Hibbs v Ready Workforce Australia Pty Ltd

[2022] NSWDC 427

District Court

New South Wales

Medium Neutral Citation:

Hibbs v Ready Workforce Australia Pty Ltd [2022] NSWDC 427

Hearing dates:

21 September 2022

Date of orders:

27 September 2022

Decision date:

27 September 2022

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

Order:

(1) Notice of motion dismissed; application to extend time under s 151D of the Workers Compensation Act 1987 (NSW) refused.

(2)   Proceedings struck out and dismissed.

(3)   Plaintiff to pay defendant’s costs, with liberty to apply.

(4)   Exhibits retained until further order.

Catchwords:

WORKERS COMPENSATION - application for leave for extension of time - work injury damages - plaintiff injured in 2001 - explanation for delay - strength of case - presumptive and actual prejudice - discretion to grant leave not exercised

Legislation Cited:

Workers Compensation Act 1987 (NSW) s 151D

Cases Cited:

ABALink Early Intervention Services Pty Ltd v Danford [2019] NSWCA 97

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

Chaffey v MPM Maintenance Services Pty Ltd & Anor [2019] NSWDC 260

Creevey v Barrois [2005] NSWCA 264

Gallagher Bassett Services NSW Pty Limited v Murdock [2013] NSWCA 386

Gower v State of New South Wales [2018] NSWCA 132

Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128

Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447

Itek Graphix Limited v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207

Paikan v Western Sydney Local Health District

Young v Reece Australia Pty Limited [2018] NSWDC 465

Category:

Principal judgment

Parties:

Plaintiff/Applicant: Mr Corey Daryl Hibbs
Defendant/Respondent: Ready Workforce Australia Pty Ltd

Representation:

Counsel:
Mr B Carney (Plaintiff/Applicant)
Mr P Stockley (Defendant/Respondent)

Solicitors:
Plaintiff/Applicant: P K Simpson & Co
Defendant/Respondent: Moray & Agnew

File Number(s):

2022/00083078

Judgment

The application before the court

1. The plaintiff by notice of motion filed on 22 July 2022 seeks the following orders:

“1. Order that the Plaintiff be granted leave pursuant to Section 151D of the Workers Compensation Act 1987 to extend time to continue proceedings against the Defendant.

2. Order that the defendant pay the Plaintiff’s costs of this Notice of Motion.

3. Any further orders deemed necessary by the court.”

2. The plaintiff relies upon the following affidavit material:

1. Affidavit of the plaintiff sworn on 17 June 2022.

2. Affidavit of Mr K Simpson sworn on 17 June 2022.

3. The defendant opposes the application, relying upon on the affidavit of Chris Rioden affirmed on 19 September 2022.

4. The plaintiff suffered an injury on 13 December 2001, three days after commencing work at an unknown IGA store, having been sent there by the defendant, a labour hire firm. He reported the incident on the day and five days later, after suffering more pain, he consulted a medical practitioner and was certified as unfit for work. He was not retrained, preferring to complete a study course, but obtained a s 66 entitlement on 9 May 2007 and a s 66 Complying Agreement for 15% on 8 March 2012. He obtained a further certificate on 23 August 2013 for s 66 $3000 for 4% left leg use above the knee and s 67 payments of $8,250. No advice about common law entitlements appears to have been discussed with the plaintiff until 8 August 2017 although a report of Dr Bodel dated 24 September 2015 (two days after the plaintiff’s spinal fusion operation) provided an estimate of 23%. The plaintiff had further spinal surgery on 7 August 2018.

The plaintiff’s affidavit

5. The plaintiff, who finished school in 1995, states that he worked as a labourer and machine operator for various companies before commencing work for the defendant, a labour hire company, on 10 December 2001. He was sent by the defendant to work at premises described only as an “IGA warehouse in Blacktown”. He commenced there on 10 December 2001 and suffered an accident while lifting boxes of soft drink on 13 December 2001. Five days later, he had further pain, saw a doctor and ceased work.

