Crim v Vodafone Hutchison Australia Pty Ltd

[2017] NSWDC 404

District Court

New South Wales

Medium Neutral Citation:

Crim v Vodafone Hutchison Australia Pty Ltd [2017] NSWDC 404

Hearing dates:

11 – 12 December 2017

Date of orders:

12 December 2017

Decision date:

12 December 2017

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

(1) I grant leave to the plaintiff to commence a claim for work injury damages against the defendant pursuant to s 151D(2) of the Workers Compensation Act 1978 on or before 4pm on Friday 22 December 2017 in respect of injuries suffered by the plaintiff between 1 September 2009 and 9 June 2011.

 

(2) The statement of claim is to be filed in the current proceedings with the current plaint number.

 

(3) I order the defendant to pay the plaintiff's costs of the summons.

 (4) Exhibits to be returned.

Catchwords:

CIVIL – TORTS – LIMITATIONS – Application to extend 3 year limitation period to bring a claim for work injury damages, 6.5 years after plaintiff stopped working – Allegation of overwork without adequate supervision or assistance – Initially somatic symptoms later diagnosed to be psychologically determinant – Plaintiff only realised cause of his symptoms nearly 4 years after stopping work – Plaintiff then makes WC claim and needs to pursue two sets of proceedings in WCC before making a claim of work injury damages – Whether plaintiff deliberately allowed limitation period to expire – Whether application was futile, plaintiff not having an arguable case on liability

Legislation Cited:

Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001
Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998

Cases Cited:

Australian Croatian Cultural and Educational Association "Braca Radici" Blacktown Limited v Benkovic [1999] NSWCA 210
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Itek Graphix Pty Limited v Elliott (2001) 54 NSWLR 2017; [2002] NSWCA 104
Koehler v Cerebos (Australia) Limited [2005] HCA 15; (2005) 214 ALR 355
Mason v Murray's Charter Coaches & Travel Services Pty Limited (1998) 88 FCR 308
Secretary of State for Trade and Industry v Davies [1996] 4 ALL ER 289

Category:

Procedural and other rulings

Parties:

Jerrod Crim (Plaintiff)
Vodafone Hutchison Australia Pty Limited (Defendant)

Representation:

Counsel:
Mr D Hooke SC with Mr S Holmes (Plaintiff)
Mr N Polin SC (Defendant)

  Solicitors:
Garling & Co Lawyers (Plaintiff)
Hicksons Lawyers (Defendant)

File Number(s):

2017/186952

Publication restriction:

Nil

Judgment

1. HIS HONOUR: By summons filed on 21 June 2017 the plaintiff, Mr Jerrod William Crim, seeks leave to proceed against the current defendant with a claim for work injury damages, leave being sought pursuant to s 151D(2) of the Workers Compensation Act 1987 (“the 1987 Act”). The plaintiff has not filed any statement of claim but a “pre-filing statement of claim” is before me as part of exhibit MFG8 to the affidavit of Matthew Garling sworn on 8 September 2017 which is exhibit B.

The proposed action

2. The relevant part of the pre-filing statement of claim is this:

“2. At all material times the defendant was the plaintiff’s employer.

3. From in or about August 2007 to 7 June 2011 the plaintiff whilst in the course of his employment was subject to bullying and harassment and excessive workload and as a result has suffered injury, loss and damage (“the plaintiff’s injury”).

4. The plaintiff’s injury has resulted in a level of impairment assessed in accordance with [1987 Act] of 22% whole person impairment.

5. The plaintiff’s injury was caused by the negligence of the defendant, their servants or agents.

6. PARTICULARS OF NEGLIGENCE

(a) Failing to devise, maintain and/or enforce a safe system of work including a safe workload and working hours

(b) Failing adequately (or at all) to train and instruct the plaintiff in the performance of his work

(c) Failing adequately (or at all) to provide supervision of the plaintiff in the performance of his work

(d) Failing adequately (or at all) to provide assistance to the plaintiff in the performance of his work

(e) Failing adequately (or at all) to conduct any risk assessment of the plaintiff and his work environment including his workload and working hours

(f) Failing adequately (or at all) to monitor the plaintiff’s working environment including is workload and working hours

(g) Creating or permitting the creation of an unduly stressful work environment including an unduly burdensome workload

and working hours

(h) Failing adequately (or at all) to devise and implement a system for the reporting by employees (including the plaintiff) of workplace issues including being overborn by workloads and working hours

(i) Failing adequately (or at all) to devise and implement a system for the monitoring of the health and well-being of employees including the plaintiff and including issues of workload, stress and fatigue

(j) Breaches of the Occupational Health & Safety Act and regulations

(k) Burdening the plaintiff with a workload including workings hours that were in breach of the contract of employment”

The defendant’s contentions

3. The defendant opposes the relief sought on two bases. The first basis is that the plaintiff elected to permit the limitation period to expire when there was available to him a mechanism which might have enabled him to commence proceedings before the limitation period expired. The second basis is that to do so would be futile as the plaintiff has not established a prima facie or arguable case on the question of negligence. To deal with those matters it is necessary for me to recite some substantial history.

4. The plaintiff was born on 13 April 1971. He is now 46 years old. He completed his secondary education at Greystanes High School in 1988. I understand that he had some free time before commencing studies at the University of Western Sydney where he obtained the degree of Bachelor of Commerce majoring in marketing in 1993. He subsequently obtained employment firstly as a conference manager with IES Conferences, and then as a conference developer for One World Marketing. He was then an account manager for Neon Pigeon Advertising. He then obtained a sales position with Polygram Music and then moved to Universal Music where he was in retail management. He then followed that line of employment by taking a job as firstly the marketing manager and then the marketing director of Zomba Records. He then moved to be the senior product manager for Paramount Home Entertainment.

5. On 19 February 2007 he commenced work with Hutchison Australia who traded under the brand name “3” as the music and ringtones product marketing manager. It would appear merely from financial information available that the plaintiff performed his work for Hutchison Australia at a very high level. For example he was given a bonus on 3 December 2007 of 155% of the target that had been allocated to him. At the same time he was advised that his total remuneration package for the calendar year 2008 increased from $147,150 to $154,589. For the following financial year he was awarded a bonus of 117.5% of his target. For the half year between 1 January 2009 and 30 June 2009 he was awarded a bonus of 120% of his target. For the second half of the calendar year 2009 he was awarded a bonus of 130% of his target.

6. The reason why the plaintiff’s bonus for 2009 was divided into two parts was because of a merger of two companies in the same field. This is explained in para 11 of a statement of Joanna Harris of 26 September 2013 which is part of exhibit MFG9 to the affidavit of Mr Garling which I have already mentioned. That statement contains this matter:

“11. On 1 September 2009, a joint venture was established between Hutchison Telecoms Australia and Vodafone Australia and formed a new entity, Vodafone Hutchison Australia. As part of the merger process, Jerrod would have been required to apply for a role with VHA, and he was successful in obtaining this. He was provided an Employment Contract dated 21 August 2009 which he formally accepted on 2 September 2009.

12. Jerrod’s job title was Product Manager Music and Tones and it was essentially the same role and responsibilities that he had undertaken whilst with Hutchison. He worked in Internet Services. The Internet Services team was responsible for driving innovative services through partnerships with external companies that we [then] packaged and on-sold as part of mobile phone content. As I understood, Jerrod’s primary responsibility was to develop the music portfolio strategy and to manage relationships with music providers from whom VHA purchased music to package as part of mobile phone content.”

The new contract of service

7. A copy of the plaintiff’s unsigned contract of employment is before me. It forms part of exhibit MFG7 to Mr Garling’s affidavit. The covering letter bears date 21 August 2009. However, it is clear from cl 1 that the new contract commenced on 1 September 2009 with a new employer Vodafone Hutchison Australia Pty Ltd, that new employer being the current defendant. The remuneration package under that contract was for $154,509.50. Included in that was a remuneration variable namely a target bonus of $15,750. It is in respect of that target bonus that the plaintiff was awarded a bonus of 130% of his target bonus for the last half of the 2009 calendar year.

8. Before leaving the plaintiff’s employment contract I should quote a number of its terms. The first provision in cl 2(a) lists as part of his duty that he was to, “give all of your time and be dedicated to VHA’s needs during working hours”. Clause 7 governed hours of work:

“Your normal hours of work are Monday to Friday, 37.5 hours per week (exclusive of lunch). Core office hours are 8.30am to 5pm Monday to Friday. These hours are subject to the operational needs of our business and will be agreed specifically between you and your manager. We may ask you to work different hours from time to time depending upon the nature of your work and our business needs.

The responsibilities and duties of your position may require you to work additional hours to your normal hours of work. Your current remuneration takes this into account and you will not be entitled to additional remuneration for work in excess of your normal hours, unless you are informed otherwise in writing.”

