Prix Car Services Pty Ltd

[2013] NSWDC 149

District Court

New South Wales

Medium Neutral Citation:

Chand v Prix Car Services Pty Ltd [2013] NSWDC 149

Hearing dates:

26 July & 16 August 2013

Decision date:

23 August 2013

Jurisdiction:

Civil

Before:

Levy SC DCJ

Decision:

1.Pursuant to s 151D of the Workers Compensation Act 1987, leave is granted to the plaintiff to file a statement of claim in the form that is annexed to the affidavit of the plaintiff's solicitor sworn on 11 April 2013, arising from his workplace injury identified as having occurred on 6 May 2008;

2.The defendant is to pay the plaintiff's costs of the summons on the ordinary basis unless otherwise ordered;

3.The exhibits may be returned;

4.Liberty to apply on 7 days notice if further orders are required;

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

LIMITATION OF ACTIONS - Application by plaintiff for leave to proceed with claim out of time - whether delay satisfactorily explained - whether presumptive prejudice contraindicates leave in this case

Legislation Cited:

Workers Compensation Act 1987, s 151D

Cases Cited:

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
ITEK Graphix Pty Ltd v Elliott [2002] NSWC 104; (2002) 54 NSWLR 207
Smith v Grant [2006] NSWCA 244; (2006) 67 NSWLR 735

Category:

Interlocutory applications

Parties:

Michael Chand (Plaintiff)
Prix Car Services Pty Ltd (Defendant)

Representation:

Mr D Morgan (Plaintiff)
Mr R Hourigan (Defendant)
Paramount Lawyers (Plaintiff)
DLA Piper (Defendant)

File Number(s):

2013/120208

Publication restriction:

None

Judgment

Table of Contents

Summons	[1]
Issues	[2] - [3]
Evidence and procedural history	[4] - [7]
Facts	[8] - [16]
Issue 1 - Whether delay satisfactorily explained	[17] - [21]
Issue 2 - Whether relevant prejudice	[22] - [26]
Disposition	[27]
Costs	[28]
Orders	[29]

Summons

1. By summons filed on 18 April 2013, the plaintiff, Michael Chand, seeks leave pursuant to s 151D of the Workers Compensation Act 1987, to commence proceedings against his former employer, the defendant, Prix Car Services Pty Limited, to claim damages for personal injury due to alleged negligence in the workplace.

Issues

1. The plaintiff is not entitled to bring a claim of the present kind without the leave of the court: s 151D of the Workers Compensation Act 1987. In order to obtain leave, the plaintiff must provide a full and satisfactory explanation for the delay in commencing the proceedings.

1. In resisting the plaintiff's application, the defendant argued that the plaintiff's delay in commencing the proceedings had not been satisfactorily explained, and the claimed presumptive prejudice due to the delay, should result in the plaintiff being denied leave to proceed.

Evidence and procedural history

1. At the initial hearing of the summons on 26 July 2013, the plaintiff relied upon his own affidavit sworn on 19 June 2013, together with the affidavit of his solicitor, Jason Di Michiel, sworn on 11 April 2013, as supplemented by a medical report dated 12 November 2010 from the treating general practitioner, Dr R Pillai. A chronology of non-controversial events was also relied upon (Exhibit "C"), together with a bundle of other relevant documents: Exhibit "A".

1. Before the hearing commenced on 26 July 2013, it was indicated to the plaintiff's solicitor that the plaintiff would not be required for cross-examination on his affidavit. On that basis the plaintiff, who was at court for that purpose, had been sent home because he was experiencing injury-related discomfort.

1. In the course of opening addresses at the initial hearing, the counsel for the defendant then proceeded to elaborate upon the matters in issue. This resulted in an application by the plaintiff for an adjournment in order for the plaintiff to be called to give oral evidence on matters concerning aspects of the delay in the commencement of the proceedings. That adjournment was granted, with costs reserved.

1. At the resumed hearing on 16 August 2013, as a result of agreements reached between the parties, further affidavits were read. These were from the plaintiff, sworn on 30 July 2013, and from his solicitor, sworn on 2 August 2013. The plaintiff was no longer required to give oral evidence. The matter then proceeded to final arguments on the basis of the described documents.

Facts

1. The plaintiff is presently aged 59 years. In 2000, the plaintiff commenced casual employment with the defendant. In 2002, he became a full-time employee of the defendant. Before the plaintiff became aware of the injuries that underpin these proceedings, he had not made any previous workers' compensation claims.

1. For the purposes of these proceedings, the claimed work-related injuries can be conveniently described as alleged repetition strains. These are claimed to have arisen as a result of the nature and conditions of the plaintiff's work with the defendant that required him to repetitively handle and fit automotive components during his employment.

1. On 25 May 2002, the plaintiff consulted his doctor in respect of an injured right shoulder that occurred whilst he was pushing a heavy jig in the course of his employment with the defendant. Between 25 May 2002 and 28 September 2009, the plaintiff remained under the care of his general practitioner in respect of work-related injuries. On 6 May 2008, the plaintiff ceased his employment with the defendant on account of injury claimed to be due to the nature and conditions of his employment. Since then he has remained under the medical care of his treating general practitioner.

1. In September 2009, the plaintiff consulted a psychologist to assist him in coping with his personal difficulties arising from the effects of his injuries. That psychologist suggested to the plaintiff that he obtain legal advice in respect of his situation.

1. On 30 September 2009, after acting on that suggestion, the plaintiff consulted his present solicitors for advice, following which he instructed them to pursue the present claim. This was the first occasion on which the plaintiff had sought legal advice in respect of his injuries the subject of the present claim. From that time until the present time, the plaintiff has relied upon his solicitors to advance the present claim as he had no personal understanding of the procedural requirements for such matters.

