Cipriano v Sew Eurodrive Pty Ltd

[2016] NSWSC 1630

Supreme Court

New South Wales

Medium Neutral Citation:	Cipriano v Sew Eurodrive Pty Ltd [2016] NSWSC 1630
Hearing dates:	3, 4 November 2016
Date of orders:	18 November 2016
Decision date:	18 November 2016
Jurisdiction:	Common Law
Before:	Fagan J
Decision:	1. The summons is dismissed. 2. The plaintiff is to pay the defendant’s costs of the summons.
Catchwords:	WORKERS COMPENSATION – application for leave to revoke election to receive permanent loss compensation – whether no reasonable cause to believe further deterioration would occur – Workers Compensation Act 1987 (NSW), s 151A WORKERS COMPENSATION – limitation period – extension of time – claim 19 years out of time – prejudice to defendant – whether delay made the chances of a fair trial unlikely – Workers Compensation Act 1987 (NSW), s 151D
Legislation Cited:	Motor Accidents Act 1988 (NSW) Workers Compensation Act 1987 (NSW) Workers Compensation Legislation Amendment Act 2001 (NSW) Workers Compensation Legislation Further Amendment Act 2001 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Cases Cited:	Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465 Corcoran v Tyre Marketers Australia [2001] NSWCA 300 Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104 New South Wales v Taylor (2001) 204 CLR 461; [2001] HCA 15 Roads and Traffic Authority v Malcolm (1996) 13 NSWCCR 272 Saad v J Robins & Sons Pty Limited [2003] NSWCA 87 Salido v Nominal Defendant (1993) 32 NSWLR 524
Category:	Principal judgment
Parties:	Anthony Cipriano (Plaintiff) Sew Eurodrive Pty Ltd (Defendant)
Representation:	Counsel: Ms Elizabeth Welsh (Plaintiff) Mr Paul Stockley (Defendant)   Solicitors: Mr Bandeli Hagipantelis, Brydens Compensation Lawyers (Plaintiff) Mr Stephen Lee, Lee Legal Group (Defendant)
File Number(s):	2015/294920

Judgment

1. The plaintiff was an employee of the defendant when on 1 October 1994 he suffered an injury to his lumbar spine. The injury was sustained either as he bent over to commence lifting an electric motor or a component, or when he was actually lifting an electric motor. This occurred in the course of the plaintiff’s duties as a process worker in the defendant’s workshop at Wetherill Park in metropolitan Sydney. The plaintiff was 19 years of age at the time.

2. By summons filed 9 October 2015 the plaintiff seeks leave pursuant to s 151A(5) of the Workers Compensation Act 1987 (NSW) (“the Act”) to revoke an election he made on 21 April 1997 to receive permanent loss compensation for his injury, as provided for under the Act. If leave is granted to revoke then he seeks further leave pursuant to s 151D to bring an action against the defendant at common law, out of time, for damages for negligence.

The plaintiff’s election for statutory compensation

3. As in force in April 1997, s 151A required the plaintiff to make an election between alternate claims he might pursue in respect of a workplace injury. The relevant subsections were in these terms:

“(2) A person to whom compensation is payable under this Act in respect of an injury is not entitled to both:

(a)   permanent loss compensation in respect of the injury, and

(b)   damages in respect of the injury from the employer liable to pay that compensation,

but is required to elect whether to claim that permanent loss compensation or those damages.

(3) The person makes that election:

(a)   …

(b)   by accepting payment of that permanent loss compensation (in which case the person ceases to be entitled to recover damages in respect of the injury).

(4) An election is irrevocable, except that an election to claim permanent loss compensation may be revoked with the leave of the court given in accordance with this section.

(5) If:

(a)   a person elects to claim permanent loss compensation in respect of an injury; and

(b)   after the election is made, the injury causes a further material deterioration in the person's medical condition that, had it existed at the time of the election, would have entitled the person to additional permanent loss compensation; and

(c)   at the time of the election, there was no reasonable cause to believe that the further deterioration would occur,

the person may, with the leave of the court and on such terms (if any) as the court thinks fit, revoke the election and commence proceedings in the court for the recovery of damages in respect of the injury.”

4. The reference to “permanent loss compensation” in s 151A is to compensation under Div 4 of Pt 3 of the Act entitled “Compensation for non-economic loss”, containing ss 65 – 73, as in force at April 1997. The Table to that Division, appearing under s 73, listed categories of injuries and impairments and corresponding percentages of a “maximum amount payable”. One of the listed categories was “permanent impairment of the back” for which 0% to 60% of the maximum amount was specified. Another category was “loss of either leg above the knee” for which 75% was specified.

5. In s 65(1) the meaning of “loss” was expanded as follows:

“65(1) In this Division:

“loss”, in relation to a thing, means:

(a) the loss of that thing; or

(b) the permanent loss of the use, or of the efficient use, of that thing.”

6. The “maximum amount” was fixed by s 66(1) at $132,300. For multiple categories of loss, the limit payable under a summation of all amounts derived by application of categories and their corresponding percentages in the Table was fixed at $160,950: s 66(2). These maxima were, by force of s 66(3), adjustable under Div 6 of Pt 3. Division 6 enacted a regime of indexation by reference to award rates of pay: ss 79 – 82. Section 67 provided for additional compensation for pain and suffering up to a maximum of $66,200.

7. The Act was substantially amended in 2001. The Workers Compensation Legislation Amendment Act 2001 (NSW) (“the 2001 Amending Act”) effectively replaced Div 4 of Pt 3 with a scheme for individualised medical assessment of the degree of impairment of a claimant, in lieu of the Table of injuries and corresponding percentages. Further amendments were made by the Workers Compensation Legislation Further Amendment Act 2001 (NSW) (“the 2001 Further Amending Act”). This act replaced s 151A, as quoted at [3] above, with a newly worded section.