9. There was a basic provision for 20 days annual leave plus extra leave. After completing one year’s continuous service he would obtain three extra days leave. After completing two years continuous service he would obtain four days extra leave and after completing three years continuous service and for each completed year of continuous service thereafter he would obtain five days annual leave. In other words after completing three years continuous service he was entitled not to four weeks annual leave, but to five weeks annual leave.

10. He was entitled to ten days personal leave which allowed for sick leave and carer’s leave, and there were circumstances in which he might be entitled to 14 weeks paid parental leave but at no time was the plaintiff a parent, so that did not arise.

The relevant work

11. It would appear that the plaintiff’s hours of work exceeded what was provided for in his contract of service at the time he started working for the current defendant. The plaintiff’s work with the defendant was not as straight forward as the statement of Ms Joanna Harris suggests. Not only did the plaintiff continue to do the work he had been doing with Vodafone Hutchison Australia Pty Ltd, but he, to use his words “inherited” the Music and Tones position that was in the Vodafone Australia business. The plaintiff said in his affidavit, and he was not cross-examined about this, that he was also asked to build and manage new VHA music and ringtone products.

12. By December 2009 he was promoted to Senior Product Manager, Entertainment. He had one project manager working under him, who is identified in exhibit C as Niall Reilly. After reciting that matter in his affidavit the plaintiff said this,

“I worked full-time and thoroughly enjoyed my job”.

13. It is clear that the plaintiff quickly realised that the Vodafone product which he had now come to manage, together with the Hutchison product, was “flawed”. It operated in a completely different fashion to the Hutchison product and that required the plaintiff to learn the Vodafone system. That involved a reporting system that did not meet the standards that it promised to provide. The plaintiff’s affidavit continues thus:

“Vodafone had promised the music labels specific reporting requirements, so that the labels would provide them with a special ‘prepay rate’. The reporting requirements that had been promised to the music labels to lock in the desired rates did not exist. This created a conflict with myself being the representative of Vodafone and the music labels, and I was required to deal with this conflict. The ‘prepay rate’ was also not in any Vodafone global contracts. The previous contract between Vodafone and the music labels were [sic] unviable and the reporting system was impossible to deliver. I reported this to my manager [James Dampney] and those above me in the organisation on many occasions but I was given very little or no assistance to resolve the issue. The manager above me did not have enough experience to fully understand the problems we [sic] were facing.”

14. In the following paragraph of his affidavit the plaintiff described the Vodafone contents of the merged businesses as a “mess”. It was losing money and that caused an increased pressure from the parent company of Vodafone which clearly had an interest in VHA and there were contractual demands which the plaintiff thought were not only unrealistic but were not financially viable.

15. In the next paragraph of his affidavit the plaintiff pointed out that there were different objectives between the Vodafone Global parent company and VHA creating an unforeseen and increased workload.

16. The plaintiff’s affidavit then continues thus:

“11. In late 2009, it was determined that music, tones, games, and picture products would be renegotiated and retendered with a new vendor [sic, scil. contractor] who would support the Vodafone Hutchison products. This required a huge undertaking in producing ‘a request for proposal’ and taking it to market as it is essentially a large tender document. I ended up taking on the responsibility of preparing and managing the majority of this document and process for the team as I was a person with product experience. I was provided with no additional assistance from my manager [James Dampney], it was simply added to my workload. I was also required to negotiate new contracts with those vendors who were in line to win the business.

12. I also had another product manager [Kimmy Taylor] working beside me who had often asked for my help as my team was aware that I knew the product well. I found myself trying to hold the content team together.

13. In late 2009 and into 2010 I found I was working six days per week from 8.30am to 10pm, and sometimes later. My life was work. I was working 13-15 hour days. I was constantly under pressure trying to fix problems, trying to develop new systems and trying to hold the business together. We were under constant pressure to achieve budgets which were unrealistic and I was hugely overworked. I was not given the required support and assistance. I was trying my best to hold it all together. The content product was losing money and we were under extreme pressure.

14. In early 2010, I started to notice that I was having spasms in my chest but I was not sure what this was from. I thought that I might be having a heart attack. I was also getting headaches and was constantly stressed. By May/June 2010 I was exhausted and needed a break. I had to take a holiday. I went for a one-month holiday in India. I recall I worked up until 3.30am on the morning that I was due to fly out. I had to work late in order to get my work done so I could go on holidays. When I got to India I was exhausted and felt sick the whole time I was away. I was generally unwell.

15. When I got back to work in August 2010 the new product that we had been developing was unable to be delivered to the market as we planned because the vendor [contractor] in charge would not produce what they [sic] had promised. I had spent an enormous amount of hard work on developing the new products. As the product was unable to be implemented and delivered by the vendor as we planned this increased pressure on me. Our revenue was falling and we were not meeting our budgets. We were under pressure to introduce this new product and make sure it was successful to increase revenue. We were also under very tight deadlines. There was still a number of contract issues to be resolved and I continued to work excessive hours often until 10pm or later.

16. I notice that I was getting panicky and I had a constant dull headache.

17. I also had blurred vision, dizziness and I was having difficulty sleeping. I was struggling to eat properly. I also had facial and jaw pain. The facial pain was severe pain on the right side of my face and it was associated with my migraine type headaches.

18. I spoke to Psychiatrist Marlene Johnson in December 2010. I explained the symptoms I was having. I continued to go to work. I was in pain but I felt pressure to achieve the company objectives and deadlines. I also had a new manager [Brad Kelly]. There was too much work for me to take time off and no-one had the experience and knowledge to cover my time off.

19. At approximately the same time in December 2010 I consulted Dr Townsend, general practitioner, for my facial and jaw pain. I also consulted Dr Zoran Becvaroski, an ear nose and throat specialist (ENT), to see why I was experiencing dizziness and blurred vision. Dr Becvaroski referred me to Dr Raymond Schwartz, Neurologist, who I consulted in January 2011.”

17. The affidavit goes on to tell me that the plaintiff sought chiropractic treatment, acupuncture treatment and massage to try to get on top of what he thought were physical symptoms. His pain gradually got worse.

18. The narrative at this time is best explained through what is contained in a number of paragraphs of the statement of Joanna Harris to which I have earlier referred. She said this:

“18. Jerrod is recorded as having a period of 75 hours sick leave from 28 March 2011 to 8 April 2011. This period of absence was supported by a medical certificate issued on 24 March 2011 by Dr George Samra of Total Therapies Medical Centre in Kogarah. That certificate provides a diagnosis of migraines, anxiety and TMJ [temporomandibular joint]. This was a standard sickness certificate. This was the first medical document provided to VHA that confirmed Jerrod had been diagnosed with a particular condition and was under some degree of medical care for it. There was no suggestions by anybody, including Jerrod, that it was a work-related condition.

19. Jerrod returned to work following this initial period of sickness, but there was evidence that he continued to be unwell. VHA was aware that Jerrod was seeing medical specialists as well as attending for various different treatment modalities including a dentist and chiropractor. He was also working from home more and more frequently. Jerrod had the support of his work colleagues around flexibility to help manage his illness. It was around this time that I first became personally involved in Jerrod’s situation. This was a consequence of his manager advising me that Jerrod was unwell and seeking advice about how to best accommodate Jerrod’s situation including flexibility with work times and management of his sick leave. My understanding was that Jerrod’s continuing symptoms were due to inflamed TMJ joint which brought about intense pain on movement together with migraines. Again, there was never any indication at any time that his medical condition was caused or contributed to by his work.

20. Jerrod’s next recorded sick leave commenced on 8 June 2011 and he remained unfit for any work since that time.”

19. Prior to going on sick leave on 28 March 2011 the plaintiff’s team was “restructured” and that resulted in a change of manager to whom he reported. He now reported to Mr Steve Dance. The plaintiff told me in his affidavit that that created further stress for him even when he was struggling to cope with his own pain and feelings of distress. According to [22] of his affidavit when the plaintiff ceased working on or about 8 June 2011 he was suffering from facial pain, dizziness and blurred vision. Prior to that he began consulting a dentist and two oral and maxillofacial surgeons as well as his GP. He had continued to see Dr Marlene Johnson, a psychiatrist, weekly since December of 2010, but her treatment did not alleviate his pain or ameliorate his condition.

Events after stopping work

20. The plaintiff’s symptoms became worse after he stopped working. His affidavit refers to a breakdown which led to his being taking involuntarily by ambulance to the Prince of Wales Hospital where he was admitted on 7 August 2011 for 16 days. In [58] of his affidavit the plaintiff told me that after being discharged from the Prince of Wales Hospital he was an outpatient at the hospital for four months receiving treatment from a psychologist, Ms Anna Bradshaw. The plaintiff’s reference to a breakdown on 7 August 2011 appears to be a reference to an event of 8 August 2011. The 1,105 pages of annexures to Mr Garling’s affidavit contain at p 601 a letter from Dr Gerard Walsh, the Psychiatric Registrar to Professor Parker at the South Eastern Sydney Local Health District. It tells me this:

“Mr Crim was admitted as an involuntary patient to the Kiloh Adult Inpatient Psychiatric Ward of the Prince of Wales Hospital on 8 August 2011 after he was standing on a window ledge threatening suicide. Two neighbours had to [restrain] him as he was fighting to get away from them.”

