Feltham v Workers Compensation Nominal Insurer
[2013] NSWDC 189
•27 August 2013
District Court
New South Wales
Medium Neutral Citation: Feltham v Workers Compensation Nominal Insurer [2013] NSWDC 189 Hearing dates: 15, 16, 21, 22 & 26 August 2013 Decision date: 27 August 2013 Before: Neilson DCJ Decision: I grant leave to the plaintiff to commence proceedings in this Court pursuant to section 151(2) of the Workers Compensation Act 1987 on 9 May 2012
I order that the plaintiff pay the defendant's costs of the notice of motion
Catchwords: CIVIL - Personal injury - Workers compensation - Limitation period - Plaintiff commenced proceedings against defendant for workplace related injuries - Defendant relies upon s 151D in defence to whole of claim - Plaintiff brings notice of motion seeking leave to continue proceedings - Question whether three year limitation period had expired - Whether limitation period runs from accrual of cause of action or date of injury of plaintiff - Question of when plaintiff became aware she was required to seek leave to commence proceedings against former employer at common law - Question of whether injuries suffered were "a result of the nature and conditions of the plaintiff's employment" - Whether type of work which plaintiff did for earlier consecutive employer caused or materially contributed to plaintiff's injury - Whether defendant prejudiced by fact that ability to pursue cross-claim against earlier employer is negated because records either lost or destroyed - Evidence of witnesses as to system of work at defendant's premises - Whether defendant prejudiced by effluxion of time and evidentiary deficiencies - Question of delay since defendant's insurer declined workers compensation claim and plaintiff's commencing a common law action - Issue of conduct of plaintiff's solicitor Legislation Cited: Workers Compensation Act 1987 s 151D
Workplace Injury Management and Workers Compensation Act 1998 s 318Cases Cited: Afarin v Excelior Pty Limited [2013] NSWDC 65
Benton v QBE Workers Compensation (NSW) Ltd [2013] NSWDC 107
Braserio v Zodhope Pty Ltd (Sorby DCJ, unreported, 28 March 2013)
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Creevey v Barrois [2005] NSWCA 264
Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244
GIO General Limited v Love [2009] NSWCA 269
Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207
Mirkovic v Davids Holdings Pty Ltd (1995) 11 NSWCCR 656
Opoku v P & M Quality Smallgoods Pty Limited & Ors [2012] NSWSC 478
Parry v Masterpet Australia Pty Ltd [2013] NSWDC 71
Perry v Tanine Pty Ltd (1998) 16 NSWCCR 253
The Salvation Army (South Australian Property Trust) v Rundle [2008] NSWCA 347
Simpson or Thom v Sinclair [1917] AC127 at 192; (1917) 10 BWCC 220 at 235
Strasburger Enterprises Pty Ltd trading as Quix Food Stores v Serna [2008] NSWCA 354Category: Interlocutory applications Parties: Heather Feltham (Plaintiff)
Workers Compensation Nominal Insurer (Defendant)Representation: Mr J Wilson (Plaintiff)
Ms M Dulhunty (Defendant)
Stacks/The Law Firm (Plaintiff)
DLA Piper (Defendant)
File Number(s): 2012/147664
Judgment
On 9 May 2012 the plaintiff, Ms Heather Feltham, filed a statement of claim in this Court. The first six paragraphs of that statement of claim are these:
"1. At all material times the company, Theo's Liquor Pty Ltd (Karlaun Pty Ltd) was a company duly incorporated and liable to be sued in and by its said corporate name and style.
2. At all such times the defendant employer operated a Liquor Store trading under the name Theo's Liquor at The Palm Hotel Motel at Chullora in the State of New South Wales.
3. At all such times the plaintiff employee was employed by the defendant employer as a housemaid and cleaner.
4. It was a term of the contract of employment between the plaintiff employee and the defendant employer or it was a duty of the defendant employer to take all reasonable precautions for the safety of the plaintiff employee whilst she was engaged upon her work.
4A. During the course of her employment with the defendant employer, from its commencement in 1977 to 26 October 2001, the plaintiff employee was required to:
(a) Lift and carry, in her arms and over her shoulders, large bundles of linen, which were heavy, consisting of towels, which were wet, and sheets, all wrapped up in one sheet.
(b) Carry these bundles of linen from the rooms, on her own, along corridors and down stairs to the laundry area on a number of occasions each day.
(c) Move beds and mattresses which did not have legs and were propped up with telephone books.
5. On 26 October 2001 the plaintiff employee was carrying out the duties in her employment with the defendant employer at her place of employment and whilst in the laundry folding sheets she injured her right and left arm [sic].
6. As the result of the nature and conditions of her employment as described above and the injury on 26 October 2001 the plaintiff employee suffered serious body [sic] injury and as a result of the above injury the plaintiff employee was unable to function in her normal manner as a person and in 2006 she suffered psychological injury."
The following paragraph numbered 7 gives particulars of injury. Paragraph 8 contains a formal averment that the plaintiff's injuries were caused by the negligence of the defendant employer and par 9 provides particulars of negligence numbered from (a) to (ff).
On 24 July 2012, Messrs DLA Piper filed a defence to the statement of claim in the name of Karlaun Pty Limited. The plea numbered 5 in that defence is this:
"Further and in the alternative, the Defendant relies upon s 151D of the Workers Compensation Act 1987 in answer to the whole of the Statement of claim."
On 3 September 2012, the plaintiff filed a notice of motion seeking leave to continue the proceedings against the defendant pursuant to s 151D of the Workers Compensation Act 1987 (incorrectly pleaded as 1997) and pursuant to the Court's "inherent powers", the exact nature of which is completely beyond me and beyond any submission by the plaintiff. It is that notice of motion which is currently before me. The notice of motion was listed for hearing with an estimate of two days. It came before me on Thursday 15 August 2013. It continued on the following day as well as on 21 and 22 August and the submissions finished this afternoon at 12.30pm.
The first thing to note is that Karlaun Pty Limited and Theo's Liquor Pty Limited were completely separate companies. The plaintiff acknowledged that when she obtained leave from me to strike out of the first paragraph of the statement of claim the matter "Theo's Liquor Pty Limited" and the brackets around Karlaun Pty Limited. It then transpired that Karlaun Pty Limited had been de-registered on 25 July 2012, the day after Messrs DLA Piper filed a defence on its behalf. After skirmishing between the parties, it was agreed that the name of the defendant be changed to "Workers Compensation Nominal Insurer on behalf of Karlaun Pty Limited (de-registered)".