8. Schedule 6 of the Act as it stood after commencement of the 2001 Amending Act included Pt 18C, comprising transitional and saving provisions. Clause 2 of Pt 18C provided that the Act should apply to an existing claim (that is, a claim for compensation which had been made before the commencement on 1 August 1998 of s 250 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW)) as if the amendments effected by the 2001 Amending Act had not been made. Hence, after the introduction in 2001 of the new regime for individual medical assessment of permanent impairment, the Table of impairments and percentages as described at [4] – [6] above continued to govern the plaintiff’s claim for permanent impairment compensation.

9. By Sch 4 of the 2001 Further Amending Act a new cl 9 was inserted in Pt 18C of Sch 6. This had the effect that, in relation to a person who had elected to claim permanent loss compensation under s 151A before the commencement of the 2001 Further Amending Act (such as the plaintiff), the amendment to s 151A would be inapplicable. Part 18C of Sch 6 of the Act in its current form, as applicable to the determination of the summons now before the Court, continues to provide that s 151A in the form quoted at [3] governs the plaintiff’s rights with respect to election and revocation. Those transitional provisions also have the effect that if leave should be granted to the plaintiff under s 151A to revoke his election and if leave to commence proceedings out of time should be granted under s 151D then the provisions which would govern the plaintiff’s claim for damages at common law would be those which were in force in the Act at the time he made his election on 21 April 1997.

Plaintiff’s work accident and election for permanent loss compensation

10. The incident on 1 October 1994 was described by the plaintiff in his Employee’s Report of Injury, signed and dated 18 October 1994, in these terms:

“As I always did, I bent down to pick up parts to be cleaned, but when I did this I felt as if I had been poked in the back. It got worse.”

11. In his affidavit sworn 7 October 2015, read in support of the summons, the plaintiff described the incident differently:

“I had to lift an engine and gearbox component which I believe was called a T80. It was about a metre long and it was about 30 centimetres wide. It was made of steel and filled with oil. It was extremely heavy. I estimate that it weighed around 50 kilograms. I bent over and picked it up. I did not keep my back straight. I had never been told that I should do that. I held either end in each hand and I lifted. As I did so I felt a sharp pain in my low back. At the time I was taking the component to the wash bay which involved walking approximately 10 metres. That is something that I had to do on each occasion that I lifted one of these components which was to be serviced. I managed to get the T80 component to the wash bay and I put down.”

12. The plaintiff has deposed that he was off work for two weeks after this incident, under medical certification. He then returned to work on light duties. He was unable to return to his original duties because of back pain and his employment was terminated in about October 1995. The plaintiff received permanent loss compensation on 21 April 1997, calculated on the basis of 10% impairment of his back, 10% loss of use of his left leg at or above the knee and $12,000 in respect of pain and suffering. Acceptance of this compensation constituted his election, for the purposes of s 151A subss (2), (3)(b) and (4).

The principal issue on the application to revoke the election

13. Since the plaintiff made this election the injury has caused a further material deterioration in his medical condition. Whether he has made out a case for revocation of the election will turn upon whether, at the time the election was made, “there was no reasonable cause to believe that the further deterioration would occur”: s 151A(5)(c). On that issue, “it is the court's view of all the evidence and not the injured person's belief, reasonable or otherwise, that is decisive”: New South Wales v Taylor (2001) 204 CLR 461; [2001] HCA 15 at [13].

14. The issue is a medical one. The plaintiff has not adduced expert medical opinion directly to address the question whether, as at 21 April 1997, it would or would not have been reasonable to believe that the plaintiff’s condition would further deteriorate as it has, on the basis of what was known at the time he made his election. The Court must therefore form its view on this issue upon the basis of medical assessments of the plaintiff which have been made over the whole course of his medical history from 1 October 1994 up to and continuing through the worsening of his condition which has led to the present application. Particular attention will have to be given to the findings from clinical examinations and radiological studies undertaken up to the date of the election.

Diagnosis and prognosis of plaintiff’s injury at 21 April 1997

15. In the following extracts from medical reports dated prior to 21 April 1997, emphasis has been added to passages which are of particular relevance to the application of s 151A(5)(c).

16. A computed tomography (CT) scan of the plaintiff’s lumbar spine on 4 January 1995 showed the following, according to the report of Dr Lawler, radiologist:

“At the L5-S1 level, there is a small left paracentral disc protrusion.

This slightly indents the thecal sac but the L5 nerve roots exit well above this.

No other abnormalities are seen.”

17. On 9 March 1995 a myelogram CT scan was performed on the lumbar spine, with the injection of contrast material. This was reported upon as follows by Dr Hammond, radiologist:

“This examination confirms a broad based protrusion of the annular disc material of the lumbosacral junction impinging on the thecal sac and displacing the left S1 descending nerve root into a posterior position within the spinal canal.”

18. “S1” is an abbreviation for the sacral spinal nerve 1 which originates from the spinal column at the first body of the sacrum. It is one of the nerves which innervate muscle groups of the lower limbs. The thecal sac is the membranous sheath that surrounds the spinal cord.

19. On the basis of these radiological findings, on 3 April 1995 Dr Kwok, orthopaedic surgeon, “offered [the plaintiff] surgical resection with decompression of nerve root”. That is, intervention to relieve impingement of the L5-S1 disc on the root of the nerve emanating from the intervertebral space, on the left side. Dr Kwok explained to the plaintiff “the risks and benefits” of the procedure. The plaintiff did not agree to have it carried out.

