| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : GLIGOROVSKI -v- WATER CORPORATION [2003] WADC 290 CORAM : COMMISSIONER REYNOLDS HEARD : 12 DECEMBER 2003 DELIVERED : 22 DECEMBER 2003 FILE NO/S : CIVO 136 of 2002 BETWEEN : SLAVE GLIGOROVSKI Plaintiff
AND
WATER CORPORATION
Defendant
Catchwords: Appeal against decision to grant leave to bring an action - Section 47A Limitation Act 1935 - Other reasonable cause - Material prejudice - Whether just to grant leave - No possibility of action succeeding
Legislation: Limitation Act 1935
Workers' Compensation and Rehabilitation Act 1981
Result: Appeal upheld
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Representation:
Counsel:
Plaintiff : Ms R Van Heerwaarden
Defendant : Ms R L Pope
Solicitors:
Plaintiff : Bradford & Co
Defendant : Phillips Fox
Case(s) referred to in judgment(s):
Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866
Hewitt v Benale Pty Ltd [2002] WASCA 163
Jones v SNF (Australia) Pty Ltd & Anor [2002] WADC 207
Pitcher Products Pty Ltd v Country Roads Board & Anor [1964] VR 661
Western Metals Zinc NL v Wesfarmers Transport Ltd & Anor [2003] WASCA 152
Case(s) also cited:
Baxter v Obacelo Pty Ltd [2001] 184 ALR 616
City of Gosnells v Roberts & Ors [1991] 74 LGRA 1
Price v Resolute Resources Ltd (2002) 29 SR (WA) 371
Victorian Railways Commissioners v Casaccio [1961] VR 157
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COMMISSIONER REYNOLDS: This is an appeal by the defendant against orders made by Deputy Registrar Harman on 9 July 2003 whereby he granted the plaintiff leave pursuant to s 47A of the Limitation Act 1935 ("the Act") to commence an action against the defendant for damages with respect to injuries sustained by him in an accident on 30 October 2000. An affidavit sworn by the plaintiff on 10 June 2002 ("the plaintiff's affidavit") was filed in support of his application made on 12 June 2002 for leave to commence the action. An affidavit sworn by Shonel Louise King, law clerk, on 7 July 2003 ("Ms King's affidavit") was also filed in support of the application. Annexed to Ms King's affidavit are copies of the plaintiff's workers' compensation claim dated 2 November 2000 and a statutory declaration made by him on 21 February 2001 in support of his workers' compensation claim. An affidavit of Maria Teresa Russo, a solicitor employed by the defendant, sworn on 6 June 2003 (Ms Russo's affidavit") was filed on behalf of the defendant in support of its opposition to leave being granted.
The provisions of s 47A of the Act 1 Section 47A(1) of the Act relevantly provides: "(1) Notwithstanding the foregoing provisions of this Act but subject to the provisions of subsection (2) and (3), no action shall be brought against any person (excluding the Crown) for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority, or in respect of any neglect or default in the execution of the Act, duty or authority, unless — (a) the prospective plaintiff gives to the prospective defendant, as soon as practicable after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and his name and address and that of his solicitor or agent, if any; and (b) the action is commenced before the expiration of one year from the date on which the cause of action accrued, and for the purposes of this section, where the act, neglect, or default is a continuing one, no cause of action
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in respect of the act, neglect, or default accrues until the act, neglect or default ceases but the notice required by paragraph (a) may be given and an action may thereafter be brought while the act, neglect or default continues." 2 Section 47A(3) of the Act relevantly provides as follows: (3) (a) Notwithstanding the foregoing provisions of this section application may be made to the Court which would but for the provisions of this section have jurisdiction to hear the action, for leave to bring an action at any time before the expiration of 6 years from the date on which the cause of action accrued, whether or not notice as required by subsection (1) has been given to the prospective defendant. (b) Where the Court considers that the failure to give the required notice or the delay in bringing the action as the case may be, was occasioned by mistake or by any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise by the failure or delay, the Court may if it thinks it is just to do so, grant leave to bring the action, subject to such conditions as it thinks it is just to impose." …" 3 The plaintiff did not give written notice as soon as practicable as required by s 47A(1)(a) of the Act or commence an action before the expiration of the one year period as required by s 47A(1)(b) of the Act. 4 The plaintiff gave written notice to the defendant by way of his solicitors' letter dated 23 January 2002. Given that the date of the accident which caused the plaintiff's disability occurred on 30 October 2000 his written notice to the defendant was given about 15 months after the accident. 5 The key provision for the purpose of this appeal is s 47A(3)(b) of the Act. It provides three criteria for consideration namely mistake, reasonable cause and material prejudice. It is important to note that the reference to each of these three criteria is expressed in the alternative. Therefore if any one or more of the criteria applies then the court must