It then transpired that Karlaun Pty Limited had not employed the plaintiff from some time in 1997 until 26 October 2001 but from 9 May 2000 until 26 October 2001. The Palms Hotel Motel at Chullora was owned prior to 9 May 2000 by Premium Wine Company Pty Ltd, which conveyed the real property for the premises known as 185 Hume Highway, Chullora and 167 Hume Highway, Chullora to Karlaun Pty Ltd together with the business conducted at The Palms Hotel Motel. It would appear that on 9 May 2000 a pre-existing contract of employment between the plaintiff and Premium Wine Company Pty Ltd was novated to Karlaun Pty Ltd. That led to the plaintiff's seeking leave to amend par 4a of the statement of claim to allege a period of employment between 9 May 2000 and 26 October 2001. Despite the defendant's vigorous objection, I allowed that amendment as it was common ground that the plaintiff was in fact only employed by Karlaun Pty Ltd from 9 May 2000, and the plaintiff could not validly assert an injury in the course of her employment with Karlaun Pty Ltd when she was not so employed.
The defendant, by its counsel, complained bitterly of the amendment because it was thought to interfere with such rights as the defendant might have because, initially, the plaintiff was alleging the "nature and conditions of her employment" between some time in 1997 and 26 October 2001. However, the fact remains that it could not stay in par 4A of the statement of claim when the reality was that the plaintiff only commenced working for Karlaun Pty Ltd on 9 May 2000.
The first submission made by the plaintiff was an extremely brave one. The first submission made by the plaintiff, through her counsel, was that the leave which she was seeking was otiose because the three year limitation period prescribed by s 151D of the Workers Compensation Act 1987 ('the 1987 Act') had not yet expired. The plaintiff's submission was that a complying agreement pursuant to s 66A of the 1987 Act was only made in November 2010 and therefore that the plaintiff's cause of action only accrued in November 2010 and that three years since that date had not yet expired.
Counsel for the plaintiff relied upon a decision of Adamson J in Opoku v P & M Quality Smallgoods Pty Limited & Ors [2012] NSWSC 478. At the commencement of [18], her Honour described the plaintiff's cause of action thus:
"The plaintiff was about to finish his nightshift on 30 April/1 May 2004. He was standing near the conveyor belt when he noticed a piece of meat on the conveyor. He endeavoured to dislodge the piece of meat with water from the hose. However, as he did so, he slipped on the floor and the fourth finger of his left, non-dominant, hand was injured when it became caught at the junction between the conveyor belt and one of the rods supporting the conveyor apparatus."
At [61] her Honour said this:
"All defendants pleaded that the plaintiff's claims against them was statute-barred since they were brought well outside the three year limitation period. There was apparent force in this defence; the accident occurred on 1 May 2004 and the plaintiff did not bring proceedings against P & M and HUT until 17 April 2008 when he filed a statement of claim in the District Court or against Kaybron 6 until 16 February 2009."
Kaybron 6 was in fact Kaybron No.6 Pty Limited and was the employer of the plaintiff in that action. At [62], her Honour said this:
"By reason of s 151H of the [1987 Act], the plaintiff could not bring a claim for damages in negligence against his employer unless and until he had met the threshold requirement that he suffer a permanent impairment of at least 15 percent, which was a matter that needed to be assessed. This assessment was not resolved until October 2008 (by a Complying Agreement under s 66A of the [1987 Act] which, curiously, identifies the plaintiff's employer as "Primo Smallgoods"). Accordingly, the cause of action against the plaintiff's employer did not accrue until that date.
The plaintiff's claim against Kaybron 6 was brought within time because it was brought within three years of the assessment of his permanent impairment, being the date on which his cause of action against Kaybron 6 accrued."
When I was referred to this precedent by learned counsel for the plaintiff, I expressed a view that her Honour's views were unorthodox. S 151D(2) of the 1987 Act is in the following terms:
"A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken."
Section 151D(2) does not speak of the date of the accrual of the cause of action. It speaks of the date of the injury received by the worker in respect of which the worker is claiming damages as well as having claimed compensation. Here, that is, in the current case, there is no dispute that the plaintiff reported an injury occurring to her on 26 October 2001 and there is no dispute that the defendant paid workers compensation to the plaintiff from that date at least until 24 June 2009, and lump sum compensation has, in addition, been paid after that date.
There was no appeal from the decision of Adamson J. Considering that the plaintiff was largely unsuccessful in his claim, one can understand why that was the case. Her Honour did not accept the plaintiff in that case as a witness of truth. Her Honour accepted that the plaintiff sustained an injury to a finger on 1 May 2004, but her Honour was satisfied that he had regained his earning capacity by 23 August 2004, a matter of some four months incapacity. Her Honour also found that the plaintiff in that case had been overpaid workers compensation and did not accept that the plaintiff, as a result of the injury to his finger, sustained pain in his arm, shoulder and neck or that there was any regional pain syndrome. It is likely, although it is not clear from the report, that a verdict would have been entered for the defendant.
Counsel for the plaintiff then referred me to the decision of my colleague Taylor J in Afarin v Excelior Pty Limited [2013] NSWDC 65. In that case the plaintiff had suffered a back injury lifting a carton from a pallet on 20 September 2005. The parties in that case had agreed on 22 percent WPI in July 2011 and proceedings were commenced in December 2011. His Honour did not refer to the decision in Opoku but pointed out that the requirements of the 1987 Act that there be at least 15 percent WPI agreed or conceded provided an explanation for the delay in between 20 September 2005 and July 2011. There was nothing unorthodox about his Honour's decision.
The next decision to which I have been referred is that of my colleague Gibson J in Parry v Masterpet Australia Pty Ltd [2013] NSWDC 71. In that case, the plaintiff had injured her low back at her place of employment on 29 March 2004. On 24 November 2006, the plaintiff and her employer agreed that she had 17 percent WPI. In that case, the parties urged upon her Honour that 24 November 2006 was the date from which the limitation period should run. Her Honour described that as a "controversial submission", but one which I have, in these proceedings, referred to as "brave". After referring to the decision in Opoku, her Honour said, at [27]:
"This approach conflicts with many years of settled law in the NSW Court of Appeal. Adamson J does not refer to the many decisions which have held that the three year period dates from injury, not a finding of permanent impairment sufficient to bring a claim. Since the doctrine of precedent and principle of stare decisis operate to ensure certainty in the common law system ... this effectively means that I cannot follow Adamson J's reasoning in Opoku, supra, compelling this approach may be."