6. The description of the circumstances of injury, as set out in his affidavit at paragraphs 9 and following, are brief and unhelpful:

“On 13 December 2001 I was engaged in duties as a storeman which involved heavy lifting, bending, stooping and other strenuous body movements. I was lifting boxes of soft drink when I injured my lumbar spine and left leg and consequential injury to my right leg. I continued to work over the next few days. I reported the accident to my supervisor.

…

I developed pain in my back after my eighth day of work with the Respondent, which is associated with the nature and condition of my work in general. On one particular occasion, I was bending under a pallet rack when the pain suddenly worsened and I had to stop work and seek treatment from my doctor.

I was then certified as being unfit for work.”

7. The plaintiff states, in paragraph 13 of his affidavit, that WorkCover discussed retraining him, but that he decided his best chance of work was to continue a university course (a Bachelor of Information Technology) he had already started in Ballarat, so that was where he went. He completed his course in 2004.

8. This brief description is all that is provided by the plaintiff (who was not cross-examined) in his affidavit. The plaintiff adds, in paragraph 10, that his solicitor has prepared “a full chronology of events that have occurred to me since my accident until today” and that the chronology, which he has read, is “true and correct”. The documentation attached to the chronology consists almost entirely of medical records.

Mr Simpson’s affidavit

9. The plaintiff relies on the affidavit of Mr Kato Simpson, which attaches a chronology and an unindexed 672-page bundle of material. This is of little assistance because:

1. A number of the documents are illegible (see, for example, pp. 38 - 46, 211 - 222, 230 - 320, 322 - 443).

2. The documents are not in any chronological order.

3. Only a handful of documents predate 2011, so the first ten years following the plaintiff’s injury are largely undocumented.

4. The affidavit seems to have been put together by just copying the file.

5. As noted above, these documents consist almost entirely of medical records, as opposed to court documents, reports of injury, statements or other work-related documentation.

The medical documentation

10. One of the few documents attached to Mr Simpson’s affidavit which dates back to the time of the injury (it is dated 19 March 2002) is a radiology report which has been poorly copied but appears to say:

“Tomographic examination of the pelvis, sacroiliac areas and hip joints and including the distal lumbar spine demonstrated the fifth femoral [illegible]. There was no other abnormality evident.

On these findings there is no cause found for the patient’s low back pain.

In particular there is no evidence of sacro-iliitis [sic] but the early acute phase of this disorder may be missed.”

11. Only page 1 of this document is available.

12. A report dated 20 March 2002 from Dr Perera, an orthopaedic surgeon, provides more detail:

“I saw Corey in my private rooms on the 18^th of March. It was interesting to note that I had previously seen his brother Terry some years ago, also in connection with a back problem also sustained as a work related injury, and as far as I am aware Terry has been on workcover himself, and may even be doing so to date. There may after all be some genetic influence about both Terry and Corey’s problems.

Corey apparently hurt his back at work while packing foodstuffs in a supermarket in NSW, somewhere midway through December 2001. It was interesting to note that he had been in that particular occupation for only four days when his problem arose. he said that he spent had become stiffer and stiffer during the day, and as a result he had rung in sick the following day and had the day off, and worked one day I think after that, and then packed in it in altogether. He has not worked since.

he has apparently seen one or two orthopaedic surgeons in Sydney, and he was apparently advised by a Dr Cyrus Irani, to seek treatments from Dugal James, but unfortunately for Corey Dugal James does not deal with back problems, and Corey has been therefore denied access to Mr. James’ expertise.

Corey also went on to inform me, that he had been advised that his treatment and management require investigation with an MRI scan, and I was quite impressed by the advice that at being offered to him to date.

He stated that he was “not feeling pain at the moment”. However he said that when he “pushed in on the left side, from day today, he felt really sore". he demonstrated all of this to me, standing up, and pushing in over the posterior left iliac crest region around about the attachment of his iliolumbar muscles and ligaments.

Her has had no significant leg pain at any time.

He has also had no alternation with bowel or micturition habit.

He said he has had no back complaints in the past, but that he has always been in labouring type employment, working with “bricks and concrete and that”. He reminded me about his brother Terry on mentioning all of this.