The plaintiff told the doctors at the hospital that he had been suffering from insomnia, poor appetite, increasing anxiety in the context of ongoing chronic pain the cause of which remained unknown despite extensive investigation. The plaintiff had been prescribed mirtazapine for depression but he had discontinued taking that drug. The psychiatrist at the Prince of Wales Hospital talked to the plaintiff about his job and he told them of stressors within his work environment. The diagnoses reached at the hospital were major depression which was severe with some psychosis. They also diagnosed chronic pain on each side of the face and it was thought that there could possibly be a General Anxiety Disorder.

21. From the end of 2010 the plaintiff’s condition had been such that he needed the assistance of his father living with him in order to cope with the demands of daily living. His father eventually took over all of the plaintiff’s affairs after he stopped working and tried to obtain income protection benefits under a private insurance scheme to which the plaintiff belonged. For some time it appeared that the plaintiff thought that the various pains that he was experiencing were indeed the result of some physical ailment or condition.

22. At [44] the plaintiff said this:

“By late 2012 I begun to understand that my injury was most likely psychologically based and that there was not a physical cause. It took a long time to accept this as I was consumed by the pain and its effects on me. I was just trying to find a quick fix to get better and get back to work. I loved my job and wanted to get back to work.”

23. A little earlier in his affidavit the plaintiff said that it had taken him a long time to recover from his hospitalisation in August 2011 and also to think clearly enough to understand what was causing his various somatic symptoms and his problems. The plaintiff’s income protection payments were only available for two years. They were due to end in June 2013. The plaintiff’s father, diligently looking after the plaintiff and his affairs, arranged for the plaintiff to consult a solicitor, Mr Matthew Garling, on 4 April 2013. The plaintiff told me, and I accept, that he was completely oblivious to the fact that his various problems might be work-related until towards the end of 2012 and that he was always unaware of any entitlement that he had to apply for workers compensation benefits, let alone to bring an action for damages against his employer. The plaintiff, whilst he was initially off work, was offered a voluntary redundancy package in March 2012 but he declined it and went on unpaid personal leave. However, his services were eventually terminated by the defendant on 31 May 2013. That can be found on p 373 of MFI 1 containing the first eight exhibits to Mr Garling’s affidavit, and of MFI 2 containing the ninth exhibit to Mr Garling’s affidavit.

Plaintiff consults a solicitor

24. On 4 April 2013, Mr Garling told the plaintiff that he could make a claim for workers compensation including a claim for weekly payments of compensation and lump sum compensation for whole person impairment, and, if he obtained a finding of 15% whole person impairment or greater, that he might be able to make a claim for work injury damages. Mr Garling explained to the plaintiff the nature of a work injury damages claim and also told him that the claim should be commenced within three years of the date of injury. He told the plaintiff that such a claim could be commenced more than three years after the “injury” if leave was granted by the Court. Having given him that information Mr Garling advised the plaintiff to make a claim for workers compensation weekly payments and medical expenses and in order to do that he needed to obtain a WorkCover Certificate of Incapacity and to provide it to his employer. The plaintiff acted on that advice but not with any alacrity.

Making a workers compensation claim

25. On 30 May 2013 the plaintiff obtained from Dr Marlene Johnson, his treating psychiatrist, a certificate in the form prescribed by WorkCover. The diagnoses provided by Dr Johnson were major depression and atypical facial pain. She certified the plaintiff was totally incapacitated for work from 30 May 2013 to 28 August 2013. Dr Johnson’s certificate can be found at p 134 in MFI 1. At the same time Dr Johnson wrote a report by hand. That can be found at p 946 in MFI 2. It bears the same date as the certificate. As best I can work it out it says this:

“This is to certify that Jerrod Crim’s employment at Vodafone Hutchison Australia has been a substantial contributing factor to his depression and atypical facial pain. This has been on an income protection claim since June 2011. At that time he was suffering symptoms which interfered with his making the best decision about his inability to do his job. Considerations about workers compensation did not enter his mind.

He is currently in a position to make a more effective decision about his inability to continue working at this time. He now recognises the impact of his working conditions on his health.”

That certificate and that manuscript report were sent to the defendant. The defendant received them by mail on 19 June 2013. The defendant forwarded the documents to its workers compensation insurer on 28 June 2013. The document from which I am now quoting can be found on p 178 in MFI 1. It indicates that a claim for compensation was sent to the worker by the defendant for him to complete and return.

26. The claim for compensation is dated 23 July 2013. It commences at p 174 in MFI 1. That repeats the diagnoses provided by Dr Johnson. In answer to the question “What happened and how were you injured?” the plaintiff wrote this:

“Exposed to increasing workload and sustaining injury by being overworked.”

The document confirms that the plaintiff stopped working on 9 June 2011. A question is asked in the form, “If you did not report the injury/condition, or there was a delay, please explain why”. The plaintiff answered that question, which does not contain a question mark, in this fashion:

“Unable to consider claim due to psychological symptoms.”

27. On 5 July 2013 the insurer of the defendant excused itself from paying the plaintiff’s claim under s 267 of the Workplace Injury Management and Workers Compensation Act 1998 (“the 1998 Act”). Section 267(1) of the 1998 Act requires that provisional weekly payments of compensation are to commence within seven days of initial notification to the insurer of an injury unless the insurer has “a reasonable excuse” for not commencing those weekly payments. “A reasonable excuse” for not commencing weekly payments is an excuse that is provided for in the WorkCover guidelines.

28. The defendant’s insurer then made certain investigations and on 15 November 2013 served a notice under s 74 of the 1998 Act denying the plaintiff’s claim. An amended notice under s 74 was sent a week later on 22 November 2013. On 27 November 2013 the plaintiff’s solicitor sought and obtained funding for payment of legal costs and disbursements from ILARS, a further bureaucracy designed to control legal costs. The plaintiff’s solicitor also arranged for the plaintiff to be examined by Dr Bruce Westmore, a psychiatrist. The examination was on 13 February 2014. Dr Westmore provided a report dated 21 February 2014.

Dr Westmore

29. Dr Westmore took a history that the plaintiff had been working from 8.30am until 6 or 7pm. That, according to Dr Westmore’s history, appears to have been the position prior to 1 September 2009 when the merger between Hutchison Australia and Vodafone occurred. It is easy to understand in those circumstances that the plaintiff with the increased workload following the merger might have to increase his hours to working until 10pm or later. Dr Westmore diagnosed a Major Depressive Disorder which was chronic and a Somatic Symptom Disorder with predominant pain which was both persistent and severe. That ties in with the two diagnoses provided by Dr Johnson on 30 May 2013. Dr Westmore expressed the view that based on the history the conditions diagnosed arose following the onset of “workplace stress” and if that were correct the employment was a substantial contributing factor to the onset of the diagnosed conditions. The chronicity of the plaintiff’s illness was a poor indicator of the prognosis. He believed that the plaintiff’s condition would not alter significantly in the coming 12 months and that therefore by some statutory definition the plaintiff’s condition had stabilised and reached maximum medical improvement. The doctor went on to say that the plaintiff was totally unfit for any type of employment at the time he assessed him based on the history, the absence of any conflict in his history and the plaintiff’s psychiatric condition. Dr Westmore went on to diagnose a 24% whole person impairment using WorkCover guidelines.

30. I should merely indicate at this stage that the defendant’s first objection to the relief claimed is based upon that opinion of Dr Westmore as to the extent of the plaintiff’s WPI given in the report on 24 February 2014.

Dr Marlene Johnson

31. On 28 April 2014, some two months after he received Dr Westmore’s report, the plaintiff’s solicitor requested a report from the treating psychiatrist, Dr Marlene Johnson. The plaintiff’s solicitor made many applications to Dr Johnson to prepare a medico-legal report. It was not provided until 11 November 2014. Dr Johnson’s history in the report of 11 November 2014 contains a number of incorrect dates. In quoting the history I shall insert correct dates:

“In [2009] he enjoyed a month of insecurity at work during a company merger with the threat of losing the job he had held since [19 February] 2007. He feared a redundancy when he was required to apply for his own position. This was a ‘massive breakthrough’ for him, finding it unbelievable, in view of the stress associated with the process. It ‘took time to sink in’ and his family were ‘moved to tears’ over his achievement.

Within months work became problematic with the resignation of three staff members and an increase in his workload. He was granted Senior status but no commensurate salary increase. He became disillusioned and went on a two week ‘holiday’ to have a break from the stresses to which he was exposed. He returned from his break with the aim of getting his job sorted by receiving recognition for his efforts maintaining the required workload.

This struggle continued throughout 2010 reaching a climax in December 2010 when it became impossible to maintain his level of functioning and his father moved in to care for him out of concern for his welfare.