Commencing at [36], her Honour sets out earlier decisions made in this Court. At [38] her Honour pointed out that Sorby J refused to follow Opoku in Braserio v Zodhope Pty Ltd, a decision of 28 March 2013. Immediately after [27], her Honour set out the decisions in the Court of Appeal that are binding upon judges of this Court, which led her to refuse to follow the reasoning of Adamson J in Opoku.
The final decision to which I have been referred is that of my colleague Truss J in Benton v QBE Workers Compensation (NSW) Ltd [2013] NSWDC 107. In that case, the plaintiff sustained injury on 27 October 2003. Proceedings were commenced on 17 August 2012, almost nine years after the date of the injury. In that case the plaintiff relied upon Opoku. The plaintiff in that case acknowledged that a decision of a single judge of the Supreme Court does not bind a judge of the District Court because no appeal lies from a judge of the District Court to a single judge of the Supreme Court. However, her Honour pointed out that whilst a judgment of a single judge of the Supreme Court is not binding on a judge of the District Court, it ought be regarded as persuasive and given proper weight and respect. Her Honour pointed out that it follows that the decision in Opoku ought be followed unless there was a compelling reason not to do so, given that its correctness had been challenged. Her Honour then went on to point out that there had been a number of cases in the District Court where Opoku had not been followed. Commencing at [17], her Honour said this:
"17. The principal difficulty which the Opoku decision poses for this court is that in [63] Her Honour makes reference to the date on which the plaintiff's cause of action accrued whereas section 151D makes it clear that the three year limitation period runs from the date on which the injury was received.
18. There is no reference to s 151D in her Honour's judgment in particular at paragraphs 62 and 63. It was submitted on behalf of the plaintiff that the reality is that Her Honour must have had such provisions in mind because she referred at paragraph 63 to the three (3) year period, which is the period mentioned within section 151D. In the circumstances, it was submitted, it is inconceivable that her Honour would not have been referred to s 151D during the course of the hearing.
19. As the court reads the relevant passages in the judgment relied on they do not seem to contain any statement of principle and the process by which Her Honour came to the conclusion she did is not entirely clear. It is not possible to know to what extent concessions were made and issues arising under section 151D and 151H were ventilated during the course of the hearing and whether or not such concessions or submissions were appropriate having regard to the legislation.
20. This court is not prepared to speculate as to what sections Her Honour may or may not have been referred given that there is no specific reference in the judgment to s 151D. If Her Honour had been referred to this section Her Honour did not explain why, despite the wording of the section, a different test for determining the limitation period was applied because of section 151H. In particular Her Honour does not explain why the dates on which the injury was received in section 151D ought be read as synonymous date on which the cause of action accrued if that was what was decided."
At [23] her Honour specifically refers to the decision of Gibson J in Parry Masterpet Australia Pty Ltd, in particular those parts of that judgment where Gibson J had referred to the authorities decided in the Court of Appeal. Her Honour went on to say this:
"24. With the greatest of respect to Justice Adamson, on its face the relevant part of the decision in Opoku would appear to be contrary to the wording of section 151D which is, in my view, clear.
25. For these reasons the court declines to follow Opoku and concludes that the relevant date for the purposes of time running under section 151D is the date of injury, namely 27 October 2003. It follows that the limitation defence pleaded by the defendant has a proper basis and that paragraph 1 of the plaintiff's notice of motion as amended should accordingly be dismissed."
Suffice it to say that I adhere to my initial impression that the decision of Adamson J is unorthodox and I completely concur with the reasons given by Judge Truss and Judge Gibson as to why it ought not be followed. Accordingly, the plaintiff is required to obtain leave to commence these proceedings out of time. I assume the plaintiff seeks an order nunc pro tunc that the imitation period be extended to 9 May 2012.
The next problem which arises is the question of when the plaintiff became aware that she was required to seek leave to commence proceedings against her former employer at common law, when she crossed the threshold provided by s 151H of the 1987 Act. On 2 June 2004, the plaintiff and her former employer, Karlaun Pty Ltd, reached an agreement under s 66 and 67 of the 1987 Act. The plaintiff had been examined by Dr Richard Deveridge on 8 April 2003. Dr Deveridge diagnosed 17 percent loss of efficient use of the plaintiff's right arm at or above the elbow, a 12 percent loss of efficient use of the plaintiff's left arm at or above the elbow, and 5 percent permanent impairment of her neck. Eventually the parties agreed that the plaintiff had 12 percent loss of efficient use of her right arm at or above the elbow, 8 percent loss of efficient use of her left arm at or above the elbow, and 5 percent impairment of her neck. The formal agreement reached between the parties is evidenced by a Certificate of Determination under the seal of the WCC, which became exhibit E. In addition, the parties agreed that the plaintiff was entitled to a lump sum, under s 67, of $12,500 for pain and suffering resulting from the two losses and the impairment which had been agreed. Well after that agreement was reached, Dr Deveridge was asked to give his opinion as to the extent of the plaintiff's WPI as at the time of his assessment on 8 April 2003. The report generated bears date 1 August 2013 and is exhibit H. Dr Deveridge expressed the view that the two losses of efficient use and the permanent impairment, which he diagnosed as a result of his examination on 8 April 2013, represented a WPI of 9 percent.
More recently there was a claim for further lump sum compensation. On 26 March 2010 the plaintiff's solicitors wrote to the insurer of the employer making, amongst other claims, a claim for 44 percent WPI pursuant to s 65A(4) of the 1987 Act, and alternatively a claim for 18 percent WPI pursuant to s 66 of the Act. As I understand, it the first claim was for WPI resulting from a psychiatric condition and the 18 percent WPI was in respect either of all physical injuries or a mere deterioration in the physical injuries. Eventually the plaintiff, on 1 October 2010, made a claim for 8 percent impairment of the neck, 8 percent loss of efficient use of the right arm at or above the elbow, and 10 percent loss of efficient use of the left arm at or above the elbow, being additional claims pursuant to s 66 of the Act, that is, claims additional to those that were the subject of the agreement of 2 June 2004.
On 5 August 2009, the plaintiff was seen by Dr Deveridge, again, who on this occasion diagnosed a 20 percent loss of efficient use of the plaintiff's right arm at or above the elbow; an 18 percent loss of efficient use of the plaintiff's left arm at or above the elbow; and a 13 percent permanent impairment of the plaintiff's neck. One will note that the new percentages certified by Dr Deveridge exceed the earlier agreed sums by the exact amount claimed on 1 October 2010. Dr Deveridge expressed the view that the two losses of efficient use and the permanent impairment which he diagnosed, amounted to 18 percent WPI.