20. On 30 June 1995 the plaintiff consulted Dr Sheehy, a neurosurgeon practising at St Vincent’s Hospital Darlinghurst. Dr Sheehy reported in these terms:

“[In early October 1994, when lifting, the plaintiff] developed for the first time, a severe attack of pain in the low back and pain radiating into his left buttock and posterior thigh and calf. The pain has never radiated below the mid-calf. He has had a variety of treatments including rest, physiotherapy and various medications and the pain persists. If anything, he complains of an increasing level of pain in the left buttock and posterior thigh recently. The low back pain is considerably improved.

…

The lumbar CT Scan shows a focal disruption of the L5/S1 disc centrally and to the left with displacement of the S1 nerve root. I feel that the best management option at this point is decompression of his S1 nerve root. I have informed him what this would entail … .”

21. The plaintiff still did not agree to undergo decompression of the nerve root. On 11 September 1995 he was clinically examined by Dr Griffith, a consultant surgeon. Dr Griffith reported on 21 September 1995 to the defendant’s workers compensation insurer. He reviewed radiological and other reports including those referred to above. The history provided by the plaintiff to Dr Griffith included that “in spite of his radiological findings he continues to improve”.

22. However Dr Griffith’s prognosis was that the nerve root compression (S1) was “relatively unlikely to improve further in the absence of decompressive surgery”. Whilst refusal to undergo this procedure for the time being appeared reasonable to Dr Griffith, he regarded the surgery as “a fallback option to be performed when and if he finds the pain intolerable”. The doctor’s significant conclusions were as follows:

“I do not believe his overall state of low back pain and sciatica will improve significantly in the presence of ongoing nerve root compression such as that present. Were surgery to be performed he may anticipate relief of the sciatic pain with 90 – 95% certainty, and 50 – 60% relief of the low back pain owing to persistence of a damaged disc even after decompression. He may well be able to return to normal duties.

A further complicating factor is that persistent nerve root compression is associated with nutritional and structural changes in the nerve and may lead to permanent damage over time.”

23. In a supplementary report dated 30 October 1995 Dr Griffith informed the defendant’s insurer of his concern that the plaintiff should not undertake duties involving lifting:

“Even lifting at this level [up to 15 kg] is liable to aggravate his prolapsed lumbosacral disc.

The disc degeneration/protrusion with associated left S1 nerve root compression is the result of a structural injury to the lumbosacral disc and is a permanent derangement; exposing it to continued major stress, and in particular, lifting whilst stooped or crouched and twisting simultaneously are the activities particularly liable to produce further aggravation if not additional prolapse.”

24. Dr Sheehy reviewed the plaintiff again on 20 November 1995. The plaintiff reported his symptoms as “about the same” as when last seen by the doctor in July. Dr Sheehy proposed that “in view of the persistence of his symptoms” an MRI (magnetic resonance imaging) scan be undertaken to confirm the compression of the S1 nerve root, followed by decompression surgery if such confirmation should appear on the MRI. The scan was done on 5 December 1995. The radiologist’s report included the following:

“… there is signal loss in the L5-S1 disc with a sizable posterior disc protrusion.

…

At L5-S1 there is a sizable left paracentral disc protrusion. … [T]here is impingement and effacement of the theca on the left, with depression of the intrathecal S1 nerve root.”

25. Having seen this MRI report, Dr Sheehy on 18 December 1995 expressed the view that decompression should be offered to the plaintiff and would “very likely … significantly improve his referred leg symptoms”.

26. According to a letter from Dr Jude Ng dated 24 January 1996, the plaintiff by this date considered his condition had worsened, that he was unable to cope with the work duties allocated to him and was “keen to go ahead with ‘surgical cure’ by the neurosurgeon”. After a further review the same day Dr Sheehy referred to the change seen on the MRI scan of 5 December 1995 as “mild-to-moderate” and stated:

“I am concerned that he has been symptomatic though for a long period of time and I have grave doubts whether any surgical intervention would enable him to return to his pre-accident employment.”

27. An orthopaedic surgeon, Dr Bentivoglio, examined the plaintiff and reviewed his past radiological studies on 20 March 1996. He expressed these conclusions with respect to the plaintiff’s future:

“This gentleman will always have to be careful with bending and twisting movements of his back and will probably only ever be capable of performing sedentary type duties. … I would assess that he has a permanent loss of efficient use of his back of 20% and a permanent loss of use of his left lower limb at or above the knee region of 10% as a result of referred symptoms into his left lower limb. His prognosis still remains somewhat in doubt.”

28. Dr Minogue, a consultant occupational physician, examined the plaintiff on 9 October 1996 and reported to the solicitors for the defendant’s insurer on 10 October. He expressed scepticism about the plaintiff’s description of symptoms which included the radiation of pain into his left buttock and through the left leg down to the knees, with constant weakness, pins and needles and numbness in the left leg. Dr Minogue concluded:

“In my opinion it is highly likely that Mr Cipriano has recovered from the disc protrusion to a greater extent than he admits. There is no evidence of persisting nerve root compression and he has a full range of lumbar spinal movement. A further MRI scan to check on the resolution of the disc protrusion would not be warranted on clinical grounds at this stage. I would expect however that if a repeat scan would be ordered that substantial resolution would probably be demonstrated.

It is quite likely at this stage that Mr Cipriano has in fact regained fitness for most if not all pre-injury duties and activities. A history of disc protrusion does not necessarily preclude a resumption of heavy manual duties and in Mr Cipriano’s case he has retained objectively normal lumbar and virtually normal left leg function.

…

With respect to his work capacity some precautions may be in order although very few specific restrictions would appear to be warranted. He should exercise care with lifting, use the correct lifting technique and limit duties which would transmit vibration to or jar the lower back, such as driving machinery over rough ground. His long term prognosis on present evidence would appear to be very good. Disc degeneration per se is not necessarily symptomatic and may give him no further trouble in the future.”