His treatment to date has consisted of a mix of laser treatment, microwave, needle acupuncture (“best of all”), and a TENS machine. He has seen Colin Faulkner here in Bendigo, and “he seemed to find the problem”. He attends there on three days per week.

At present he is in a fulltime study course in IT computing, and is “not going back to labouring”. He said that the physio said that labouring was out of the question.

He also informed that he had been booked to have a bone scan done and was having it carried out on the 19^th of March.

Clinically I could find very little wrong with the man. He has mild restriction of lumbar flexion and extension, with some tenderness in the left iliolumbar region. He has no demonstrable neurological changes in his lower limbs, with Grade 5 muscle power in all muscle groups, bilaterally present and equal tendon reflexes, and flexor plantar response. There is no evidence of sensory impairment in his legs. He has a negative slump test bilaterally.

I suggested to him at the time that he should continue with physiotherapy treatment, and since Colin had found the problem, that it was likely that he would improve. He suggested at this stage that I should stop “piss farting” with him, and get on with investigating him with an MRI scan, because that was the advice he had received from the eminent Orthopaedic surgeons who had seen him in New South Wales.

I assured him of the fact that I do not in my practice “piss fart” with anybody, and that I would write to his workcover insurers seeking their permission to investigate him with the magical MRI. I also suggested that I would wait to receive a copy of the report of his bone, to see if this was of significance.

I am of the opinion that his injuries are essentially muscular ligamentous in nature, and I have advised him quite firmly that he does not require any form of surgical intervention, but needs to continue with a back care and rehab program, and no doubt his continuing studies in IT computing, should lead to better and greater things in the future.

If his Work cover insurers approve his further investigation with an MRI scan, I will arrange this for him, in order to satisfy him that the “piss farting” has ceased.

Thank you for your referral.

With kindest regards.” (pp. 589 - 90)

13. There is very little material for the next six years.

14. A radiology report dated 29 September 2008 notes “mild degenerative change affecting the L5-S1 disc” but “no specific cause” for left-sided sciatica was detected (p. 591).

15. A report from Dr Timms, a neurosurgeon, dated 18 August 2010, is as follows:

“Re: Mr Corey Hibbs, [address redacted]

Date of Birth: [redacted]

Thank you very much for continuing the care of Corey whom I have seen a number of times since having a back injury approximately 10 years ago. He unfortunately was involved in a motor vehicle accident in February of his year and that I suspect may have aggravated his symptoms as he has more pain in the left side and at times down the leg. I understand as a result of the motor vehicle accident, he also injured his left shoulder.

Given that things are worse, we intend to monitor the situation with serial MRI scans and I think this is warranted in this case. I will review him after a new MRI scan and keep you informed of the results and treatment plan.

Thanks again for your referral.” (p 592)

16. A follow-up MRI of the lumbar spine on 20 September 2010 noted mild degenerative changes at the L4/5 and L5/S1 discs, as well as this disc bulge being in contact with the left S1 nerve root in the lateral recess.

17. On 9 November 2011 Dr John M Grant, a neurosurgeon, provided a lengthy report. The description of the plaintiff’s work history as being of some duration is at variance with the more accurate reports of a decade beforehand:

“I have today 9^th November reviewed Mr Corey Hibbs. Mr Hibbs is a 33 year old man who at present works as a teacher teaching Mathematics and IT Technology. He gave a history of having whilst working as a storeman in 2001, work that did require frequent bending and lifting, becoming aware of low back pain and discomfort particularly noticed early in the morning s. Initially when he tried to work his symptoms did seem to improve to a degree but because of persistent pain and the symptoms being aggravated by attempting to work which required lifting objects such as boxes of drinks, he found that he was unable to cope. He had difficulty in moving or flexing his spine and ceased work, and then returned to undertake a University Course. He apparently graduated in 2004.

Throughout this time he apparently has been aware of low back discomfort and at times some discomfort and sensory symptoms in the left leg. These symptoms have resulted in him having to restrict the number of days work that he undertakes. He finds that it is difficult to undertake any physical activity. His symptoms are aggravated by walking any distance and he noted that trying to ride a bicycle recently only made things worse. He continues to be aware of subjective sensory changes in the left leg and pain in the left along with his back pain. The distribution of the pain and symptoms in the leg would appear to be over the L5 dermatomal distribution.