The defendant's insurer qualified Dr Richard Powell. Dr Powell generated reports bearing date 22 September 2010. Dr Powell diagnosed 20 percent WPI. If one wishes to compare apples with apples, Dr Deveridge diagnosed 6 percent impairment of the neck, 6 percent impairment of the left arm and 7 percent impairment of the right arm. Dr Roberts' impairments were 7 percent for the neck, 7 percent for the left arm and 8 percent for the right arm. One can see that Dr Powell's individual impairments and WPI are greater than those of Dr Deveridge. Dr Deveridge's individual impairments under the new system of measurement are contained in a report of 18 February 2010.
Some time in November 2010 the parties reached a complying agreement as to the extent of the plaintiff's WPI. Annexure Q to the plaintiff's affidavit of 2 October 2012 is a copy letter from Vardanega Roberts, who were then acting for the defendant, to the plaintiff's solicitors bearing date 9 November 2010 enclosing a s 23 Notice of Judgment or Settlement and a complying agreement for execution by the plaintiff and return. Those documents were returned to Messrs Vardanega Roberts by the plaintiff's solicitors on 17 November 2010. On 14 December 2010 Messrs Vardanega Roberts sent to the plaintiff's solicitors a cheque for the agreed compensation.
What exactly was agreed is not at all clear from the voluminous documentation put before me, which voluminous documentation is noted more for what is absent than for what is duplicated, triplicated or quadruplicated. However, it is common ground that this complying agreement was reached and, although the evidence does not contain a copy of it, that it was agreed that the plaintiff's WPI exceeded 15 percent, namely 18 percent.
Submissions have been put to me repeatedly by the defendant that the assessments made by Dr Deveridge on 8 April 2003 and represented by the agreement reached on 2 June 2004 indicate that, at that time, the plaintiff had a WPI of 15 percent. I cannot accede to such wild submissions. Firstly, the only evidence as to what the assessment of Dr Deveridge amounted to in WPI terms as at 8 April 2003 is that of Dr Deveridge himself. That report was tendered without objection. Dr Deveridge was not called to give evidence. If it is to be submitted that Dr Deveridge either deliberately or negligently or under some confusion or error got the conversion from the old system into the new system wrong, he ought to have been cross-examined about it. However, it was not done. Furthermore, there was no contrary evidence put before me. The submission rested on form rather than substance. It rested on confusion between the technical terminology of the old table of maims where one talks of loss of efficient use of an item in the table, or the permanent impairment of the back, neck or pelvis, and the terminology of the newer system where there are impairments calculated in accordance with AMA guidelines with a resultant whole person impairment or WPI. One cannot accept that, for example, a loss of efficient use of the left arm at or above the elbow is the same as the permanent impairment of the left upper limb determined in accordance with the AMA guidelines. The systems were quite different.
I therefore accept that it is only from a date in November 2010, when the parties reached a complying agreement, that the plaintiff knew that she had crossed the threshold sufficient to allow her to seek leave to commence proceedings against her former employer to bring an action for damages.
The next area of some controversy, and the cause of further mischief, is the use by the plaintiff in the statement of claim of those dreaded words, "As a result of the nature and conditions of her employment". This is not terminology that one would find in Bullen & Leake, Precedents of Pleading. This is not technical jargon adopted from any Act of Parliament such as the Civil Liability Act 2002 or any other statute in this State, nor in any similar legislation in any other part of the Commonwealth of Australia or in the United Kingdom, or indeed in the common law world. The origin of this phrase is in the speech of Lord Shaw of Dunfermline in Simpson or Thom v Sinclair [1917] AC127 at 192; (1917) 10 BWCC 220 at 235. That was an appeal to the House of Lords from the Second Division of the Court of Session of Scotland. The head note is of interest:
"A workgirl was employed a fish-curer, at Aberdeen, to kipper herrings in a particular shed. While at work there, an adjoining brick wall in the course of erection for a neighbour fell and brought down the roof of the shed in which the girl was at work and injured her. The Sheriff-Substitute awarded the compensation, but the Second Division set the award aside holding that the accident did not arise out of the employment."
Their Lordships reversed the decision of the Court of Session and restored the award of the Sheriff-Substitute. His Lordship said this:
"In short, my view of the statute is that the expression 'arising out of the employment' is not confined to the mere 'nature of the employment'. The expression in my view applies to the employment as such - to its nature, its conditions, its obligations and its incidents. If by reason of any of these the workman is brought within the zone of special danger and so injured or killed, it appears to me that the broad words of the statute 'arising out of the employment' apply."
As Burke CCJ was prone to comment those who plead "nature and conditions of employment" ought to have pleaded "nature, conditions, obligations and incidents of employment".
Eighteen years ago in Mirkovic v Davids Holdings Pty Ltd (1995) 11 NSWCCR 656, I said at 667:
"The phrase 'nature and conditions of employment' is not a term of art, although many who practise in this jurisdiction seem to think so. One Judge of Appeal recently referred to it as 'quaint'. My colleague Bourke J has repeatedly referred to it as a 'meaningless concept'. It is used in this place as a shorthand way of alleging that, although no frank incident is relied upon, there was some aspect of the work carried out by a worker over a period of time, e.g. repeated lifting or bending, which caused some pathological condition or acted upon some underlying pathological condition to cause incapacity. Some classify such a period of work as a series of traumata or microtraumata, others classify it as causing a disease of gradual process within section 15 of the Act (where the pathology was caused by such work) or as the aggravation, acceleration, exacerbation or a deterioration of a disease within section 16. The 'microtraumata' contention was that advanced by the worker on review.
What I am being called upon to do here is to interpret the original decision and award of the Commissioner. I am not called upon to solve the general problem of classification, if there be a general solution."
I went on in that case to point out that the Commissioner, Wright C, had found that the second injury involved was in fact a disease rather than the "microtraumata" submission that had been put by the worker on the review.
The general problem of characterisation of a medical condition caused by a protracted period of work was the subject of some learned commentary by Burke CCJ in Perry v Tanine Pty Ltd (1998) 16 NSWCCR 253. More recently the problem has entertained the Court of Appeal: Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244. The background of that decision is this taken from the head note:
"On 6 April 2005 the Arbitrator determined that between 1990 and 23 May 2002 the worker had received an injury to his right shoulder arising out of or in the course of his employment as a slaughterman with the employer and that that employment was a substantial contributing factor to his injury. The Arbitrator found that the worker was suffering from an aggravation of a disease, being a degenerative condition to his right shoulder as a result of overuse and repetitive trauma while working for the employer. The employer was ordered to pay compensation to the worker. The employer appealed to Arbitrator's decision which review was determined by a Presidential member on the papers and the outcome was generally favourable to the worker."