He had been working long hours, was physically exhausted and at interview on 13 December 2010 was unable to cope on his own. He became fearful and panicky with headaches, dizziness and sleep disturbance. He began experiencing facial pain, initially in his sinuses, but then in the joints of his jaws, his teeth, facial muscles, and his neck. He pursued independent investigation of these without any significant outcome and the continuation of his pain.

He began to fear the development of a serious, but obscure physical illness, thought to have developed as a consequence of the stresses he experienced. He became increasingly anxious with agitation and panic. He felt unsafe in his own body, worrying that he caused himself harm and took to exercise, long walks, to improve his physical fitness. Over a weekend in August 2011 he reached a point of crisis during which his panic became out of control and initiated a process of involuntary admission to the Prince of Wales Hospital. He was discharged after about two years to continue his treatment here, at the same time pursuing independent opinion about his facial pain.

He has not been able to return to work since mid-June 2011. He invested in alternative pain management in early 2013 and was profoundly affected by the death of his treating doctor. At that time he turned his attention to administrative matters at work, pursuing his entitlements. He was made redundant that month and being dissatisfied with that process, sought legal advice.

He had been referred here in 2003 following a redundancy when the company of which he was employed was bought out. He found himself at a crossroad with anxiety, panic and sleep disturbance. He improved with treatment and started a new job in March 2004.”

32. That final piece of history is significant in explaining why the plaintiff was anxious about the merger of Hutchison and Vodafone and why he found it stressful to have to apply for his own job. Fortunately for the plaintiff, but unfortunately for the person who held the comparable position at Vodafone, the plaintiff won his job with his new employer, the defendant. There is no suggestion that the plaintiff had any symptoms between whatever work it was he obtained in 2004 and news of the merger of Hutchison and Vodafone in 2009.

33. In her report of 11 March 2014 Dr Johnson diagnosed not only major depression and chronic pain, but also a chronic post-traumatic stress disorder. Dr Johnson thought that each of those conditions had been substantially caused by the plaintiff’s work. She did not believe that the plaintiff was fit for any form of work but went on to express the view that it was her experience that a level of functioning could be improved into the future, over a period of five years, which might enable the plaintiff to perform some form of restricted work. Dr Johnson did not provide any assessment of whole person impairment.

Legal advice

34. Mr Garling in his affidavit said this:

“15. I then discussed with the plaintiff about pursuing the lump sum claim for permanent impairment (WPI). I was of the view that his condition was not yet stable and that it was better to have his claim accepted first before he made the lump sum claim. I was aware that the claim was complex and that the Arbitrator would need to make findings on injury and causation. I believe the best way to proceed was to have those issues determined first before making the lump sum claim. Doing so would also reduce the issues when the WPI was assessed.

16. I was also concerned about the recent change to the law that only allowed one claim for WPI to be made and it must be done when the client [sic] condition was unlikely to change. I was not convinced that the client had reached maximum medical improvement and that further deterioration of this condition may occur. I advised the plaintiff to not make the WPI claim until after the weekly payments claim was successful.”

It is clear from the plaintiff’s affidavit and from the rest of Mr Garling’s affidavit that the plaintiff accepted that advice.

35. There had been substantial changes to workers compensation law in 2012. By Act number 53 of 2012 there was inserted into s 66 of the 1987 Act subs (1A) which is in the following terms:

“Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury.”

That provision came into force on 27 June 2012. Antecedent to that time workers often made multiple claims under s 66 and were often successful in obtaining further awards of compensation. Furthermore, on 1 October 2012, there were substantial amendments made to the regime applicable for the payment of workers compensation weekly payments. Section 36 of the 1987 Act provided for a weekly payment during the first entitlement period. The first entitlement period was an aggregate period in which weekly payments were sought not exceeding 13 weeks. There is also a provision under s 37 for a weekly payment during the second entitlement period, and the second entitlement period was an aggregate period of 117 weeks after the expiry of the first entitlement period. The statutory scheme is complex, but essentially provides different regimes for workers who, to use the more recent nomenclature, are a worker with high needs or a worker with highest needs. A worker with high needs has to have WPI of more than 20%. A worker with highest needs, needs to have WPI of more than 30%. Therefore, the extent of a worker's WPI has become relevant, not only as to whether he is entitled to make a claim for work injury damages, but also as to whether he is entitled to any form of continuing weekly payment of compensation. The effect of the amendments made to the 1987 Act, which commenced on 27 June 2012 and also on 1 October 2012, must inform a prudent solicitor as to what advice to give his or her client.

36. However, I voice some concern about the assessment made by Mr Garling that there might be further deterioration of his client's condition. Dr Westmore did not believe that there was to be such deterioration, nor did Dr Johnson. However, Dr Johnson did concede that there might be improvement, and if there might be improvement, there was an argument available that the plaintiff's condition was not stable, which would be an argument available in the plaintiff's own evidence, which could be used against the plaintiff by the defendant in any workers compensation proceedings, or indeed, evidence which could be relied upon by an approved medical specialist appointed by the Workers Compensation Commission (WCC) to assess the plaintiff's claim for either weekly payments of compensation or lump sum compensation.

Recourse to WCC

37. An application to resolve a dispute was filed in the WCC on 24 December 2014. The current defendant served a reply on 28 January 2015. A telephone conference was held on 5 February 2015 with an Arbitrator. The Arbitrator made an order referring the plaintiff's claim for general medical assessment by an approved medical specialist. Pursuant to that order of the Arbitrator, the plaintiff was examined by Dr Julian Parmegiani on 13 May 2015.

38. Dr Parmegiani diagnosed a Major Depressive Disorder, which developed in 2009. He thought that that condition resulted from, "a quantitative and qualitative occupational overload." He went on to say, when asked whether this could be classified as a disease of gradual process, this:

"There was no single event which caused Mr Crim's Major Depressive Disorder. It was a gradual accumulation of worrying, working long hours and being unable to meet deadlines."

At the end of his report Dr Parmegiani said this:

"Mr Crim became debilitated by his Major Depressive Disorder in June 2011. He wasn’t able to continue working due to his poor concentration, emotional liability, reduced energy and depressed mood. Unfortunately, his Major Depressive Disorder and chronic Post-Traumatic Stress Disorder assumed a chronic and debilitation course. Employment therefore remained the cause of his persistent incapacity."

39. The plaintiff's claim in the WCC was listed for hearing before the Arbitrator on 25 June 2015. The plaintiff as applicant and the defendant as respondent reached an agreement on the day of the hearing that the employer would make weekly payments of compensation to the plaintiff from 9 June 2011 until 10 December 2013, amounting to $128,004.98 (gross), and that the defendant would pay the plaintiff's expenses under s 60 which are specified in consent orders made in the WCC which form annexure MFG4 to Mr Garling's affidavit. As Mr Garling explained in his affidavit:

"[24] The initial claim for weekly payments could only be made pursuant to ss 36/37 of the WCA for a maximum of 2.5 years of weekly payments, as no work capacity decision had been made by the insurer. This is required for payments to continue beyond 2.5 years. The insurer agreed to pay for 2.5 years up to December 2013, together with payment of 'reasonably necessary’ medical expenses.'"

40. After that outcome, the plaintiff gave instructions to Mr Garling to make a further claim for workers compensation weekly payments on an ongoing basis, pursuant to s 38. That required the applicant to request the insurer to conduct a work capacity assessment. That request was made on 9 July 2015. The insurer of the defendant made such a decision on 28 August 2015, accepting the plaintiff's claim for ongoing weekly payments from 11 December 2013 to that date and continuing. The plaintiff, I am told, remains in receipt of the payments pursuant to that decision, as well as the payment of his ongoing hospital, medical and like expenses pursuant to s 60.

41. Mr Garling's affidavit then says this:

"[27] I had decided previously not to make the lump sum claim until after the claim was accepted by the insurer, as I did not believe the client [sic] condition was stable, despite Dr Westmore's assessment my view was that the client condition was deteriorating and may get worse. As you are only allowed one chance of obtaining lump sum compensation for permanent impairment I wanted to wait to make sure his condition was stabilised. It is a very difficult decision to make as to when to [pursue] the lump sum claim as the amended s 66[(1A)] of the Workers Compensation Act states that you are only allowed one claim. If you make the claim and the client is assessed as less than 15% then this has the effect of preventing the client ever making a work injury damages claim."

42. In [29] of his affidavit, Mr Garling said that once the plaintiff's ongoing claim for weekly payments of compensation had been accepted by the defendant, he was satisfied that the plaintiff's condition was stable, and that the plaintiff should proceed with his claim for lump sum compensation. The affidavit tells me in [31] that the plaintiff gave Mr Garling instructions to make a lump sum claim for permanent impairment on 17 August 2015, which of course, predates the defendant insurer’s work capacity decision of 28 August 2015. However, Mr Garling was not required for cross‑examination. There may be some typographical error.