I note that he has had physiotherapy, acupuncture treatment and chiropractic treatment all of which do not seem to have helped. He does not I note take any medication at this stage. He says that he can with a restricted day’s work cope with his work at this time.

I note that he is unable to take any activities such as gardening or work that requires him to lift. This is a change in view of the fact that earlier in his life he was always able to be active. He undertook farming work and also undertook some work in concreting.

Previous history

In his previous history the only significant illness that he apparently suffers is a thyroid deficiency for which he takes Thyroxin.

Clinical examination

On clinical examination today there is a reasonable range of spinal movements. However, the left knee jerk and left ankle jerk in comparison with the right are depressed. There is some blunting of sensation noted in L5 dermatomal area on the left side. There is some loss of tone in the left gluteal and hamstring muscle groups and there is slight restriction of straight leg raising on the left side.

Investigations

I reviewed plain x-rays taken in 2001. These show some narrowing of the L5/S1 intervertebral disc space. A scan carried out in September of 20098 showed some bulging of the L5/S1 intervertebral disc tissue. A CT scan in early 2009 shows I think some possible bulging of the L4/5 intervertebral disc tissue but there is a disc prolapse at the L5/S1 level which it is to be noted has a bias towards the right hand side. An MRI scan carried out in September of last year shows some dehydration at the L4/5 disc tissue, and at L5/S1 level there is a disc bulge with I think on these films a possible bias towards the left side.

In answer to your specific questions

1. History of the injury as related to you by Corey Hibbs

The history of this man’s illnesses is given in the body of the report. In summary, following work activities in 2001 he began to suffer with low back pain and left leg pain and sensory disturbance which symptoms have persisted over the period of time without benefit from various forms of conservative therapy. He can at this stage, however, he feels, cope with his work four days a week as a schoolteacher of Mathematics and IT Technology.

2. Employment history, including prior related injuries.

I note that prior to the onset of this symptomatology this man has always led an active life and been involved in physical activities such as farming. Until 2001 he did not apparently suffer from any low back symptomatology

3. Findings on examination, diagnosis, and whether the condition is consistent with the history given.

The clinical finds are given in the body of the report. In summary he does evidence signs of an L5 nerve root lesion on the left side.

The history is consistent with a person who has developed a disc prolapse as the result of repeated bending and lifting. I think one must accept that the onset of this symptomatology was the result of the work that he was involved in.

4. Do you consider that he has suffered an aggravation to a pre-existing or underlying condition, and has the aggravation ceased?

As there was no previous history of any low back symptomatology and he was evidently able to be physically active I see no suggestion that this is an aggravation of a pre-existing entity.” (pp. 594-596)

18. An MRI of the spine taken on 25 August 2014 notes at L5/S1 a posterior disc protrusion without any significant vertebral canal narrowing (p. 599).

19. A report from Dr Casikar dated 29 March 2015 provides the following description of the injury:

“Background

Mr Hibbs attended the consultation alone. I did not have any identification document. He is now a school teacher.

History

The date of the injury is 13 December 2001. At that time he was working as a stores person for IGA. Two days before this date the back was stiff and has gradually progressed. On 13 around 6.45am before he was lifting a box of drinks he developed an acute back pain. He consulted a local family physician. He does not remember his name. The family physician indicated that he should put in a workers compensation claim. He also advised him to take medications for pain. He had a CT scan. Following this examination the insurers with the help of WorkCover offered retraining. He already had some exposure to the uni lifestyle. Mr Hibbs decided that he should have a vocational redirection.

He went through a training program in IT and completed this program in 2004. He also did a course in diploma in education. By 2005 he had completed both the IT training and the diploma in education. In 2007 he was employed as a teacher.

Mr Hibbs indicated that his back pain is still persisting. It seems to increase when he involves himself in mowing the lawn or whipper snipper. At other times he seems to be able to manage his back pain. His job does not involve lifting.