Amongst the appeal points taken was that it was not open to the Arbitrator to make the decision that he did as there was no evidence that the worker was suffering from a disease or the aggravation of a disease. The decision of the Court was given by Mason P, with whom Santow and Tobias JJA concurred. Mason P commenced discussing the issue now concerned at [49]. After reviewing the evidence, his Honour said this:
"58. On review, the Acting Deputy President held that the Arbitrator's Determination was open to him on the whole of the evidence before him, in particular, the more than the 70 pages of oral evidence by the worker. I agree.
59. The employer submitted in this Court that the Deputy President's decision was wrong in law because:
I. There was no evidence of a 'disease being the failure of the right shoulder to cope with the repeated stresses imposed upon it' from any medical source.
II. The medical evidence summarised by the Arbitrator identified conditions such as 'tendonitis', 'bursitis', 'rotator cuff tendonitis', 'calcific tendonitis', 'rotator cuff lesion', 'right shoulder rotated cuff strain' and 'capsulitis'. There were references on a couple of occasions to the degenerative nature of the problem.
III. Nowhere is there a description of these conditions or processes as being a 'disease'.
60. In my view, the Arbitrator's decision was open to him on the evidence that is referred to in his Reasons. See in particular Dr Rizkallah's opinion that there was 'evidence of rotator cuff and bicipital tendonitis as a result of overuse and repetitive trauma at work'. This is found in his report dated 8 January 2001 that was indubitably relied on before the Arbitrator, not in the report of 20 December 2004 as to which there is some controversy (see below).
61. The failure of an area of the body to cope with repeated stress imposed upon it, leading to pain and loss of function is capable of being found to be a disease process (see generally Armao v Ladue Holdings Pty Ltd (1992) 8 NSWCCR 440; Perry v Tanine Pty Ltd t/as Ermington Hotel (1998) 16 NSWCCR 253). There was in the present case a substantial body of medical evidence as to the nature and origin of the worker's condition which allowed the Commission to conclude that the injury process as disclosed by the evidence was a disease. The evidence was also capable of showing that the disease had been aggravated by the nature and conditions of the work."
The Workers Compensation Act 1987 speaks of injuries and diseases. It does not speak of "nature and conditions of employment". Much woolly thinking and much unnecessary litigation has been caused by people who use that phrase and fail to differentiate between injury and disease. Now this woolly thinking has found its way into common law litigation.
The complaint by the defendant about the amendment of the statement of claim to limit the plaintiff's period of employment was said to cause prejudice to the "defendant" because it narrowed the period of "nature and conditions" that could be relied upon. What I infer was meant to be submitted was that the employment that the worker had at The Palms Hotel Motel at Chullora extended from 1997 to 2001 and that that whole period of work should be seen as causative of the plaintiff's physical injury and therefore the defendant ought be able to bring a cross-claim against the earlier employer of the plaintiff at The Palms Hotel Motel at Chullora, namely Premium Wine Company Pty Ltd.
Under the workers compensation legislation, where there is a finding of either disease or the aggravation, acceleration, exacerbation or deterioration of a disease, the employer is entitled to claim, by the statute, contribution from anyone who employed the worker in the one year preceding the death, injury, incapacity or claim made. There is no such provision at common law. For the defendant to have a cross-claim against an earlier employer, not against a concurrent employer, but a consecutive employer, the defendant would have to have available evidence that the type of work which the plaintiff did for the earlier employer caused or materially contributed to the plaintiff's injury. There is no such evidence other than ipse dixits of lawyers and medical practitioners.
I turn then to consider the various histories. The plaintiff executed a Claim for Workers Compensation. The second page of that document has been photocopied in such a fashion that it is almost all black. The date of execution by the plaintiff is unclear although it appears that it was received by the employer on 20 November 2001. The question, "How did the accident occur, and what were you doing at the time?" has been answered, "Normal duties". The plaintiff was then asked to specify the name and address of any witness. She gave the name and address of Maureen Cassin. When asked to give the time of injury the plaintiff said it happened at 12 midday on 26 October 2001. The plaintiff was also asked to give the date on which she gave notice of her injury. She said that she gave notice on the following day, 27 October 2001. In answer to the question as to when she stopped work the plaintiff said that she stopped work, at 12pm on 28 October 2001. When asked to specify what was wrong with her, the plaintiff said that she was suffering from tendonitis of the right arm.
The Employer's Report of Injury form bears date 21 November 2001. That says that the plaintiff's injury occurred on 26 October 2001 at 12 noon and that the plaintiff gave notice on 27 October 2001 to Joanne Quinn. A description given in the Employer's Report of Injury form is this:
"Happened during the course of the day - felt pain in right arm - by the end of the day could not fold any sheets."
On 26 October 2001 the plaintiff went to the practice that includes Dr Ng, the Ingleburn Medical Centre at 2 Nardoo Street, Ingleburn. The entry in the doctor's notes for that consultation is this:
"Aching around forearm 1/12 especially around elbow. Good [range of movements]. Tender lateral epicondyle humerus. Tendonitis. Cleaner. Prescribe Voltaren."
1/12 indicates a history of the plaintiff's having pain for about one month. Dr Ng gave the plaintiff an ordinary certificate on 26 October 2001 certifying her as being unfit for work until 4 November 2001. The next certificate issued by Dr Ng bears date 7 November 2001 and is in the form prescribed by WorkCover. These prescribed certificates are generally called "WorkCover Certificates". That of 7 November 2001 indicates that it is the "Initial Certificate". That document gives the date of injury as being 26 October 2001, diagnoses a soft tissue injury to the right forearm/tennis elbow, and says the cause of injury was cleaning and stripping and making beds.
The next certificate bears date 16 November 2001 and was issued by another practitioner from the Ingleburn Medical Centre and again diagnoses right tennis elbow and right forearm pain. Those appear to remain the diagnoses by Dr Ng and doctors at his practice until 16 February 2002 when an additional diagnosis of "sore right shoulder/trapezius muscle" was added with the words "now also" meaning it was of recent origin. Since then, the plaintiff's conditions have continued to deteriorate. However, the inference to be gleaned from the notes made by Dr Ng and others at his practice is that the symptoms dated no further back than one month prior to 26 October 2001. The reports of this practice are exhibit 22 tendered in the defendant's case being documents on subpoena from the medical practice. The defendant relies upon an entry on 1 April 1998. That entry as I interpret it is this:
"Sore spot left shoulder, itchy. O/E [on examination] inflammatory spot."