29. In a second report, also dated 10 October 1996, Dr Minogue assessed the plaintiff’s impairment in these terms:

“I would say that Mr Cipriano has a current impairment of his back of a maximum of 5%. There may in fact be no or minimal residual impairment. He may have a left lower limb impairment of no more than 5% at present, assuming the validity of some of his symptoms. Again this apparent impairment is not necessarily permanent.”

30. These reports by Dr Minogue are exceptional to all others of 1995 and 1996 in suggesting a favourable prognosis. They are in stark contrast to the opinion of the treating neurosurgeon, Dr Sheehy, who had recommended surgical intervention to decompress the S1 nerve (22 November 1995) but by January doubted that even this would enable the plaintiff to return to his pre-accident employment. Dr Minogue’s view is also at odds with that of Dr Griffith who was “guarded” about his prognosis and assessed the disc degeneration and protrusion and the S1 nerve root compression as a “permanent derangement” associated with “nutritional and structural changes in the nerve and may lead to permanent damage over time” (21 September 1995 and 30 October 1995).

31. Dr Bodel, orthopaedic surgeon, reported to the defendant’s insurer on 10 October 1996 in the following terms, after review of radiology reports of 12 October 1994, 4 January 1995, 9 March 1995 and 5 December 1995:

“The natural history of this disc prolapse is for a gradual improvement over time, with conservative care. The patient has clearly demonstrated that is possible, based on his clinical presentation today.

The patient has no residual sign of nerve root irritability and there is (sic) only very mild signs of nerve root involvement in the left leg.

…

At the moment there is no indication for surgery as the patient has no nerve root irritability but there is the potential that he will deteriorate and then require surgery. With due care with bending, twisting and lifting he will minimise the risk of significant deterioration.”

The evidence of post-election deterioration

32. There is no further medical report in evidence dating from before the plaintiff made his election for permanent loss compensation on 21 April 1997. For the purposes of satisfying par (b) of s 151A(5), the plaintiff tendered medical expert opinion from later dates to the effect that the injury to his lumbar spine resulting from the incident at work on 1 October 1994 has caused “a further material deterioration in [his] medical condition that, had it existed at the time of the election, would have entitled [him] to additional permanent loss compensation”.

33. By 18 December 2002 doctors had assessed the plaintiff’s back impairment as having increased by 15% up to 25% and the degree of loss of effective use of his left leg as having increased by 5% up to 15%. The defendant consented to an increase in payment of permanent loss compensation accordingly, pursuant to s 71 of the Act (which continued to apply after the 2001 amendment by force of Sch 6, Pt 18C cl 2 of the Act). On 18 December 2002 terms of settlement were entered into to reflect this and the plaintiff acknowledged receipt of the additional compensation payment.

34. The medical reports which led to this assessment of increased impairment and a corresponding increase in compensation included that of Dr Ellis, orthopaedic surgeon dated 3 June 2002. The doctor reviewed a report of an MRI scan of 21 June 2000 which showed loss of hydration in the L5/S1 disc space and “an annular tear at the L5/S1 level to the left of midline lying between the thecal sac and left S1 nerve root sleeve”. Dr Ellis’ report included the following:

“There has been considerable deterioration in both back and left leg pain and disability since 1998 when a previous claim was made.

I think it is likely that he will require surgical intervention for pain relief, laminectomy and discectomy … .

If he attempts to return to physically demanding work, recurrence and exacerbation of his condition can be expected.

He has lifelong back disability … .”

35. Later again, subsequent medical assessments were that the impairment to his back increased a further 25% up to a total of 50% and that the degree of loss of effective use of his left leg increased by 10% bringing it to a total of 25%. Additional permanent loss compensation was calculated accordingly and was awarded by the Workers Compensation Commission on 5 May 2014. At that time the Commission also awarded compensation under s 66 of the Act for 5% permanent loss of the efficient use of his sexual organs.

Judicial interpretation of s 151A(5)(c)

36. Brief reference has been made (at [13]) to the High Court’s holding in New South Wales v Taylor. Namely, that the question whether the there was “no reasonable cause to believe that the further deterioration would occur”, within the meaning of par (c) of s 151A(5), is to be determined objectively and not from the standpoint of the plaintiff himself and his state of knowledge. The following paragraphs of the joint judgment of Gleeson CJ, McHugh and Hayne JJ express this:

“[13] Hence it is the court's view of all the evidence and not the injured person's belief, reasonable or otherwise, that is decisive. On this view, the test for the court is: given the medical condition of the applicant at the time of the election and the expert opinions as to its prognosis at that time, would it be unreasonable for a person to believe that the condition would further deteriorate as it had? The applicant for leave must prove a negative. He or she must show that it would be unreasonable for a person to hold that belief. The applicant will prima facie discharge that onus by tendering evidence indicating that such a belief could not be reasonably held. If a prima facie case is established, the employer has the evidentiary burden of showing that there exists another body of evidence that indicates a contrary conclusion. Ultimately, it is for the court to determine whether ‘there was no reasonable cause to believe that the further deterioration would occur’ in accordance with the test that we have formulated.

[14] In determining the issue of ‘no reasonable cause to believe’, the court does not determine whether, as a matter of probability, there was cause to believe that the further deterioration would occur. To approach the section in that way is to invert the negative proposition that it contains. On the evidence, two opposite beliefs may have been reasonably open as to whether the further deterioration would occur. If there was, the application for revocation fails. If on the whole of the evidence, whatever its source or sources, the court concludes that it would not be unreasonable to believe that the further deterioration would occur, the applicant fails It is irrelevant that, on the same body of evidence, it would also be reasonable to believe that the further deterioration would not occur. In a case where the evidence admits of two reasonable, but opposing, conclusions, the applicant has failed to show that there was no reasonable cause to believe that the further deterioration would occur.”