1. After his solicitors became involved, the plaintiff was sent for a number of medico-legal assessments. One such assessment was an AMS assessment that took place on 20 January 2012 at the request of the Workers' Compensation Commission. That assessment determined that the plaintiff suffered a whole person impairment of 23 per cent in respect of work-related injuries to his left heel, lumbar spine and both shoulders. That assessment was communicated on 13 March 2012.

1. The affidavits of the plaintiff's solicitor, and the documents forming Exhibit "A", have charted the chronological procedural progress of the plaintiff's claim through to the filing stage.

1. The defendant has argued that inordinate delay has been incurred in that process. Contrary to that submission, on my reading of the chronology of events and the documentary and affidavit materials, there is nothing in those materials to indicate dilatoriness on the part of the plaintiff's solicitors in advancing and processing the plaintiff's claim.

1. The legislative framework within which the plaintiff's claim had to be investigated and presented by the plaintiff's solicitor is complex, and the required tasks inevitably took time. In my view, the hindsight criticism by the defendant of that time taken for those preparatory tasks, whilst convenient for the purposes of argument, is in my view unreasonably made, and is not supported on a prospective view of the events involved in the required preparation.

Issue 1 - Whether delay satisfactorily explained

1. On 13 March 2012, when the plaintiff achieved an assessment of whole person impairment, this permitted his claim to proceed. Until that time, he had no arguable claim for which he needed to seek leave to proceed. I find that any delay prior to 13 March 2103 is therefore satisfactorily explained.

1. For the purpose of this application, it has been agreed between the parties that in a procedural sense, time ceased to run on 15 October 2012 for limitation purposes. However, the defendant contends that the delay between 13 March 2012 and 15 October 2012 requires satisfactory explanation.

1. In my view, the contended delay in that period was neither substantial nor inordinate. There was no dilatory conduct on the part of the plaintiff or his solicitor either before or during that period. The plaintiff had consulted his solicitor promptly. The solicitor then went about fulfilling the complicated procedural requirements of the legislation, which took the time it did, as is evident within the chronology of events and documents tendered. In my view that is a full and satisfactory explanation for the contentious component of the delay: Smith v Grant [2006] NSWCA 244; (2006) 67 NSWLR 735, at [60].

1. In such circumstances, an application to extend the time for filing a claim such as this should be exercised according to what is fair and just in the circumstances: s 151D(2) of the Workers Compensation Act 1987: ITEK Graphix Pty Ltd v Elliott [2002] NSWC 104; (2002) 54 NSWLR 207, at [87].

1. In view of the absence of fault or dilatoriness on the part of the plaintiff or his solicitor, I consider that subject to a consideration of whether the defendant would be prejudiced by the exercise of discretion in favour of granting the plaintiff leave to proceed, it is fair and just that the plaintiff should be granted such leave.

Issue 2 - Whether relevant prejudice

1. On the prejudice issue, the defendant relies only upon the presumptive prejudice that is inherent in delay, as is the case in any litigation: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.

1. In support of its argument in that regard, the defendant points to the period between the plaintiff's commencement of casual employment with the defendant in 2000 and the period until filing in 2013, a total span of 13 years, to argue presumptive prejudice arising from the extent of that period requires that the plaintiff be denied the limitation relief he seeks.

1. In my view that analysis proceeds upon an incorrect premise. Not all of that period is relevant to the claim the plaintiff seeks to make. In this case the presumptive prejudice is not of such a character as to require the plaintiff be denied the relief he seeks. Although the recognition of injury to the plaintiff emerged late in his period of employment, the underlying facts giving rise to the claim do not seem to be complex. On 28 April 2010 the plaintiff claimed lump sum workers' compensation benefits due to him as a result of the subject injuries. That aspect of his claim was resolved in his favour on 29 April 2011.

1. The required investigations concerning the system of work in which the plaintiff was engaged and the causal connection between that work and the claimed injury were very likely to have been undertaken in the course of the defendant's assessment of it's liability to the plaintiff for payment of that lump sum. There is no evidence that would suggest significant or actual prejudice to the defendant in the circumstances of that claim, or this claim, by the plaintiff.

1. Accordingly, in the circumstances of this case, where no actual prejudice to the defendant has been shown to be apparent, and where the plaintiff is without fault in causing the delay in bringing his proceedings, the lifting of the limitation bar to enable the claim to proceed and thereby exposing the defendant to a liability it may otherwise have thought had ended, is the lesser evil compared to depriving the blameless plaintiff of the claimed right of action: Brisbane South Regional Health Authority v Taylor, per McHugh J, at page 555. The prescriptive prejudice argued by the defendant and which was identified as being of a "moderate" order, has to be evaluated in that light.

Disposition

1. For the foregoing reasons, I consider that the plaintiff is entitled to a grant of leave to enable him to proceed with the subject claim.

Costs

1. The plaintiff has succeeded in his application for leave to proceed with his claim. Whilst an application for leave to the court was required, it was nevertheless compelling, and it could have been consented to by the defendant without incurring substantial legal costs in opposing the application. In those circumstances, I consider that the defendant should pay the plaintiff's costs of the summons on the ordinary basis, unless otherwise ordered.

Orders

1. I make the following orders:

(1) Pursuant to s 151D of the Workers Compensation Act 1987, leave is granted to the plaintiff to file a statement of claim in the form that is annexed to the affidavit of the plaintiff's solicitor sworn on 11 April 2013, arising from his workplace injury identified as having occurred on 6 May 2008;

(2)   The defendant is to pay the plaintiff's costs of the summons on the ordinary basis unless otherwise ordered;

(3)   The exhibits may be returned;

(4)   Liberty to apply on 7 days notice if further orders are required.

Decision last updated: 23 August 2013