Dr G. George

43. In making the claim for a lump sum compensation, Mr Garling relied upon Dr Westmore's report of 21 February 2014. The defendant required the plaintiff to be assessed by a psychiatrist, Dr Graham George. Dr George assessed the plaintiff on 22 September 2015 and prepared a report that bears that date. Dr George did not go along with the diagnoses provided by Dr Johnson, Dr Westmore and Dr Parmegiani. In his summary and opinion, he said this:

"I believe that his history suggests a longstanding disorder. It would be extremely useful to gain access to the records of Prince of Wales Hospital from his involuntary admission. I believe the records would indicate that he suffered a psychotic disorder at the time when he was admitted.

My diagnoses would be that he suffers more a chronic schizoaffective disorder than a major depressive disorder in association with atypical pain. It may well be that his temporo-mandibular joint pain could be an expression of a somatic hallucination, although faciomaxillary surgeons appear to indicate that there may be an organic basis to his symptoms, although the symptoms appears somewhat ill-defined.

The fact that Mr Crim has been receiving medication over a number of years both in the form of antidepressant medication and major tranquilising medication is indicative of a chronic disorder."

Of course, the records of the Prince of Wales Hospital, which I have already quoted in these reasons, do indicate that the plaintiff had at least psychotic symptoms at the time of his involuntary admission to the Prince of Wales Hospital, but there are no suggestions of any Schizoaffective Disorder.

44. Dr George in a report went on to say this:

"I do not necessarily believe that Mr Crim has reached maximum medical improvement. I would treat him differently as mentioned with a combination of both antidepressant and antipsychotic medication. In this sense, I do not believe that he has reached maximum medical improvement. I have not undertaken whole person impairment, although I did canvass all the activities of daily living with him. I do not see his condition as being related to his employment."

45. There is great irony, in my view, in the defendant now submitting that the plaintiff's condition was stable and capable of assessment when the plaintiff was examined by Dr Westmore on 13 February 2014 and that therefore the plaintiff's claim should fail when, in fact, the treating psychiatrist, Dr Johnson, and the defendant's own qualified psychiatrist, Dr George, did not believe the plaintiff's condition was necessarily stable and had reached maximum medical improvement.

Further recourse to WCC

46. Because of the dispute arising from the opinion of Dr George, the plaintiff instructed Mr Garling to commence further proceedings in the WCC. When that was done, the plaintiff was again assessed by Dr Parmegiani on 10 February 2016. Dr Parmegiani diagnosed 22% WPI. The defendant then filed and served an application to appeal against the decision of Dr Parmegiani. That application was filed on 23 March 2016. The plaintiff as respondent to the appeal formally opposed the employer's appeal. The appeal was referred to a Medical Appeal Panel which gave reasons on 21 June 2016 confirming the assessment made by Dr Parmegiani on 12 February 2016. In other words, the decision of the appeal panel was essentially to dismiss the defendant's appeal.

47. With bureaucratic alacrity, the WCC issued a certificate of determination on 25 July 2016, over a month later, confirming 22% whole person impairment. The plaintiff then gave instructions to his solicitor to make a claim for work injury damages. A notice of claim for work injury damages was served on 1 August 2016. The defendant requested particulars on 15 August 2016. They were supplied on 24 August 2016.

Dr A. Wyatt qualified

48. Mr Garling then made arrangements for the plaintiff to have a conference with an expert, Dr Anne Wyatt, to discuss the circumstances of his work and how his work may have led to his psychiatric illness. Dr Wyatt is a trained nurse. She generated a 32 page report which has three annexures. The first is her curriculum vitae. The second is the Expert Witness Code of Conduct, and the third is a precis of legislation, which Dr White argues informs or fixes the statutory obligations of an employer. Dr Wyatt has a Master’s Degree of Public Health obtained from the University of Sydney. The treatise for her Master’s Degree was "Person‑environment Fit Amongst Student Nurses." I am unsure exactly what that treatise covers, but it appears to relate to how personality amongst nurses contributes to their being nurses. To obtain her Doctorate in Philosophy, Dr White wrote a thesis with this title: "Training Occupational Health and Safety Committee Members: A Critical Evaluation of the Effectiveness of the 1987 WorkCover Program". The Doctor also has a Graduate Certificate in Mediation and a Graduate Diploma in Criminology, but it is hard for me to understand how a Graduate Diploma in Criminology might be referable to the study of the law of master and servant. I am not particularly assisted by Dr White's report.

49. Her report provides a number of definitions which she takes from Government Departments, as if Government Departments regulate the workplace, human relationships, or the Queen's English. For example, using two forms of definition, one about "bullying" and one about "workplace bullying". She believed that workplace bullying included "giving employees impossible assignments." That is despite the fact that the unreasonable behaviour that is involved in bullying would be expected to victimise, humiliate, undermine or threaten the worker. Bullying does imply intimidation, but there was nothing intimidating about the work provided by the defendant to the plaintiff.

50. The plaintiff, on his case, was overworked and thus have the medical experts described the effect of the plaintiff's work upon him. To describe it as "bullying" is, in my view, just a misuse of the Queen's English and is liable to misinform those listening to a court case, and also to cause alarm and distress, when the mere recitation of overwork does not cause alarm and distress to those hearing about it. In any event, it is clear that Mr Garling believed that some report of such nature was required before he could make a claim for work injury damages. Again, he was not cross-examined about that.

51. Dr Wyatt interviewed the plaintiff on 5 November 2016 and prepared a report bearing the date 3 February 2017. In the meantime, the insurer declined the plaintiff's claim for work injury damages on 26 October 2016. On 22 February 2017 after obtaining Dr Wyatt report, the plaintiff served a pre‑filing statement of claim and the documents supporting it. On 17 March 2017, the plaintiff attended an earning capacity vocational assessment arranged by the defendant. On 24 March 2017, he attended an earning capacity psychological assessment for the defendant. On 3 April 2017, he was again assessed by Dr Graham George for the defendant.

52. On 4 April 2017 the insurer served a prefiling defence. On 10 April, the plaintiff's solicitor, as required by law, filed and served an application for mediation of his work injury damages claim with the WCC. That mediation conference was held on 13 June 2017 with Mr Ross Bell, but was unsuccessful. That led to the commencement of the current proceedings by summons, filed 21 June 2017.

Prejudice

53. Before dealing with the two matters raised by the defendant, I should point out a number of matters. Firstly, there is no suggestion of any actual prejudice suffered by the defendant. The passing of time always creates some disadvantage for any defendant, mainly on the basis that the human memory is fallible, and memories fade with the passage of time. However, a number of managers and those with whom the plaintiff worked have been identified, and there was no evidence adduced that any of these persons are unavailable or cannot deal with what the plaintiff says about his interaction with each of them.

54. The plaintiff last worked on 9 June 2011, some six and a half years ago, and that period of time is a long one. Equally, the plaintiff was working at a high level of management in a large and important corporation, and one would think that those above him and those who worked with him in such a business would be intellectually well-endowed and their ability to remember things might be greater than the ordinary man in the street. Whilst the passage of time can be a real problem in many cases, because of the level of management at which the plaintiff worked one would not expect it to be the problem it might otherwise be.

55. Furthermore, the authorities make it clear that the essential requirement for me to consider is whether a fair trial can be held, not an ideal trial.

LUNCHEON ADJOURNMENT

56. I must acknowledge that the onus of proof to grant the relief sought lays upon the plaintiff himself, and I must not and do not wish to invert the onus of proof.

57. That having been said, I should point out that the plaintiff's claim is potentially of large value to him. In a work injury damages claim the plaintiff can only recover his economic loss. I have earlier referred to some economic issues when considering the plaintiff's working conditions, and in particular the bonuses he was earning by his hard work. I should complete what I was saying about such matters.

58. I have previously referred to the bonus he made for the last half of the calendar year 2009. Although the contract that he entered into on 1 September 2009 fixed a total salary package of $154,507.50, that was replaced with a total salary package of $163,227.50 with effect from 1 March 2010. His bonus for the year 2010 was 130% of his target bonus, giving him a total bonus of $20,475 rather than the target bonus of $15,750. His 2011 salary package was for a total of $171,620.50. However, it is clear that the plaintiff could not continue his work after 9 June 2011, and on 15 February 2012 he was awarded a "discretionary bonus" of $6,951.25, compared to his target bonus of $16,750. That indicates clearly the cessation of work before the midpoint of his working year.

Did the plaintiff deliberately allow limitation period to expire?

59. The defendant's first point is that if the plaintiff made a claim for a lump sum compensation at the time his solicitor received Dr Westmore's report of 21 February 2016 in which he assessed a 24% WPI, the time fixed for the running of the limitation period would have stopped until some determination had been made about the plaintiff's entitlement to lump sum compensation. The argument then is that if time stopped running, for example on 22 February 2014, the three year limitation period commencing on 9 June 2011 would not have expired and that the plaintiff may have successfully made a claim for more than 15% WPI and then be in a position to press his claim for work injury damages, but ignoring his claim for weekly payments of compensation.