37. In Corcoran v Tyre Marketers Australia [2001] NSWCA 300 Mason P and Grove J made the following statements of principle in the course of their joint judgment:

“[82] It bears remembering that the ultimate issue is determining whether there was no cause for reasonably believing that the further (material) deterioration would occur. It is ‘would’ not ‘could’. The focus is upon a material deterioration because the definite article in the phrase ‘the further deterioration’ in (c) points back to the words ‘a further material deterioration in the person's medical condition’ in par (b) of the subsection (see also Taylor at [65]-[67] per Kirby J).

[83] Paragraph [14] of the joint judgment in Taylor does not state that the mere existence of evidence favouring the employer on the critical issue spells doom to the application. Rather, it speaks of evidence which ‘admits of two reasonable, but opposing, conclusions’ (emphasis added). The determination is to be made ‘on the whole of the evidence, whatever its source or sources’ (Taylor at [14]). If, in light of the total evidence the issue is equipoised in the sense that ‘the courtconcludes that it would not be unreasonable to believe that the further deterioration would occur, the applicant fails’ (ibid, emphasis added).

[84] Merely because there is credible medical evidence against an applicant on the issue raised by s151A(5)(c) (on which the applicant bears the onus) does not mean that the applicant must fail. A tribunal of fact is capable of reaching a conclusion, even one beyond reasonable doubt, notwithstanding evidence to the contrary. It happens every day in the criminal courts and it can certainly happen where there is a clash of expert opinion in a civil case.

[85] It would be a bold doctor who did not concede the possibility that his or her optimistic prognosis in a particular matter might not be falsified by later events. But such concession does not prevent a generally favourable prognosis from assisting an applicant seeking to revoke an election.” [Emphasis as in original.]

Reasonable to believe deterioration of the back and the left leg would occur

38. With respect to the plaintiff’s back and his left leg (and deferring to later consideration the 5% loss of use of the sexual organs) I will consider the significance of the issue under par (c) of s 151A(5) of some of the medical reports extracted above. Dr Griffith expressed the view on 11 September 1995, quoted at [22], that further deterioration was medically foreseeable at that date. His opinion was based upon the nature of the tissue damage (a) to the disc and (b) by impingement of disc material to the S1 nerve. The doctor’s prognosis of possible deterioration on that basis would be as valid at 21 April 1997 as it was on 11 September 1995. The radiological reports and medical opinions from the period between those dates do not disclose any development which would undermine or qualify the prognosis. Dr Griffith considered the plaintiff’s pain might develop to the point of becoming intolerable. Evidently that had not yet occurred by 21 April 1997 because the plaintiff had not by that date resorted to the decompression surgery. The possibility of such development of pain still lay in the future as at the date of the plaintiff’s election.

39. Given this opinion from one appropriately qualified specialist, that further deterioration was at least reasonably possible, I do not consider that the Court could conclude “there was no reasonable cause to believe that the further deterioration would occur”. Whilst Dr Griffith only went so far as to say deterioration was possible, in the absence of medical opinion directly to the effect that the stronger conclusion (that is, deterioration would occur) would be unreasonable, I see no basis for the Court to find that it would be unreasonable.

40. Warnings of the risk of deterioration as a result of normal body movements, including movements involved in the plaintiff’s original work duties, recur through the reports. For example Dr Griffith’s report of 30 October 1995 quoted at [23]; Dr Sheehy’s report of 24 January 1996 quoted at [26] and Dr Bentivoglio’s report of 20 March 1996 quoted at [27]. It is inherent in these warnings that the respective doctors considered there was at least a significant risk that further material deterioration would occur. Again, in the face of these opinions, I do not consider the court could conclude that there was no reasonable cause to believe that further deterioration would in fact occur. Where several doctors have identified significant risk of deterioration, some affirmative evidence would be required to demonstrate that it would be unreasonable to hold a still firmer opinion, namely, that deterioration definitely would occur. No appropriately qualified medical opinion that the more definitive opinion would be unreasonable has been adduced by the plaintiff.

41. The effect of the medical opinions extracted at [16] – [27] and [31], particularly in the respects referred to at [38] – [40], is similar to the effect of the medical evidence which was considered fatal to an application for revocation under s 151A(5) in New South Wales v Taylor. Gleeson CJ, McHugh and Hayne JJ analysed the evidence in that case in these paragraphs:

“[24]   Dr Nott, who was a treating doctor, said in a report dated 3 March 1994, that it was ‘too early for a final opinion on permanent impairment, as [the worker] may improve, or deteriorate or further surgery may in fact totally relieve his problem’. Dr Sengupta, another treating doctor, said in a report dated 27 June 1994 that ‘[t]he long term prognosis, at this stage, remains guarded, as his condition may deteriorate and he may require further surgical treatment’. Dr Evans who examined the worker and reported to his solicitors in November 1993 said that the prognosis ‘is uncertain’.

[25]   In the light of this evidence and the evidence concerning the worker's further deterioration, the worker failed to prove that, at the time he made his election, ‘there was no reasonable cause to believe that the further deterioration would occur’. On this evidence, it would not be unreasonable to believe that the further deterioration that occurred would occur.”

42. In contrast, the applicant for revocation succeeded in Corcoran v Tyre Marketers Australia because there was a body of pre-election medical opinion expressing expectations that the applicant’s condition would improve: see the judgment of Mason P and Grove J at [49] – [52], [68] and [69]. At [86] their Honours said:

“…Viewed contemporaneously and with the benefit of expert hindsight, the signs of steady improvement were favourable as at [the date of election] October 1995. There was no reasonable cause to believe that the further deterioration that later occurred would occur. Everyone's hopes and expectations were falsified by later events … .”

That describes a case very different from the present.