In February 2010 he was involved in a motor vehicle accident. The car turned over. He had severe pain in the left shoulder. Mr Hibbs indicated that his back pain did not get worse after this injury. Between 2008 and 2014 his medical problems were managed by his family physician Dr Timms. On his suggestion he used to take Panadeine Forte as and when required in addiction to physiotherapy, chiropractic treatment and acupuncture.

In 2014 there was a suggestion of a spinal fusion. This has not been approved.

Mr Hibbs now takes Oxycodone and Panadeine Forte. He stopped working on 22 February 2015. He indicated the main reason was that he was unable to drive 50km each way to his workplace.

Mr Hibbs indicated that his problems of his back have been progressive since 2001.” (pp. 601 – 602)

20. Dr Casikar goes on to say (at p. 603):

“Opinion

Mr Hibbs has a constitutional degenerative disease of the lumbar spine. In my opinion his present symptoms are due to a gradual progression of the disease. This is not related to his employment. Since the injury of 2001 Mr Hibbs has not been doing any heavy work. He did not work between 2004 and 2007. He has been doing a teacher’s job which does not involve any heavy lifting. I do not believe his present symptoms are related to his workplace injury that occurred in 2001.

…

What is your diagnosis of the injury on 13/12/2001?

The history, the clinical examination and the diagnosis have been addressed in the body of my report.

Mr Corey Hibbs reported to Mr Timms that he had an aggravation in 2005 and then in February of 2010, another aggravation following a motor vehicle accident. Do you consider that his condition has been aggravated by these incidents & has the aggravation now ceased?

Mr Hibbs had an aggravation to this back pain in 2005. At this time he was carrying his first child. This was not a workplace injury. He had a motor vehicle accident in 2010. Mr Hibbs indicated that he had an injury to the left shoulder. The back pain did not get worse after the motor vehicle accident. Therefore I believe that the motor vehicle accident did not aggravate his pre-existing degenerative disease.

Please provide your opinion of Corey Hibbs’ fitness for employment of any sort (including pre-injury employment), with any restrictions.”

Mr Hibbs is fit for suitable hours of teaching. His main barrier seems to be driving. I m not sure if this is a valid reason. In my opinion Mr Hibbs should be able to drive the distance and continue his teaching job. Perhaps if this is not possible he should think of doing a similar job at a location closer to his home.

Is the ongoing in capacity due to the work injury 13 December 2001?

Mr Hibbs’ present incapacity is not due to the workplace injury that occurred on 13 December 2001. I believe he had a musculoligamentous injury which has recovered. These kinds of injuries normally recover in about six to eight weeks.

Mr Hibbs’ present complaint are mainly due to the natural progression of the degenerative disease of the lumbar spine.

Could you please provide your opinion whether or not the proposed surgery requested by Mr Craig Timms is “reasonably necessary” treatment for Mr Hibb’s work related condition 13 December 2001? (As defined within the Workers Compensation Scheme).

The spinal fusion suggested is an acceptable treatment to address problems related to the degenerative disease of the lumbar spine. Mr Hibbs has persistent back pain which is not getting better. Therefore the spinal fusion is an acceptable procedure. However, it would be difficult to indicate that the necessity for this fusion is directly related to the injury that he had in 2001.

…

5. Acceptance – acceptance of a particular regime of treatment by the medial profession has to be considered. Treatment regarded as routine by the medial profession is unlikely to be considered other than reasonably necessary. Is the treatment undertaken rejected by a number of Royal Colleges including those of Physicians, Psychiatrists and Pathologists as having any sound medical basis.

Mr Hibbs is doing predominantly a teacher’s job. Even if he goes through the spinal fusion, he would not have problems in getting back to his teaching job. The job does not involve any heavy lifting, therefore in my opinion, even following the spinal fusion, he would be able to pursue his job as a teacher. However, it would be difficult to justify this fusion as a direct consequence of his workplace injury that occurred in 2001.”

21. According to the chronology attached to Mr Simpson’s affidavit, the plaintiff consulted his current solicitors on 7 February 2006. I found an agreement in the file dated 26 April 2007 (p. 2) and I note that the plaintiff obtained a s 66 Workers Compensation settlement on 2 May 2007. He was examined by Dr Bye on 12 July 2006 and this report appears to have been the basis of the settlement.