There was then the prescription of something which could be oral medication or might be a topical cream, I do not know. However, there is no further entry about any "orthopaedic" problem until the entry of 26 October 2001. The inference I draw is that the entry 1 April 1998 is of some local dermatological condition such as an ingrown hair, pustule or boil or the like affecting the plaintiff's left shoulder on 1 April 1998 and has absolutely nothing to do with the matters that are now before me.
There are before me a number of medical reports. Most medical practitioners take histories. Sometimes those histories can be of utility. The first history is that recorded by Dr Deveridge when he saw the plaintiff on 8 April 2003. It is this:
"Your client informs me that she worked as a housemaid at The Palms Hotel/Motel for nearly 4 years. She worked 5 hours daily on five and sometimes six days a week depending on the demand. It was her job to clean the rooms, make beds and carry laundry (there were no trolleys provided). She was required to wash, dry and fold the laundry and then place it in lockers. During October 2001 she developed some aching in the proximal part of the right forearm near the outside of her elbow. Over the next few weeks the pain increased and by 26 October 2001 she could hardly lift the sheets from the bin in order to fold them. She saw her local general practitioner, Dr R Ng, who prescribed medication ... which she still requires on a daily basis."
Again, that puts the onset of symptoms in October 2001.
The next report that is before me, chronologically, is that of David Bornstein, an orthopaedic surgeon who saw the plaintiff on 8 July 2003. Dr Bornstein has this history:
"I am told that she sustained a gradual onset of discomfort with a nominal date of injury of 26 October 2001. Basically began in her right forearm in a vague fashion as indicated to me and in the upper arm which seemed to extend to the right shoulder and neck area. Since that time she has now been complaining of similar pains on the left-hand side which has [sic] developed since she ceased employment! She believes that her pains had begun about four weeks before 26 October 2001 which is essentially the date she reported her problem."
Again, four weeks before 26 October is either very late September or early October 2001.
The next report I have follows upon Dr John Harrison's examination of the plaintiff on 17 November 2003. Dr Harrison is an orthopaedic surgeon who was appointed by the WCC as an Approved Medical Specialist. Dr Harrison has this history:
"In the course of her usual work and a month before 26 October 2001, she started to notice increasing patterns of discomfort in her right forearm. This was around the extensor aspect of the forearm extending up to the elbow and it was provoked by active use of her right upper limb. She carried on at work.
On 26 October 2001 in the laundry, she was assisting another staff member to fold sheets and she became increasingly aware of difficulty in managing the rotation, tugging and folding action involved.
The same morning she had difficulty operating the squeegee mechanism on a mop when she was cleaning bathrooms as that added to the pain she was getting at and around her elbow and forearm on the right and she had an element of discomfort extending up her right arm. It extended up to the shoulder (but not the base of her neck at that time).
At the end of her shift, around 12 midday, the manageress was not there for her to report the pain and she left."
Again, the history obtained by Dr Harrison is much the same as the history recorded by Dr Bornstein, Dr Deveridge and by Dr Ng.
The next medical practitioner to examine the plaintiff was Dr Leonard Lee, a psychiatrist. Dr Lee examined the plaintiff on 31 January 2005. The history obtained is:
"Ms Feltham gave an extremely vague history as to how she began to suffer pain initially. She said that her arm was getting sore, "suddenly over a period of time". As this was illogical, I clarified it and she told me that she used to get pain which built up over some time although she was extremely vague. Apparently she had pain first in her right forearm. She had two weeks rest but she said that returning to work made it sore again and she had another two weeks off. Then her employers made her scrub a wrought iron banister and hose the carpark so she ceased work. She said that the pain has subsequently spread to her neck and her left arm because she could not use the right arm."
Again, there is reference in the evidence to the plaintiff making a few, and I believe it is two attempts, to return to work on restricted duties. However, it is clear that the plaintiff first had symptoms in her right proximal forearm, that is, her right forearm near the elbow. The "two weeks rest" initially referred to probably refers to the plaintiff's initial absence from work. There is nothing inconsistent in Dr Lee's history with the history recorded by the other medical practitioners, whose histories I have already quoted.
The next history I have is that taken by Ms Anna Katarino, a consulting psychologist on 17 November 2006. It is this:
"Ms Heather Feltham was employed by Theo's Liquor as a housemaid. She reported that she was carrying out daily chores when she sustained a workplace injury. Ms Feltham injured her shoulder when she was getting the sheets out of the industrial bins and found that she could not move. Ms Feltham stated that she made approximately sixty and up to ninety beds per day and was sore by the time she went home. The injury occurred on 29 October 2001. She attended her local doctor who gave her one week off work and to rest her shoulder. She returned to work on different duties, scrubbing the bathroom however her shoulder continued to be painful."
The further history I need not cite, however that history is again not inconsistent with the earlier recorded histories.
The next history is recorded by a consultant psychiatrist, Dr Selwyn Smith who saw the plaintiff on 1 September 2008. The history is not particularly helpful. It is this:
"Ms Feltham reported a gradual build-up in pain in her right upper limb that gradually worsened to the extent that she consulted her family physician and went off work on 22 October 2001. She stated the right upper limb developed pain with the restrictions of movement. She stated the pain radiated into her shoulder and neck. Following the consultation with her family physician, she was advised to rest for a week and then re-engaged at work on light duties."
Again, the further history need not be cited. Again, the doctor's report is not particularly helpful because he has not tried to isolate when exactly it was prior to stopping work on 26 October 2001 that the plaintiff first noticed symptoms.
The next history is that recorded by Dr Deveridge when he re-examined the plaintiff on 5 August 2009 but in that history taking the plaintiff merely confirmed what she had earlier told Dr Deveridge.
The plaintiff was examined on 12 August 2009 by Mr Greg Anning, a clinical psychologist. Like Dr Selwyn Smith's history, it is not helpful. It is this:
"Ms Feltham reported that her injury developed slowly over a period of time. She described that her arms were getting sore and that one day she couldn't pull a sheet out of the bin. Ms Feltham informed that they didn't have trolleys at work and she and the other housemaids carried everything on their shoulders. She described the bed linen was slung over a shoulder.