Deterioration represented by loss of sexual capacity

43. The plaintiff relied upon alleged loss of sexual capacity as constituting deterioration different in kind from the pain and restriction of movement of his back and his left leg, which had been the subject of the permanent loss compensation awarded by consent on 21 April 1997. It was submitted that there was no reasonable cause, at the date of his election in April 1997, to believe that deterioration of this distinct type would occur.

44. The plaintiff’s affidavit in support of his application contains no information about loss of the use of his sexual organs. Such evidence as there is takes the form of hearsay reportage of the plaintiff to medical examiners. On 23 May 2006 Dr Patrick, surgeon, reported that on 3 May the plaintiff had complained to him of “diminished libido”. That was the earliest reference to any sexual problem identified by the plaintiff in any of the medical reports tendered on his behalf.

45. So far as it goes this report of Dr Patrick does not relate the “loss of libido” to the injury sustained on 1 October 1994 at all. Nor does it give a date for the commencement of the loss of libido. I disregard this particular item of evidence as not constituting any proof of “a further material deterioration” caused by the injury.

46. The next item of evidence relied upon by the plaintiff in this respect is a report dated 2 August 2006 from Dr Taylor, urologist. The doctor recounted the following history given to him by the plaintiff:

“From a urological point of view, there has been a loss of use of his sexual organs.

Mr Cipriano told me that the loss of use of his sexual organs commenced immediately following the onset of his back pain.

Prior to that he had a regular girlfriend, and they were having sexual intercourse on a daily basis. He had no problems achieving an erection, achieving vaginal penetration, and orgasm and ejaculation occurred invariably. Sometimes they had sexual intercourse more frequently than once a day.

Immediately following the above initial injury, he desisted from having sexual intercourse, because of the pain. Then he came to the realisation, after several weeks, or possibly a month or two, that he had lost interest in having sexual intercourse with his partner.

This loss of interest in having a sexual relationship with a partner has persisted to the present time. With masturbation, he can obtain an erection and orgasm and ejaculate, and he told me that this happens four or five times per month. However, he has not had any interest in having sexual intercourse with a partner since the original injury in 1994. That is the current situation.”

47. On this evidence there has been no physical or organic loss of use of his sexual organs. They have at all times been fully functioning but they have not been used with a sexual partner, initially due to back pain and then due to loss of “interest”.

48. Accepting the history given to Dr Taylor at its highest, the plaintiff’s initial reluctance to engage in sexual intercourse due to pain did not constitute a deterioration in the plaintiff’s medical condition for the purposes of s 151A(5)(b). It was simply an aspect of the partial loss of effective use of his back. It could have been the subject of an award of permanent loss compensation for loss of use of the sexual organs under Div 4 of Pt 3 of the Act: Roads and Traffic Authority v Malcolm (1996) 13 NSWCCR 272. But the period in which loss of use of the sexual organs was due to back pain was, in Dr Taylor’s words, “immediately following the above initial injury”. This has not been a “further material deterioration” post the election of 21 April 1997.

49. There is no prima facie evidence that the plaintiff’s ongoing loss of “interest” in sexual activity with a partner, for nearly 12 years following the accident up to August 2006, has been caused by his back injury or by the loss of effective use of his leg. The loss of “interest” was identified by the plaintiff to Dr Taylor as a cause of his cessation of sexual intercourse quite distinct from the initial cause, which was back pain. Nothing in the evidence establishes a connection between the loss of “interest” and the original injury. In any event it commenced before the election was made.

Leave to commence out of time under s 151D: principles

50. I find that the plaintiff has not satisfied the pre-requisite stipulated in par (c) of s 151A(5) and the application to revoke the election of 21 April 1997 must be dismissed. It is therefore not necessary for the disposal of the summons that a decision be made whether leave to commence an action for damages out of time ought to be granted under s 151D of the Act. However as the evidence relevant to this issue has been tendered and full argument presented I will state my conclusion. The time limit is 3 years. The plaintiff’s claim became statute barred on 30 September 1997. It is now 19 years out of time; 22 years have elapsed since the incident.

51. The discretion under s 151D is exercised on the general principle that “the onus is on the applicant to show why it is fair and just that in his or her case there should be a dispensation from a general rule [ie the limitation period] established by the statute”. That formulation is taken from the judgment of Gleeson CJ in Salido v Nominal Defendant (1993) 32 NSWLR 524 at 532D, which concerned extension of time under s 52(4) of the Motor Accidents Act 1988 (NSW). It was adopted for s 151D in Itek Graphix Pty Limited v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104 at [3], [48] and [87].

52. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 the general principle was expressed in similar terms by McHugh J at 553 – 554 with respect to a provision for extension of time in the Limitation of Actions Act 1974 (Qd):

“The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.”

53. Dawson J agreed with McHugh J at 554. Kirby J made a similar statement at 564. In Itek Graphix Pty Ltd v Elliott these statements were taken as equally applicable to s 151D. The Court of Appeal considered the view of Toohey and Gummow JJ at 550, that “[t]he real question is whether the delay has made the chances of a fair trial unlikely”, was a minority position and not authoritative. It would elevate prejudice to the defendant from its proper status as an important consideration to being the whole issue. The Court of Appeal held that under the principle more broadly stated by Dawson, McHugh and Kirby JJ, lack of explanation or justification for delay is a further consideration and one which may be decisive against an application under s 151D even where no prejudice to a fair trial is shown. On that very basis the Court held in Itek Graphix Pty Ltd v Elliott that an application to commence out of time should have been dismissed where the failure to commence within time was the result of a deliberate decision and notwithstanding that the delay would cause no prejudice to the defendant in litigating the claim.