60. The defendant relied upon certain dicta of Ipp AJA in Itek Graphix Pty Limited v Elliott (2001) 54 NSWLR 2017; [2002] NSWCA 104. His Honour's judgment depends as all judgments do on the facts of the particular case. His Honour sets out relevant facts commencing at [21]. His Honour said this:

"21. The appellant’s business was that of selling various kinds of printing equipment. The respondent, who was born in 1946, had spent much of her working life in the printing industry. From September 1988 to January 1999 the appellant employed the respondent as a sales representative. Her work involved calling on customers and soliciting sales. Her sales territory was large in area and she drove by car to her various customers, taking with her various samples of equipment.

22. In January 1994, the respondent hurt her right knee while laying ceramic tiles at her home. In consequence, in April 1994, an arthroscopy procedure was undertaken on her knee. The operation was a success, and the respondent’s work was not interrupted. Although her knee improved markedly, there was evidence of some residual symptoms.

23. On 29 September 1994, in the course of her duties as sales representative, the respondent was involved in a motor vehicle accident when the car she was driving collided with a car driven by Mr Johnson.

24. The respondent injured her neck, right knee and leg in the collision. She continued working but, on 10 October 1994, she informed Mr Tom Hayward, a senior employee of the appellant (referred to by her as “her boss”) that she was not able to carry out her duties and would have to go home. She consulted a specialist medical practitioner who advised that she should cease work for a month and have bed rest. He gave her a certificate to that effect. She telephoned Mr Hayward and informed him that she would not be at work for a month.

25. The respondent wished to claim workers compensation while she was unfit for work. She discussed with Mr Hayward her need for compensation. He told her that she would have to fill in workers compensation forms in order to obtain compensation. She explained that she could not come into work because she was not fit enough to drive. He told her that he did not have the time to bring the forms to her and she would have to come into the appellant’s premises and complete the forms there.

26. On 24 October 1994, the respondent was driven by a friend to the appellant’s premises to complete the claim forms. She had to climb a set of stairs to get to the appellant’s reception room. The reception was on the first floor of the building in which the appellant’s business was situated. She completed the forms but, while descending the stairs, she fell. She aggravated the injury to her knee and sustained injuries to her back.

27. Her knee deteriorated and she underwent a further arthroscopy on 24 March 1995. Her right patella was removed on 28 July 1995.

28. On 20 September 1995 the respondent commenced proceedings against Mr Johnson for the damages she sustained in the motor accident. In her statement pursuant to Pt 12 r 4A of the District Court Rules, the respondent alleged, firstly, that, in consequence of the motor accident, her right knee had a tendency to give way and this resulted in her fall, and, secondly, that she suffered from disabilities stemming from her fall. Thus, at that stage, she was alleging that Mr Johnson was liable in negligence for the injuries she sustained in the fall, as well as those she sustained in the motor accident.

29. On 21 August 1996 Mr Johnson gave notice of his intention to amend his defence by alleging that the injuries and damage alleged by the respondent in the statement of claim “occurred as a result of a novus actus interveniens” (which was alleged to be the respondent’s fall on 24 October 1994).

30. In January 1997 the respondent’s claim against Mr Johnson was submitted to arbitration. On 17 February 1997 the arbitrator awarded the respondent the sum of $109,808. The respondent was not content with the award and she applied for a rehearing.

31. On 17 September 1997 the respondent filed amended particulars under Pt 12 r 4A. These particulars omitted the allegation that the knee had given way, thereby causing the fall, and references to disabilities caused by the fall were deleted. By inference, the respondent was accepting the validity of the allegation in the defence that the fall interrupted the chain of causation. She was no longer claiming that Mr Johnson was liable for the damages flowing from the fall.

32. Settlement negotiations had taken place between the solicitors for the respondent and Mr Johnson over a period commencing in about June 1997. On 3 October 1997 they agreed on terms of settlement and these were made an order of the District Court. As mentioned, one of the terms of settlement provided that the respondent would be entitled to judgment against Mr Johnson in the sum of $135,000 inclusive of costs.

33. As mentioned, the three year period in terms of s151D(2) of the Workers Compensation Act 1987 expired on 24 October 1997. Prior to that date, the respondent had a conference with Mr Andrew Lidden, of counsel, and her solicitor, Mr Hagipantelis. At that conference she decided that she would not bring proceedings against the appellant for common law damages caused by the fall and would only pursue her claim for workers compensation. I shall later examine, in greater detail, the factual circumstances surrounding this decision. It is sufficient, at this stage, to note that the respondent decided, deliberately, and after receiving full legal advice from her barrister and solicitor on the issue, to allow the three year limitation period under s 151D(2) to expire."

The facts of that case are very different to the facts of the present case. His Honour went on to say this:

"87. In my opinion, in limitation legislation such as s 151D(2) of the Workers Compensation Act, where a broad discretion is conferred to grant leave to sue after expiry of the limitation period, the general question that has to be asked is what is fair and just (per Gleeson CJ in Salido). Or what does the justice of the case require (per McHugh J in Brisbane South Regional Health Authority). In answering such a question, the justice of the case must be evaluated by reference to the rationales of the limitation period that has barred the action, including the four rationales to which McHugh J referred.

The particular significance of a deliberate decision to allow a limitation period to expire

88. I have pointed out that the justice of the case is to be determined by its own individual circumstances. Often, a failure satisfactorily to explain the delay will not be decisive. Ordinarily, the issue of prejudice will be of paramount importance: Nowlan v Marson Transport Pty Limited [2001] NSWCA 346 at [34] – [36]; Malone v New South Wales National Parks and Wildlife Service [2001] NSWCA 345 at [9]. Nevertheless, the justice of the case may be such that the failure to explain the delay and to prosecute the case with the requisite diligence will result in an extension of time being refused.

89. The rule that an applicant, who applies for leave to bring proceedings after a limitation period has expired, must provide a reasonable explanation for the delay (and show that there has not been an absence of diligence on his or her part) forms part of limitation legislation throughout the country and, independently, has long been recognised by the courts. It is hardly necessary to provide authority for this proposition, but, in addition to the authorities to which I have already referred, I would cite the following: Henricks v Agnew (1997) 26 MVR 277, Bartlett v Bartlett (2000) 170 ALR 25, Nominal Defendant v Manning (2000) 50 NSWLR 139, Girando v Girando (1997) 18 WAR 450, Hoy v Honan [1997] QCA 250, Reid v Agco Australia Ltd [2000] VSC 363, Pomeroy v Thwaites Witham Pty Ltd (2001) 79 SASR 489, Menzies v Hoechst Australia Limited (1991) Aust Torts Reports 81-122, Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344, Clark v Robb (1994) 118 FLR 71, Knight v Smith [1975] Tas SR 83.

90. The reason for this requirement is not hard to understand. A limitation provision is an expression of intent by Parliament that persons who wish to sue must do so within the stipulated time unless circumstances exist entitling them to obtain leave. A limitation provision is the general rule and an extension is the exception. In obtaining leave, a party is in effect obtaining an indulgence. To allow parties leave, when they have been careless of their rights and careless of the need to proceed with their disputes within the limitation period, would, ordinarily, be contrary to the justice of the case and would subvert the intent of Parliament. Just as the rules of court must prima facie be obeyed (Ratnam v Cumarasamy [1965] 1 WLR 8 at 12), so must the laws of Parliament.

91. A deliberate decision to allow a statutory limitation period to expire would be a powerful factor against the grant of leave. Where a deliberate decision to allow the period to expire has been made, ordinarily it will be difficult to provide an explanation for that decision sufficiently cogent to warrant the grant of leave. There is ample authority to this effect. I have already referred to Gallo v Dawson. I shall give other examples."

61. His Honour then considered Mason v Murray's Charter Coaches & Travel Services Pty Limited (1998) 88 FCR 308 and Australian Croatian Cultural and Educational Association "Braca Radici" Blacktown Limited v Benkovic [1999] NSWCA 210 and made mention of Secretary of State for Trade and Industry v Davies [1996] 4 ALL ER 289 and then said this:

"98. In my opinion, to grant leave to sue long after the expiry of a limitation period, when the applicant has made a deliberate decision to allow the statutory period to expire, in the absence of special circumstances explaining satisfactorily the conduct of the applicant, would set at naught the purpose of the legislation."

62. Here, I am not persuaded that there was a deliberate decision to allow the statutory limitation period to expire. The plaintiff had certain rights, those rights arose under the 1987 Act, modified as it is by the 1988 Act, and also at common law modified, as it is, by the 1987 Act and the 1998 Act. Furthermore, the plaintiff was unable to obtain any benefit at common law other than the recovery of his economic loss. He was required to obtain any benefits that he could under ss 66 and 67 of the 1987 Act, before pursuing his claim for common law damages: 1998 Act s280A. If he first pursued his claim for a lump sum compensation and he immediately thereafter commenced his claim for work injury damages, he would not be able to recover either his accrued out of pocket expenses in the common law proceedings, and by the recovery of judgment would preclude himself from receiving reimbursement of s 60 expenses, that is hospital, medical and like expenses that he might incur prior to his recovering judgment.