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consider whether or not it is just to allow the action to be brought. The plaintiff bears the onus of demonstrating that leave should be granted. It follows from all of this that the plaintiff bears the onus of demonstrating any one or more of mistake, reasonable cause or that the defendant is not materially prejudiced in its defence. The plaintiff also bears the burden of demonstrating that the justice of the case requires that he be given an extension of time within which to commence his action despite the limitation period having expired. See Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866 per Justice McHugh at 872.
The accident 6 The plaintiff was born on 25 November 1947. At the time of the accident on 30 October 2000 he was 52 years of age and is now 56 years of age. On and before 30 October 2000 he was employed by Serco Water (WA) Pty Ltd ("Serco"). On 21 December 1995 the defendant executed a contract with Serco whereby the defendant and Serco agreed that Serco would perform maintenance services on behalf of the defendant, including maintenance of a water reservoir at Mt Eliza, Kings Park in the State of Western Australia. At all material times the defendant was the occupier of such premises. 7 On the day of the accident the plaintiff was working between reservoirs called Mt Eliza Pond No 1 and Mt Eliza Pond No 2. A pipe of approximately three metres in length joined the two ponds and a connecting valve controlled the water flow between them. The two ponds supplied the City of Perth. The valve was located in and upon a concrete saddle and from time to time the valve needed to be replaced. The plaintiff alleges that he was required to use a jackhammer within a confined space to remove concrete from underneath the valve and sustained a back injury when doing so. 8 Following the accident the plaintiff attended on Dr Dormer on 31 October and 2 November 2000 and was referred for physiotherapy. On 6 November 2002 he was seen by Dr Wong who certified him to be totally unfit for work until 8 November 2000 and treated him with painkillers and further physiotherapy. On 13 November 2000 Dr Wong reviewed the plaintiff and certified the plaintiff fit to return to work for restricted duties. On 25 November 2000 Dr Wong certified the respondent to be totally unfit for work. Since then he has not returned to work at all save for an unsuccessful attempt arranged and supervised by a rehabilitation officer.
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Mistake
9 The plaintiff does not say that his failure to give the required notice or his delay in bringing the action within the required time period was occasioned by mistake.
Reasonable cause 10 The plaintiff's affidavit includes medical reports which provide a history of his treatment and assessment from about the time of the accident until 29 June 2001. 11 The plaintiff first saw his solicitors on 13 February 2001. In pars 35 and 36 of the plaintiff's affidavit he states that he first instructed solicitors to ascertain his rights as he had been certified totally unfit for work and was finding it very difficult to return to work. He also stated that he was concerned as his back pain seemed to worsen, that he had been informed that he would require further treatment and that he hoped that he would recover sufficiently to return to work. 12 It was submitted on behalf of the plaintiff that at all material times the plaintiff hoped that his condition would get better and that when it became apparent to him that this would not occur he provided instructions to seek leave to commence an action against the defendant. Counsel for the defendant has submitted that the evidence presented by the plaintiff fails to disclose any reasonable cause for his delay. 13 There are 17 medical reports annexed to the plaintiff's affidavit. They consist of four reports of Dr Edelman dated 20 November and 4 December 2000, 31 January and 6 April 2001, four reports of Mr Anderson, a rehabilitation physician, dated 16 March, 18 April, 22 May and 19 June 2001, three reports of the Balga Specialist and Physiotherapy Centre dated 8 December 2000 and 15 January and 30 March 2001, two reports of Mr Slinger, a spinal surgeon, dated 7 December 2000 and 17 April 2001, and one report from each of Dr Hanrahan, a rheumatologist, dated 25 January 2001, Professor Mastaglia, a consultant neurologist, dated 4 May 2001, Sir Charles Gairdner Hospital dated 28 May 2001, and Mr Watson, a neurosurgeon, dated 29 June 2001. These various medical reports were sent to one or other of a medical practitioner, Allianz Australia Limited (Serco's workers' compensation insurer) or the plaintiff's solicitors. 14 Mr Slinger in his report dated 7 December 2000 expressed the opinion that the plaintiff's short and long term prognosis was of anticipated improvement and return to his pre-accident employment.