Ms Feltham reported that in October 2001 she went to her general practitioner with right elbow pain. She stated that she was put off work for a while to rest before returning to work on light duties. Ms Feltham claims that her employer gave her a scrubbing brush and she was told to scrub the balustrade. This resulted in her aggravating her injury and again going off work."
Finally I have a history recorded by Dr Richard Powell, who saw the plaintiff on 6 September 2010 for the defendant's former solicitor. It is this:
"Ms Feltham advised me that although the date of injury referred to in the documentation is 26 October 2001, she had been aware of the gradual accumulation of symptoms in her right forearm and a lateral elbow over a period of several weeks leading up to this. On the day in question, she was removing clothes out of a basket in preparation for folding, when in addition to her right elbow symptoms she also developed pain in her right shoulder. She was unable to continue working and drove home. She attended her local doctor, Dr Ng, who declared her unfit for work. She remained off work for one week. She was referred for physiotherapy."
Again, according to the history given by the plaintiff to Dr Powell, symptoms started "several weeks" prior to 26 October 2001. That is consistent with the four weeks that have been earlier referred to.
Then there is the plaintiff's sworn evidence. Her first affidavit was sworn on 29 August 2011. It is annexure A to her affidavit of 21 August 2012. In pars 5 to 11 the plaintiff described the type of work she did for the defendant. The affidavit then continues thus:
"12. In October 2001 I began to feel aching in the right forearm near the outside of my elbow. The pain gradually increased and spread along my arm.
13. By 26 October 2001 I could hardly lift the sheets from the linen bin in order to fold them for the beds.
14. I saw my local practitioner, Dr R Ng, who prescribed me medication, including Panadeine Forte and Mersyndol."
The plaintiff was required for cross-examination. She entered the witness box at 3.04pm on 15 August 2013. Her examination finished on that day. She was not challenged at all as to the date of the onset of symptoms. She was recalled on 16 August 2013 and warned and gave some further evidence, but again was not cross-examined about when her symptoms may have developed. The only conclusion any rational tribunal of fact could draw was that the plaintiff's symptoms commenced in late September or early October 2001.
I have already referred to other entries in the records of the practice of Dr Ng, which are identified as the Ingleburn Medical Centre. One will recall that the "nature and conditions" period originally pleaded was from an undetermined time in 1997 until October of 2001. The plaintiff attended upon the Ingleburn Medical Centre on nine occasions in 1997 but there is no mention of any problem the plaintiff had at work or any problem of an orthopaedic nature. The majority of the plaintiff's attendances in 1997 concerned kidney stones. Besides the one attendance for the inflamed spot on her left shoulder in 1998, there was only one other attendance in 1998 and that was essentially about the plaintiff's general health. On that occasion she complained of left-sided chest pain. There were three attendances in 1999 but again only for chest problems. In 1999 there were some misplaced entries but they merely relate to chest X-rays. In the year 2000 there were four attendances but they appear all to have been for a gynaecological condition. There was one attendance in 2001 prior to that of 26 October 2001; unfortunately, the date of that attendance is truncated. It appears to be either February or March 2001. The entry is hard to read but there is nothing to indicate to me that it was for an orthopaedic problem. A cream was prescribed at the time. The entry could relate to varicosities on the left leg but I am completely unsure. In any event, there is no suggestion of any complaint at any stage, for example, prior to Karlaun Pty Ltd taking over control of The Palms Hotel Motel on 9 May 2000.
The defendant has called no evidence on the issue as to whether employment with Premium Wine Company Pty Ltd caused or contributed to the plaintiff's problems since October of 2001. It is abundantly clear that on 9 May 2000 the plaintiff's contract of service was novated from the Premium Wine Company Pty Ltd to Karlaun Pty Ltd. If, instead of her contract of employment being novated, the plaintiff's contract of employment had been terminated and she did not take up employment with Karlaun Pty Ltd, one could hazard the observation that she would not have developed the symptoms which put her off work in September of 2001. There is no evidence that the work that she did, assuming it is exactly the same as the work that she did for Karlaun Pty Ltd before 9 May 2000, would cause the whole or any part of the plaintiff's medical condition. If taken out of the workforce on 9 May 2000, the plaintiff might now be symptom free and injury free. No evidence has been called by the defendant that there is some necessary prodromal period or evidence that is sometimes called when there is a case of the ingestion of a toxin, evidence of an epidemiological nature, to say that so much exposure is required before the level of toxicity of a chemical in the body could cause symptoms. There is no evidence to say that for one to develop a lateral epicondylitis one would have to do so many hours work or do so many hours work over a specified period of time doing a specific type of job. Indeed, for all one knows tennis elbow can come on from one game of tennis which would be less than one shift of six hours at a workplace.
It is necessary to go along this route because the defendant maintains that it is prejudiced by the fact that its ability to pursue a cross-claim against Premium Wine Company Pty Ltd is stymied because all records of that company have either been lost or destroyed. However, there is just no evidence which would enable a cross-claim against the Premium Wine Company Pty Ltd to succeed. Once it is accepted that the plaintiff's symptoms came on in September or October 2001, and once it is accepted that there is no evidence to suggest some necessary prodromal period or some dose related necessity of having to do so much work, any prospective cross-claim against Premium Wine Company Pty Ltd would fail. Counsel for that company, joined as a cross-defendant, could point to the glaringly obvious, which is what I have sought to do in these reasons for judgment which I shall continue delivering tomorrow morning at 10 o'clock.
When I adjourned yesterday evening, I had been discussing the prospects of the defendant's bringing a successful cross-claim against the plaintiff's former employer, Premium Wine Company Pty Ltd. The significance of that is the possible loss of the defendant's chance to bring such a cross-claim.
Creevey v Barrois [2005] NSWCA 264 concerned the granting of an application to extend the limitation period under the Motor Accidents Act 1988. The primary question for the determination of the Court of Appeal was whether, despite the delay and the circumstances in which the delay occurred, a fair trial of the issues between the parties could possibly be anticipated. To determine that question it was necessary for the Court of Appeal to consider whether the appellant suffered prejudice primarily in relation to a lost opportunity to cross-claim against a third party, the time to file such a cross-claim having expired and there being no power to extend or waive the relevant limitation period. That was one argument. An argument that the case did not resolve was whether the limitation period under s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 ran from the time fixed by the statute as the limitation period or from the time to which the court extended the limitation period. At [56], Basten JA said this:
"As noted in the passage from Tekno Ceramics set out above at [50], an assumed loss of a right to cross-claim against a joint tortfeasor will give rise to significant prejudice sufficient to render it unjust to allow a claimant to proceed out of time, but only where the possible claim for contribution has been shown to be viable and realistic, rather than a fanciful or theoretical possibility."