63. It was, in my view, prudent for the plaintiff to pursue his claim for weekly payments and lump sum compensation. In any event, the plaintiff had, once he had obtained the report from his treating psychiatrist, evidence that his condition was not stable and capable of assessment despite the prior opinion obtained from Dr Westmore. Furthermore, the defendant maintained, later when the plaintiff did make his claim for lump sum compensation, that such a claim could not be pursued because the plaintiff's condition was not stable, and he had not obtained maximum medical recovery and therefore that his claim for lump sum compensation should be further deferred.

64. The defendant's argument was not accepted by Dr Parmegiani or by the Medical Appeal Panel. The whole course of conduct, not only of the plaintiff but also of the defendant, does not, in my view, indicate a deliberate waiving of the limitation period. It was kept in mind, but because the plaintiff could only make one application under s 66 of the 1987 Act, it was in the plaintiff's interests, in the interests of his bringing his common law proceedings, that his chances of success of obtaining a WPI 15% or more, be greater if he pursued the matter in the "usual" fashion rather than merely abandoning any claim for weekly payments and s 60 expenses, and pressing on with a claim for a lump sum compensation.

65. Furthermore, in light of the position taken by the defendant, it appears to me that it is not now open to the defendant to raise the matter that it has, because it did not raise it at any time prior to the commencement of these proceedings. Learned counsel for the defendant, Mr Polin, made a submission that often claimants seeking work injury damages, believe that the Court will grant an extension of time in any event and therefore fail to commence proceedings in a timely manner, that is, fail to commence proceedings within the three year limitation period, in the expectation that the Court will almost automatically grant an extension of time under s 151D(2) of the 1987 Act. That has not been my experience.

66. One can understand with the legislative changes made particularly in 2012, that a solicitor would be reluctant to prematurely make a claim for lump sum compensation because that could possibly, firstly, reduce the amount the plaintiff recovered under ss 66 and 67 (if any), defeat his possible entitlement to bring a claim for work injury damages and potentially reduce his entitlement to weekly payments of compensation.

Would a grant of leave be futile?

67. The defendant's next objection is that the grant of leave would be futile. In that regard, Mr Polin relied upon the decision of the High Court of Australia in Koehler v Cerebos (Australia) Limited [2005] HCA 15; (2005) 214 ALR 355. McHugh, Gummow, Hayne and Heydon JJ delivered a joint judgment, their Honours set out the relevant facts commencing at [7]:

"7. Before taking up the job as a part‑time merchandising representative, the appellant had been employed full‑time by the employer as a sales representative. She worked in that position between November 1994 and April 1996. As a sales representative the appellant negotiated sales of the employer's products to independent supermarkets. She was supported by a merchandiser who would set up the display of the goods in the supermarkets.

8. In March 1996, the employer, having lost the right to distribute an important range of products, retrenched the appellant. It offered her re‑engagement as a part‑time merchandising representative from 29 April 1996 and she accepted the offer. The letter of engagement set out only the bare bones of her contract of employment. It stated her starting date, and that her working week was Monday to Wednesday (or 24 hours). The letter "confirmed" her salary structure at a particular hourly rate, a car allowance of a stated amount per kilometre and said that "[o]ut of pocket expenses to support incidental expenditure [would] apply". The appellant's letter of engagement said nothing about the duties she was expected to perform.

9. When she reported for work on the first day of her new job (29 April 1996) she was shown a "territory listing". When she saw the stores that were listed she said at once that there was "no way" she could "do this in 24 hours". Her supervisor told her to try it for one month and, if she felt that she could not cope, she should let him know. This she did.

10. It is not necessary to describe the appellant's complaints to management in any detail. It is enough to say that she complained orally and in writing on many occasions that she had too big an area, too many stores and very little time. Her weekly written reports sometimes recorded that she was working more than eight hour days. But all her complaints were directed to whether the work could be done; none suggested that the difficulties she was experiencing were affecting her health. She told management that there were two ways to solve the problems she was encountering: to reduce the number of stores she was to visit, or to have her work a fourth day. She nominated the stores that should be removed from her list and identified the representatives to whom they could be given. The employer took neither of the steps the appellant suggested and took no other action to alter the work expected of the appellant.

11. The appellant did not contend that the employer's failure to take these steps was a breach of an express or implied contractual stipulation regulating the work expected of her. In particular, she did not contend that her exchanges with her supervisors, when first shown a territory listing, gave rise to some relevant term of the employment agreement. She contended that the failure to take the steps she identified was a breach of the employer's common law duty to provide a safe system of work, a breach of an implied term of the employment contract that the employer would provide a safe system of work, and a breach of a statutory duty owed under the Occupational Safety and Health Act 1984 (WA).

12. The appellant's work required her to lift cartons of product. On 2 October 1996, she reached the point where she felt she could not physically do that any longer, and she went to see her doctor, complaining of aches and pains and difficulty in moving. She thought that her aches and pains were caused by the physical demands of her job.

13. Her doctor first focused on her physical symptoms. Then she was diagnosed as suffering a "fibromyalgia syndrome", that is, a "psycho-physical disorder resulting in [p]ain [a]mplification". By January 1997, anxiety and depression were thought to be clouding the appellant's clinical picture and she was referred to a psychiatrist.

14. At trial, the Commissioner found that she had developed complex fibromyalgia syndrome and a major depressive illness. Her symptoms were found to be "entirely attributable to her conditions of employment between April and October 1996". Although in issue at trial, it is not now disputed that the appellant sustained and suffers from a recognised psychiatric illness of which her work was a cause.

15. Much attention was given at trial to the amount of work expected of the appellant. Comparisons were made between the work she had done when employed full‑time, and the work expected of her when employed part‑time. No doubt such comparisons were made because the appellant's complaints to her supervisors, and to her doctors, had often been put in terms that she was expected to do the same amount of work in three days as she had previously been doing in five.

16. The Commissioner accepted the evidence given by persons familiar with work of the kind undertaken by the appellant in connection with supplying products to supermarkets to the effect that the appellant's workload "was too much to maintain in three days" and that her workload "was very similar to that of a full‑time employee". It was on the basis of this evidence that the Commissioner found that the appellant's workload between 29 April 1996 and 2 October 1996 was "excessive". Having made the finding about foreseeability noted earlier (that with its knowledge of the industry and the particular workload of the appellant the employer required no particular expertise to foresee a risk of injury to the appellant), the Commissioner found that it had been open to the employer to increase the appellant's hours or provide her with assistance. The Commissioner described the expense, difficulty, and inconvenience of such a course of action as "negligible". Judgment was entered for the appellant."

Their Honours then, after canvassing the decision in the Full Court of the Supreme Court of Western Australia, commenced to discuss the content of the employer's duty of care. Their Honours said this:

"21. The content of the duty which an employer owes an employee to take reasonable care to avoid psychiatric injury cannot be considered without taking account of the obligations which the parties owe one another under the contract of employment, the obligations arising from that relationship which equity would enforce and, of course, any applicable statutory provisions. (This last class may require particular reference not only to industrial instruments but also to statutes of general application such as anti‑discrimination legislation.) Consideration of those obligations will reveal a number of questions that bear upon whether, as was the appellant's case here, an employer's duty of care to take reasonable care to avoid psychiatric injury requires the employer to modify the work to be performed by an employee. At least the following questions are raised by the contention that an employer's duty may require the employer to modify the employee's work. Is an employer bound to engage additional workers to help a distressed employee? If a contract of employment stipulates the work which an employee is to be paid to do, may the employee's pay be reduced if the employee's work is reduced in order to avoid the risk of psychiatric injury? What is the employer to do if the employee does not wish to vary the contract of employment? Do different questions arise in cases where an employee's duties are fixed in a contract of employment from those that arise where an employee's duties can be varied by mutual agreement or at the will of the employer? If an employee is known to be at risk of psychiatric injury, may the employer dismiss the employee rather than continue to run that risk? Would dismissing the employee contravene general anti‑discrimination legislation?

22. No doubt other questions may arise. It is, however, neither necessary nor appropriate to attempt to identify all of the questions that could arise or to attempt to provide universal answers to them. What is important is that questions of the content of the duty of care, and what satisfaction of that duty may require, are not to be examined without considering the other obligations which exist between the parties.

23. A deal of reference was made in argument to the decision of the English Court of Appeal in the several appeals heard together and reported as Hatton v Sutherland. The appellant submitted that, consistent with what was said in Hatton, this Court should hold that where an employee claims damages from an employer for negligently inflicted psychiatric injury, only one question need be considered, namely, whether this kind of harm to this particular employee was reasonably foreseeable. That proposition should be rejected.