54. I take the principal considerations relevant to whether leave ought to be granted under s 151D to be those articulated by Gleeson CJ in Salido v Nominal Defendant at 532 in relation to the Motor Accidents Act:

“1. Section 52(4) [of the Motor Accidents Act] confers a discretion which is to be exercised judicially, in a manner that furthers the purposes of the statutory context in which it appears. The immediate purpose, as with any limitation period, is to protect defendants against the injustice of stale claims; the statute is also aimed at promoting forensic diligence.

2. Bearing in mind those statutory purposes, the question is whether, in the circumstances of each individual case, the applicant for leave has demonstrated that it is fair and just that leave should be granted.

3. The diligence, or lack of diligence, shown by a plaintiff or a plaintiff's representatives, in ascertaining and asserting his or her rights will ordinarily be a material factor, as will the extent of the relevant delay, and the reason for it.

4. The nature and extent of any forensic disadvantage to a defendant resulting from a plaintiff's delay will also be material. The effect, if any, of the delay upon the defendant's ability to defend an action is a matter to be taken into account, and may in some cases be of decisive importance.

5. Leave under s 52(4) may be refused if it would be plainly futile to grant it, and in that connection an applicant's willingness and ability to give a full and satisfactory explanation of any delays in reporting to police, notifying claims and commencing proceedings will be material.”

55. The Court of Appeal has applied those considerations in connection with s 151D: Saad v J Robins & Sons Pty Limited [2003] NSWCA 87. In this case, where the facts to be litigated if leave should be granted concern a brief incident alleged to have occurred 22 years ago, the fourth of the factors referred to by Gleeson CJ (“the nature and extent of any forensic disadvantage to [the] defendant resulting from [the] plaintiff's delay”) is in my view a very powerful consideration.

56. The above summary of the general principle which governs an application under s151D and of the two principal considerations which should be taken into account is supported by the judgment of McColl JA (Meagher and Barrett JJA agreeing) in Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 at [43] – [52].

57. In Brisbane South Regional Health Authority v Taylor McHugh J stated in general terms that the burden of justifying a grant of leave to proceed out of time lies with the applicant: see the passage cited at [52]. Toohey and Gummow JJ at 547 reaffirmed the incidence of onus with respect to the issue of prejudice to the defence by citing with approval the following passage from Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465 at 474:

“It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.”

58. In the following passage at 551 McHugh J identified ways in which delay may prejudice a defendant:

“The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates.’ Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, ‘what has been forgotten can rarely be shown’. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.” [Citations omitted.]

Prejudice to the defendant from delay in this case

59. In order to consider whether the evidence before the Court prima facie indicates that the defendant will be prejudiced by the delay and then to determine whether the plaintiff has shown that this does not “amount to material prejudice”, consideration must be given to:

1. the case the plaintiff proposes to run if leave should be granted;

2. the inquiries the defendant might be expected to make in order to gather evidence to defend the proposed action and

3. the difficulties the defendant may face, as a result of the lapse of 22 years since the incident, in pursuing those inquiries and in securing through them evidence on the issues of liability and causation.

60. In addition to the two conflicting accounts of his workplace accident quoted at [10] and [11], the plaintiff has given a number of other mutually inconsistent versions of what occurred. The following are examples:

1. On 20 February 1995 the plaintiff described the incident to Dr Kwok in these terms: “[H]e was picking up a motor and again he is unaware of the exact weight of the machine. He picked the machine up, turned around and felt a sharp pain in the back.”

2. To Dr Griffiths, on 11 September 1995, he “stated that he was lifting components of motors from a pallet to a workbench … when he suffered a sudden onset of low back pain.”

3. To Dr Minogue on 9 October 1996 he said “he was working overtime repairing an electric motor/gearbox. He estimates it weighed 20 kgs or more. In the process of cleaning the machinery and disassembling it he went to move it from a bench, placing it down on a pallet on the floor. As he did this he was bending and twisting and allegedly felt a ‘pinch’ in his lower back”.

4. A similar account (of injury whilst lifting a gearbox from the workbench down to the floor) was given to Dr Bodel on 9 October 1996.

5. To Dr Roberts on 3 September 1998 the plaintiff reported that a sudden pain in his low back was experienced “as he bent over to lift the motor”, the weight of which he estimated at 30 to 40 kg.

6. On 6 January 1999 the plaintiff informed Dr Mellick that he had been “aware of back pain in October 1994 but that that it was mild and could not be clearly associated with a particular traumatic event”.

61. It is apparent from the plaintiff’s affidavit in support of the present application that he now alleges his back injury occurred when he was lifting an engine and gearbox assembly weighing approximately 50 kg and that he failed to keep his back straight because the defendant had never instructed him to do so. He has also deposed that the employer had not installed any lifting equipment to provide mechanical advantage in raising an object of this weight from the floor to the workbench. He says he was not provided by the defendant with assistance from any other worker for the purpose of effecting such a lift. He has deposed that in fact he had previously been directed not to seek assistance.

62. The plaintiff’s prospects of proving negligence might be significantly different according to whether his back was injured when he bent down and before he commenced to lift (as he first reported: see [10]) or during a lift. It would be arguable for the defendant that if the former was the case then any deficiency of instruction about how to lift or any failure to provide assistance with lifting, from fellow workers or by the use of machinery, was not causative of the injury.

63. Assuming the plaintiff could prove the injury occurred whilst actually lifting an object, the scope and content of the employer’s duty of care – what it should reasonably have done to protect the plaintiff against the risk of such damage to the lumbar disc as in fact occurred – would vary according to whether:

1. the plaintiff was picking up “parts” (as originally reported, see [10]; [57](2) or a full motor/gearbox (as now asserted: [11], [57](1), (3), (4) and (5));

2. the weight of the object was in the order of 20 kgs (see [57](3)) or 30 to 40 kg (see [57](5)) or 50 kg (see [11]);

3. the lift was from the floor or a pallet to a work bench ([11], [57](2), (5)) or vice versa ([57](3), (4)) and

4. the plaintiff turned or twisted whilst carrying or lifting the item (see [57](3)).