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However, after seeing the plaintiff on 10 April 2001 Mr Slinger in his report dated 17 April 2001 stated as follows: "I would be pessimistic about the short and long term prognosis, he has not returned to work since the accident. I have read the report from his physiotherapist, Sandro Girolamo indicating that despite a most appropriate and thorough preparation by his rehabilitation counsellor in preparing a suitable return to work programme that was unsuccessful and indeed associated with marked increasing symptomatology. I would be doubtful in fact whether any form of rehabilitation will return this man to his employment and, whilst I would not disagree with further attempts at a graduated return to work programme, I believe those are likely to be unsuccessful." 15 Dr Hanrahan in his report dated 25 January 2001 stated inter alia: "I do not believe any other treatment will make much difference. There has been only modest recovery from this injury. He is nearly 54, is in a labouring job, has been in the same job for some time and understandably is probably not particularly keen to continue in heavy labouring and using a jackhammer is quite a physically demanding activity. If he could be redeployed into lighter work on a longer term basis it may assist in returning him to work." 16 Dr Edelman in his report dated 6 April 2001 stated inter alia: 17 Mr Anderson in his report dated 19 June 2001 stated inter alia: "It is noted that Judy McCarthy is attempting to prepare this man for a work trial in the foreseeable future. This man is capable of undertaking some sedentary employment but his work experience is in the manual sector of the labour market
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18 Mr Watson in his report dated 29 June 2001 recommended ongoing conservative management and suggested that the plaintiff may well benefit from being reviewed by a pain management specialist. 19 The medical evidence shows that as at 29 June 2001 The plaintiff was still complaining of being symptomatic. In my opinion the medical evidence as a whole also shows that as at 29 June 2001 there was no reasonable basis for optimism in the short, medium or long term that he would be able to return to his pre-accident employment. 20 From the date of the medical report presented in evidence which is last in time, namely that of Mr Watson dated 29 June 2001, to the expiry of the one year limitation period in the Act is about five months. No medical evidence at all has been presented by the plaintiff on his injury, symptoms, prognosis and work capacity to cover this five month period or any time thereafter. 21 A copy of the redemption agreement pursuant to the Workers' Compensation and Rehabilitation Act 1981 ("the Workers' Compensation Act") dated 13 November 2001 between Serco and the plaintiff is annexed to Ms Russo's affidavit and it provides inter alia: "the worker having elected under s 24 of the Act by a form of election date , compensation payable under Schedule 2, representing 10% loss of Item 36A being for loss of efficient use of the thoracolumbar spine." 22 It can be noted that the redemption agreement was entered into only about two weeks after the expiry of the one year limitation period and that at the time of the agreement the plaintiff accepted that for the purposes of the relevant schedule under the Workers' Compensation Act his injury equated to a 10 per cent loss of efficient use the thoracolumbar spine. He hasn't complained about any other injury from the accident.