The same point was made in GIO General Limited v Love [2009] NSWCA 269, where Handley AJA, with whom Basten and Young JJA concurred, said at [40]:
"As this court held in Creevey v Barrois ... when considering the loss of rights against a third party the question is whether the claim has been shown to be viable and realistic, and not merely fanciful or theoretical."
The point I was seeking to make yesterday evening was that it has not been demonstrated on this application that the defendant, being the respondent to the motion, has shown that it has a viable and realistic cross-claim against the plaintiff's former employer, that being merely a fanciful or theoretical possibility at best and, in my view, merely unarguable.
The question which I must consider is whether I ought to extend the limitation period pursuant to s 151D(2) of the 1987 Act. The relevant legal tests are clear. In Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207, Sheller JA said:
"2. I have had the privilege of reading the judgment in draft prepared by Ipp AJA. His Honour has exhaustively reviewed cases dealing with the circumstances in which the Court is called upon to exercise its discretion to extend statutory periods of limitation. As his Honour has demonstrated in some statutes the legislature has specified circumstances that must be taken into account and given due weight. In others such as s 151D(2) of the Workers Compensation Act 1987, with which we are here concerned, the legislature does no more than enable the Court to grant leave to a person to commence Court proceedings after the expiry of the limitation period. In broad terms it can be said that a discretion expressed so widely should be exercised in a way which will best serve the justice of the case.
3. The cases have shown that particular circumstances may compel a refusal by the Court to extend time. An example is actual significant prejudice to the defendant brought about by the plaintiff's delay. But it is not correct to conclude that the absence of such prejudice compels an exercise of discretion in favour of the plaintiff. Ordinarily the potential plaintiff is required to demonstrate that circumstances warrant the Court's exercising its discretion to extend the time for commencing proceedings. The applicant bears that positive burden. In Salido v Nominal Defendant(1993) 32 NSWLR 524 at 530 Gleeson CJ said that the proper question for a judge to ask in dealing with an application for leave to proceed is whether it would be fair and just to grant leave. In Parsons v Doukas (2001) 52 NSWLR 162 I said that where a long and unexplained delay had not resulted in significant prejudice to the potential defendant it might be that the discretion would properly be exercised in favour of the potential plaintiff but that the court was in no sense bound so to exercise its discretion. The question was whether the delay had made the chances of a fair trial unlikely."
In the same case, Ipp AJA, with whom Spigelman CJ as well as Sheller JA agreed, said at [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."
Earlier, at [78], his Honour stated the four rationales identified by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. Ipp AJA said:
"McHugh J (at 552) identified four broad rationales for the enactment of limitation periods, generally. These were:
(a) As time goes by relevant evidence is likely to be lost;
(b) It is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed;
(c) It is desirable for people in the community to be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Many in the community have a significant interest in knowing that they have no liabilities beyond a definite period;
(d) The public interest requires that disputes be settled as quickly as possible."
One further matter to be borne in mind is what fell from McColl JA in The Salvation Army (South Australian Property Trust) v Rundle [2008] NSWCA 347 at [96]:
"Brisbane South is authority for the proposition that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant...'Significant prejudice' means such prejudice as would make the chances of a fair trial unlikely ... For a trial to be fair, it need not be perfect or ideal..."
That was cited with approval by Basten JA, with whom Gyles AJA and Hoeben J concurred in Strasburger Enterprises Pty Ltd trading as Quix Food Stores v Serna [2008] NSWCA 354 at [52].
The evidence before me identifies nine potential witnesses as to the system of work at The Palms Hotel Motel when it was under the control of the present defendant and/or as to any complaints that may have been made by the plaintiff. In no particular order, the witnesses are, firstly, Amanda Tucker. Ms Tucker made a statement on 24 July 2012 at The Palms Hotel at Chullora and that statement has been admitted into evidence, by consent, as exhibit L. Ms Tucker was, at the time she made the statement, the manager and licensee of The Palms Hotel Motel. She commenced working there on 27 August 1998. She believed that the plaintiff was not then employed at the hotel motel but she appeared to have been relying upon documents indicating the commencement of the plaintiff's employment with the current defendant rather than the commencement of any earlier employment with Premium Wine Company Pty Ltd. Ms Tucker became the manager/licensee of the hotel motel some time in 2008. It is common ground that the current defendant sold the hotel motel and its business to Coles some time in 2003. According to exhibit 4, a land and property information historical search of the New South Wales property register, transfer of the realty was effected on 13 November 2003. However, many other pieces of evidence before me suggest that the actual change of ownership of the business was in May 2003.
During the period when the plaintiff worked at the hotel motel, and at the current time, according to Ms Tucker's statement, there were thirty-three motel rooms. There are some motel rooms within the hotel itself and a separate building of two storeys which contains a number of the motel rooms. When Karlaun Pty Ltd was the owner and operator of the hotel motel, the housemaids/cleaning staff cleaned not only the motel rooms but also the hotel premises prior to starting work on the motel rooms. When Coles took over the hotel motel, contract cleaners were engaged to clean the hotel but the housemaids/cleaning staff continued to clean the thirty-three motel rooms. Paragraphs 12 and 13 of Ms Tucker's statement are these:
It is clear that Karlaun Pty Ltd was formed as the equivalent of a partnership or joint venture between Mr Karedis's liquor interests and Mr Laundy's hotel interests and, in those circumstances, one can appreciate that there would, no doubt, have been a sign at least over the bottle shop of The Palms Hotel Motel indicating that it was Theo's Liquor and hence a reference in various documents to Theo's Liquor Pty Ltd.
Mr Laundy told me that he and Mr Karedis had a number of these joint ventures but he referred to Mr Karedis as being the "passive investor", meaning, I assume, that Mr Karedis left it to Mr Laundy to make the day-to-day decisions as to the management of the various hotels at which there were obviously Theo's Liquor outlets. Although Mr Laundy called in almost daily to The Palms Hotel Motel, which was between his residence at Strathfield and his usual place of business at Bass Hill, he left the day-to-day management of The Palms Hotel Motel to a manager who he believed, when giving evidence, was Ms Debbie Haskins; but I have pointed out that he may have been in error in that regard from other evidence before me. However, that explains what has happened here, that the Karlaun Pty Ltd joint venture of Mr Laundy and Mr Karedis took over The Palms Hotel Motel in May 2000 and sold it some time in 2003 to Coles.
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Decision last updated: 11 October 2013
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