24. No doubt, as was pointed out in Hatton, there will be a number of factors which are likely to be relevant to answering the particular question identified in that case. Those factors would include both the nature and extent of the work being done by the employee, and the signs from the employee concerned – whether in the form of express warnings or the implicit warning that may come from frequent or prolonged absences that are uncharacteristic. What other matters might make the risk of psychiatric injury reasonably foreseeable was a question not explored in argument. It is a question that may require much deeper knowledge of the causes of psychiatric injury than whatever may be identified as common general knowledge. But neither the particular issues identified in Hatton nor the question from which they stem (was this kind of harm to this particular employee reasonably foreseeable?) should be treated as a comprehensive statement of relevant and applicable considerations. As Lord Rodger of Earlsferry pointed out in his speech in the House of Lords in the appeal in one of the cases considered in Hatton v Sutherland, Barber v Somerset County Council, it is only when the contractual position between the parties (including the implied duty of trust and confidence between them) "is explored fully along with the relevant statutory framework" that it would be possible to give appropriate content to the duty of reasonable care upon which an employee claiming damages for negligent infliction of psychiatric injury at work would seek to rely.

25. Issues about the content of the duty of care were not examined in any detail in the courts below. It was assumed that the relevant duty of care was sufficiently stated as a duty to take all reasonable steps to provide a safe system of work without examining what limits there might be on the kinds of steps required of an employer. Rather, attention was directed only to questions of breach of duty framed without any limitations that might flow from an examination of the content of the duty of care. As earlier indicated, the question of reasonable foreseeability is determinative."

68. In the following paragraph, their Honours said that the Full Court was correct in concluding that:

"That a reasonable person in the position of the employer would not have foreseen the risk of psychiatric injury to the appellant. Because the appellant did not prove that the employer ought reasonably to have foreseen that she was at risk of suffering psychiatric injury as a result of performing her duties at work, her claim in negligence should have failed at trial."

Later their Honours said this:

"41. The conclusion that the employer had no reason to suspect that the appellant was at risk of psychiatric injury is the reason upon which the Full Court's conclusion hinged. Here there was no indication (explicit or implicit) of any particular vulnerability of the appellant. As noted earlier, she made many complaints to her superiors but none of them suggested (either expressly or impliedly) that her attempts to perform the duties required of her were putting, or would put, her health at risk. She did not suggest at any time that she was vulnerable to psychiatric injury or that the work was putting her at risk of such an injury. None of her many complaints suggested such a possibility. As the Full Court said, her complaints may have been understood as suggesting an industrial relations problem. They did not suggest danger to her psychiatric health. When she did go off sick, she (and her doctor) thought that the illness was physical, not psychiatric. There was, therefore, in these circumstances, no reason for the employer to suspect risk to the appellant's psychiatric health."

69. Again, the facts of that case are very different to the facts of the present case, except when one realises that the somatic complaints made by the appellant in that case were later diagnosed to be psychically determined, which is the factual circumstance in the current case.

70. The question is whether the plaintiff has an arguable case that the defendant ought to have been aware that the plaintiff's work duties were causing his ill health or might have been in some way responsible for the deterioration of the plaintiff's health. Despite the submission to the contrary by Mr Polin, the finding I make on the evidence adduced from the plaintiff, but also corroborated by many medical histories, is that the plaintiff's long hours of work with the defendant commenced shortly after he started working for the defendant on 1 September 2009 and persisted throughout his working life with the defendant until he finally stopped working on 9 June 2011. That is the only rational inference, in my view, to be drawn from the thrust of the evidence of the plaintiff which Mr Polin sought to limit merely by pointing out that some of the references to long hours at work appeared to be limited to specified periods. But that is not consistent with the thrust of all the evidence.

71. Minds may differ, but if a man or woman was working for between 13 and 15 hours a day for up to six days a week, firstly his manager or his supervisor, his "boss", ought to have been aware of that and ought to have been aware, as a matter of common sense, that working such long hours in a job was inimical to not only to the physical but also to the mental health of the employee. The whole thrust of the development of Industrial Law over centuries is to limit the hours of work and to improve conditions. Initially much work was merely manual and led to physical exhaustion. These days, much work is intellectual and can lead to mental exhaustion.

72. It ought be clear, from what I quoted from the statement of Joanna Harris of 26 September 2013, that at least by late March 2011 the defendant was well aware of medical evidence concerning the plaintiff's problems, and after his return to work after 75 hours of sick leave in April 2011, of his ongoing problems attending to his work and dealing with his treatment. It is hard to envisage how those responsible for the plaintiff's work could not be unaware of the hours that he was spending doing the work, and there are clear references in some of the plaintiff's evidence to his complaints, about the problems he was having with the work, and of his being given no assistance to deal with those problems.

73. Furthermore, the bonuses being paid to the plaintiff prior to his stopping work are indicative of his meeting targets which he was supposed to reach, but dealing even more effectively with his work and must reflect some awareness by the employer of the effort that the plaintiff was making to cope with his workload. If he was merely doing what he was supposed to do, one would not expect him to be earning the sort of bonuses that he was. The defendant must have been well aware that he was spending a large amount of time in its service.

74. Furthermore, I am not here to try the plaintiff's action. I am only here to ascertain whether he has an arguable cause of action. In that regard, despite any criticism I may have made of Dr Wyatt’s report and its methodology, there is no evidence adduced by the defendant to rebut what Dr Wyatt has had to say. Learned counsel for the plaintiff in their written submissions quoted Dr Wyatt’s executive summary which is this:

"1. Mr Crim sustained psychological injury as a direct result of workplace exposure to bullying, which involved his having to work excessive hours in a dysfunctional corporate environment.

2. He was further distressed by the Defendant's repeated, negligent responses to his work situation, often by omission, which left him exposed to further risk of injury.

3. The Defendant knew or ought to have known that Mr Crim was working excessive hours. Despite the unacceptable risk to Mr Crim's health, the Defendant failed to control the unsafe system of work in which Mr Crim had been engaged for around 18 months.

4. Cumulative damage occurred due to ongoing lack of hazard management.

5. Reasonable intervention to relieve Mr Crim from being targeted by the hazardous acts and omissions and decreasing his workload would have vastly increased the safety of his system of work and considerably lessened the likelihood of his being injured."

Whilst I cannot endorse the use of the word "bullying" in the first paragraph of that summary, I understand the first paragraph of the summary to contain the allegation by Dr Wyatt that his psychiatric injury was a direct consequence of his having to work excessive hours in a corporate environment which Dr Wyatt described as "dysfunctional." Whether that is the appropriate adjective is far from certain, but it appears that there were no persons higher up on the management ladder who could assist the plaintiff in dealing with the problems that he had to deal with, no doubt because they were outside the field in which the plaintiff was operating.

75. However, I accept the argument advanced by Dr Wyatt, or might I say that it is open to a Judge to accept the argument made by Dr Wyatt, that the defendant, if it did not actually know, ought to have known of the excessive working hours being kept by Mr Crim in the service of the defendant. If assistance had been given to him and his hours of work monitored, the current position may never have arisen.

76. In quoting, as she does, from the Occupational Health and Safety Act 2000 and the Occupational Health and Safety Regulation 2001, Dr Wyatt advances further grounds which indicate that the defendant had a positive duty to monitor the plaintiff's work to ensure that it did not endanger his physical or mental health. Whilst it is far from certain that the plaintiff will be successful in his actions, in my view, the plaintiff has persuaded me that he has an arguable case and therefore that the granting of leave would not be futile.

Overview of issues

77. Essentially, the test which I must apply is set out in [87] of the reasons for judgment of Ipp AJA in Itek Graphix Pty Limited v Elliott which I have set out above. The rationales of the limitation period legislation succinctly stated by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 are so well known that I need not repeat them. I have repeated them in many decisions made under s 151D. Suffice to say that some of the considerations are attenuated in work injury damages cases where the plaintiff has a concurrent workers compensation claim, and an employer must maintain an estimate of the potential value of a worker’s compensation claim as well as an estimate for the potential value of a work injury damages claim and sometimes one is not much greater than the other, because a successful work injury damages claim will prevent the employer becoming liable in the future for hospital, medical and like expenses for treatment of an injured worker's physical or mental health.

78. Bearing in mind those rationales, I have reached the view that there being no prejudice to the defendant and the plaintiff not having actively or deliberately waived the limitation period, that the plaintiff is entitled to the relief which he seeks. I will now enquire of counsel as to the form of the order which is sought.

[SUBMISSIONS AS TO ORDERS AND AS TO COSTS]

Orders

79. I make the following orders:

1. I grant leave to the plaintiff to commence a claim for work injury damages against the defendant pursuant to s 151D(2) of the Workers Compensation Act 1978 on or before 4pm on Friday 22 December 2017 in respect of injuries suffered by the plaintiff between 1 September 2009 and 9 June 2011.

2. The statement of claim is to be filed in the current proceedings with the current plaint number.

3. I order the defendant to pay the plaintiff's costs of the summons.

4. Exhibits to be returned.

**********

Decision last updated: 08 February 2018