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23 On a consideration of all of the evidence presented including the medical evidence and the percentage loss of efficient use of the thoracolumbar spine as agreed by and between the plaintiff and Serco in the redemption agreement I find that from about January 2001 there was no reasonable basis for the plaintiff to believe that he would or could recover sufficiently to return to work, if he in fact honestly held such belief. Indeed the evidence supports the conclusion that he could have and should have given the required notice to the defendant and commenced the action against the defendant within time.
24 There is simply no evidence to support the submission that the plaintiff instructed his solicitors to seek leave pursuant to s 47A of the Act as soon as it became apparent to him that his condition would not improve and enable him to return to work. 25 For all these reasons I find that the plaintiff has failed to establish any other reasonable cause for his delay.
Material prejudice 26 The prejudice to the defendant must be material and it must be prejudice as to the defence or otherwise by reason of the delay. 27 In par 26 of Ms Russo's affidavit she stated that all documents and witnesses relating to the design and implementation of the system of work are within the possession or under the control of Serco. She further stated that since receiving notice of the plaintiff's intended action the defendant terminated its contract with Serco and that in the circumstances the defendant is prejudiced in its ability to properly defend the plaintiff's action on the merits. 28 It was submitted on behalf of the plaintiff that the defendant has not presented any evidence of any attempt to obtain information by way of documentation and witness statements and that without such evidence the court cannot conclude that it would be materially prejudiced in its defence. Further, it was submitted on behalf of the plaintiff that he has named witnesses in a statutory declaration made by him on 1 February 2001 in support of his workers' compensation claim. A copy of that statutory declaration is attached to Ms King's affidavit. The plaintiff's statutory declaration includes the names of two supervisors one of whom the plaintiff reported the accident to on the afternoon of the accident. It also includes the names of two workers who were with the plaintiff at the time of the accident. It was also submitted on behalf of the plaintiff that
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the defendant would not be materially prejudiced in its defence because both the Serco file and the workers' compensation insurer's file can be subpoenaed. 29 In my opinion the defendant has satisfied its evidentiary onus on the issue of material prejudice. The defendant has been denied the opportunity of properly investigating the circumstances surrounding the accident and having the plaintiff medically examined at a time reasonably proximate to the accident and for a long time thereafter. That being so the onus remains on the applicant/plaintiff to show that the defendant will not be materially prejudiced if leave is granted for him to bring the action. 30 The plaintiff has not presented any evidence at all on what investigations and inquiries were carried out by or on behalf of Serco after the accident. There is also no evidence on the current whereabouts and availability of the supervisors and co-workers named by the plaintiff in his statutory declaration. There is also no evidence on what documentation Serco and its workers' compensation insurer have on their files relating to both liability and quantum of damages. In particular there is no evidence on whether or not the plaintiff attended on medical practitioners after 29 June 2001 and, if so, who, when, and their area of expertise. Further, if any medical reports exist in relation to any such attendances does Serco or its workers' compensation insurer know of or have possession of them. 31 For all these reasons I am not satisfied that the defendant would not be materially prejudiced in its defence if the plaintiff was granted leave to bring the action.