64. The defendant, prudently, would wish to enquire of fellow workers and perhaps of associates of the plaintiff who did not work with him to find out whether he ever described the incident to any of them, close to the time it occurred, and if so in what terms. Any near contemporaneous description given by the plaintiff might be significant to the issue of how exactly he injured his back and consequently to the issue of whether this involved any breach of duty of care on the part of the defendant. The possibility of the defendant being able to make useful enquiries in this regard 22 years after the incident is negligible. It is not necessary that the defendant should be able to show that there was a witness to whom the plaintiff made relevant statements but who can no longer be located or can no longer recall what was said. The likelihood of prejudice to the defendant and the improbability of a fair trial arise because after such a long delay it may never be known what evidence has been lost through inquiries not having been made in a timely fashion.

65. The defendant would also no doubt wish to make enquiries of fellow workers and management who were employed in the Wetherill Park facility in October 1994 to ascertain what work was undertaken by the plaintiff at that time and whether it is likely that he would have been called upon to lift a motor/gearbox. If so inquiries might be directed to what the weight may have been of any such item which may have been handled in the workshop at that time. Again, there would be only the remotest possibility that such enquiries made now could turn up relevant evidence or could even identify whether relevant evidence might at an earlier time have been gathered and may since have become unavailable due to destruction of records, departure of employees, changes in systems and the like.

66. The defendant has adduced only limited evidence of specific prejudice to its defence of the common law claim for damages if leave to proceed out of time should be granted. That evidence shows that the defendant company is still trading. Its payroll officer has deposed, on 20 July 2016, that she has searched the company’s Melbourne head office for records relating to the systems of work and the safety protocols which were followed at the company’s Wetherill Park facility in October 1994. She has been unable to find any such records. A similar search has been carried out in the archives of the Wetherill Park facility, by a logistics manager. This witness has deposed on 20 July 2016 that no such records are held at the Wetherill Park branch of the business. She has worked for the defendant for 22 years but has no direct knowledge of safety systems which were in place in October 1994.

67. Having regard to the considerations adverted to in [61] and [62] and given the plaintiff’s onus to demonstrate that the defendant would not be prejudiced, the limited affirmative evidence of specific prejudice does nothing to reassure the Court that if leave were granted a fair trial of the action could take place. I am not prepared to infer that the defendant must have made investigations of the circumstances of the injury closer to the time, before the plaintiff made his election and whilst it was possible that he could bring a common law action. Up to 21 April 1997 the plaintiff gave no hint that an allegation of negligence might be made and litigated. On the contrary, his report that the incident occurred as he bent over and before he had lifted anything would have indicated to the defendant and its insurer that there was not alleged a causal mechanism against which the defendant could have protected him and in respect of which there may have been a breach of duty of care for not doing so.

68. That impression would have been confirmed when the election was made. Thereafter the defendant would not reasonably have been put upon enquiry to interview potential defence witnesses.

Explanation of delay

69. I do not consider that any explanation has been given for the long delay in bringing this application, sufficient to make it just that leave to proceed out of time should be granted. The plaintiff had legal advice when he made his original claim and settled it by accepting permanent loss compensation on 21 April 1997. He now says that he was not then advised on the relative benefits of claiming damages in negligence or that by accepting permanent loss compensation he would be making an election. He had legal advice again when his condition worsened in 2002 leading to an application to increase statutory permanent loss compensation, which occurred on 18 December 2002: see [33]. He has deposed that at this time he was told he had made the election but was not advised to apply to revoke it.

70. Again he had legal advice in April 2005 when his condition once more worsened and when Dr Sheehy carried out the first surgical intervention, a nerve decompression to remove disrupted disc material on 12 May 2005. Medical reports from Dr Patrick at that time and continually thereafter through to late 2011 were addressed to the plaintiff’s legal representatives. He has deposed that he received legal advice in early 2014 about the possibility of assessment for whole person impairment and that he was then told such assessment was a prerequisite to claiming damages for negligence at common law. He was legally represented in relation to the further increase of his permanent loss compensation which was settled on 5 April 2014.

71. It is not possible to discern from this evidence whether the plaintiff has been adequately advised throughout. That would be highly dependent upon the terms of his instructions to his various legal advisers. Certainly it has not been shown that there were deficiencies of advice which operated to cause delay where otherwise the application for revocation and for leave to commence a damages action would have been brought earlier. Even if the evidence did permit one to make such a finding, that would not make it just as between the plaintiff and the defendant that this 22-year-old claim should now be litigated with the attendant disadvantages to its defence which have been identified. On the authority of Gleeson CJ’s judgment in Salido v Nominal Defendant (see point 3 in the passage quoted at [54]) I would attribute fault on the part of the plaintiff’s legal advisers, which contributed to the very long delay in this case, to the plaintiff himself rather than treating the lawyers’ lack of diligence as a justification of the for the delay.

72. Given the necessity for the conditions of revocation in s 151A to be satisfied before an application for leave under s 151D could be made, the Court recognises that if leave to revoke had been granted there would have been an explanation for the delay in commencing the damages action in the period up until the plaintiff’s condition had worsened so that revocation could be applied for. That had occurred by 18 December 2002. At least this ground of delay might have explained the plaintiff’s failure to apply under these provisions up until May 2005 when his condition so deteriorated as to require Dr Sheehy’s surgical intervention. That would still leave over 10 years of delay which has not been explained or justified, up to the filing of the summons herein on 9 October 2015.

Orders

73. For these reasons the orders of the Court are:

1. The summons is dismissed.

2. The plaintiff is to pay the defendant’s costs of the summons.

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Decision last updated: 18 November 2016