Whether it is just to grant leave 32 Whether it is just to grant leave to bring the action is a distinct issue from that of mistake, reasonable cause and not materially prejudicing the defendant in its defence. It is only necessary to consider this issue if the plaintiff has established any one or more of mistake, reasonable cause or not materially prejudicing the defendant in its defence. For the court to decide that it would be just to grant leave to the plaintiff to bring the action it must be satisfied that it would be fair and proper in all the circumstances to do so. See Pitcher Products Pty Ltd v Country Roads Board & Anor [1964] VR 661. 33 I am not satisfied that the plaintiff has shown any other reasonable cause or that he has not materially prejudiced the defendant in its defence
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by his delay. However, for the following reasons I am of the opinion that it would not be just to grant leave for the plaintiff to bring the action anyway. 34 It was submitted on behalf of the defendant that the plaintiff could not succeed in the action because pursuant to s 175 of the Workers' Compensation Act the defendant is a deemed employer of the plaintiff and thereby entitled to the protection given to employers by Part IV Division 2 of the Workers' Compensation Act. It was submitted on behalf of the plaintiff that if any one or more of the provisions of Part IV Division 2 of the Workers' Compensation Act provide a defence to the defendant then they can be pleaded by the defendant in the action once it is commenced and if pleaded the trial Judge would need to determine them on the facts established at trial. 35 Part IV Division 2 of the Workers' Compensation Act applies to the awarding of damages against a worker's employer independently of the Workers' Compensation Act if the disability was caused by the negligence or other tort of the worker's employer and compensation has been paid or is payable in respect of the disability under that Act but for the serious and wilful misconduct of the worker. 36 The threshold issue to determine whether Part IV Division 2 of the Workers' Compensation Act applies is whether or not the defendant is the plaintiff's deemed employer within the meaning of s 175 of the Workers' Compensation Act. The relevant provisions of s 175 are as follows:
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37 The only conclusions arguable and reasonably open on all of the evidence presented on the plaintiff's application for leave to bring the action are that the defendant contracted with Serco for the execution of maintenance work, that the plaintiff was employed by Serco, that the plaintiff was injured in the execution of maintenance work pursuant to the contract between the defendant and Serco, that the maintenance work being carried out by the plaintiff when he sustained his injury which caused his disability is directly a part or process in the trade or business of the defendant, and that the plaintiff's disability occurred in respect of premises under the control and management of the defendant. It follows from all of this that the defendant is deemed to be the plaintiff's employer within the meaning of s 175 of the Workers' Compensation Act at the time of the accident. That being so Part IV Division 2 of the Workers' Compensation Act applies as between the plaintiff and the defendant.
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38 Section 93E(3) of the Workers' Compensation Act provides as follows:
"(3) Damages can only be awarded if — 39 The plaintiff is not entitled to an award of damages against the defendant unless and until he overcomes the whole body degree of disability thresholds imposed by s 93E(3) of the Workers Compensation Act. See Hewitt v Benale Pty Ltd [2002] WASCA 163. On all of the evidence presented before me including in particular medical reports parts of which I have set out herein and also the plaintiff's agreement in the redemption agreement that he has a 10 per cent loss of efficient use of the thoracolumbar spine there is no possibility at all of the plaintiff establishing a degree of whole body disability of not less than 30 per cent if the action proceeded to trial. In Western Metals Zinc NL v Wesfarmers Transport Ltd & Anor [2003] WASCA 152 at [31] the court said: "Of course, it would plainly be vexatious to institute proceedings where there was no possibility that it could ever be established that a relevant degree of disability existed, and in an appropriate case such a proceeding might be struck out. Further, it would generally be oppressive to require a defendant to incur expense in defending proceedings where it was not clear whether or not damages could be awarded, and one would usually expect the court to order a stay of proceedings until the provisions of s 93E(3) had been complied with." 40 Section 93E(13) of the Workers' Compensation Act provides as follows: "(13) If the liability for an incapacity resulting from the disability has been redeemed under section 67, damages are not to be awarded in respect of the disability."
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41 The defendant being deemed to be the plaintiff's employer by application of s 175 of the Workers' Compensation Act and the plaintiff having redeemed his claim it follows that damages are not to be awarded in respect of the disability. See Jones v SNF (Australia) Pty Ltd & Anor [2002] WADC 207.
42 For all these reasons even if the plaintiff had shown some other reasonable cause for his delay and/or that the defendant was not materially prejudiced in its defence by his delay, which he has not, I am nevertheless of the opinion that on all of the evidence presented to me and having regard to the provisions of Part IV Division 2 of the Workers' Compensation Act the plaintiff's action has no possibility of success and so it would not be just to grant him leave to bring it.
Conclusion 43 For all these reasons I am of the opinion that the plaintiff should not have been granted leave pursuant to s 47A(3)(b) of the Act and I propose to order that the appeal be upheld and that the orders made by Deputy Registrar Harman on 9 July 2003 be set aside. 44 I will give the parties the opportunity of being heard on the question of costs.
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