22. As is noted above, the plaintiff had other health issues during this period, including a motor vehicle accident, but stated in his affidavit that these did not impact on his back problems. He did not refer to the incident where he carried a child that Dr Casikar referred to.

23. During this time, on 29 August 2013, the plaintiff’s solicitors wrote to the solicitors for the respondent claiming further benefits. There was further desultory correspondence between his solicitors and the solicitors for the defendant. After a teleconference on 21 August 2013, a certificate of determination was issued on 30 September 2013. The plaintiff discontinued the proceedings on 30 September 2013 after a complying agreement that the defendant pay s 66 claims for a further 4% left leg and s 67.

24. There the matter remained, until the plaintiff sought advice about a s 74 notice dated 31 March 2015 disputing liability for back surgery. The plaintiff’s solicitors wrote to doctors seeking clinical notes and made an appointment for the plaintiff to see Dr Bodel on 12 August 2015.

25. On 22 September 2015, the plaintiff underwent spinal fusion at the L5/S1 level. He had been on the public health system waiting list for this operation for years.

26. Dr Bodel’s report was forwarded on 24 September 2015, two days after the plaintiff’s surgery. He started by noting that the plaintiff had previously been seen on 12 August 2012, referring to the whole of the history of prior complaints and also an earlier assessment by the Workers Compensation Commission of 15% for the back in 2007 plus 4% for the leg in 2013. He then stated (wrongly) that the plaintiff had a fusion in February 2015 that had failed.

27. Dr Bodel gave the following impairment assessment:

“He has a DRE lumbar category IV level of assessable impairment in accordance with the description in Table 15-3 on Page 384 of AMA5. He has had a “successful or unsuccessful attempt at surgical arthrodesis” and the base rating for this category is a 20% Whole Person Impairment.

His activities of daily living have been moderately compromised in accordance with Item 4.30 on Page 30 and Item 4.31 on Page 31 of the Third Edition of the WorkCover Guidelines giving a 2% loading and a 22% Whole Person Impairment overall.

The scarring is significant and I would rate the characteristics of the scar for his lumbar fusion as a 1% Whole Person Impairment in accordance with the TEMSKI Scale because of pigmentation, loss of subcutaneous tissue and some sensitivity in the scar from overlying clothing.

This gives a 23% Whole Person Impairment overall and there is no basis for a deduction for pre-existing impairment as this gentleman was only approximately 22 years of age at the time the injury occurred and there was no evidence in the early films of any pre-existing conditions.”

(Pages 82 - 83 of the bundle of documents attached to Mr Simpson’s affidavit).

28. The plaintiff challenges factual errors in this report, such as the wrong date for the surgery, which had in fact occurred after the plaintiff saw Dr Bodel and two days before the report. In those circumstances, the plaintiff’s chronology asserts, his belief that the operation failed made this report unreliable.

29. Dr Bodel’s report clearly gives the wrong date and describes the plaintiff as recovering from the surgery (p. 78). His description of the “poor outcome” from the surgery is a problem, but not one that invalidates the conclusions in his whole report.

30. In fact, Dr Bodel’s forecast was correct. The plaintiff did have a poor recovery from the surgery and this was apparent more or less from the first. On 29 March 2018, the plaintiff told his solicitors he was to have a facet joint injection and could require a second spinal surgery. That second surgery took place on 7 August 2018. He remained unable to work, in severe pain and taking a cocktail of opioid drugs.

31. On 10 August 2018 the plaintiff’s solicitor contacted QBE insurance, which advised that the claim had been closed and transferred to the GIO. The plaintiff’s solicitor continued to request clinical notes from medical practitioners, but took no steps to bring a common law claim.

The impact of the pandemic

32. On 16 March 2020 the Victorian Government announced COVID-19 lockdown measures. This was the beginning of a lengthy period of closure for law firms, insurance companies and doctors. It is certainly a contributing factor to delay, but not to the extent argued by Mr Carney.

33. The plaintiff’s solicitor continued to write to medical providers for medical notes. There was difficulty organising medical appointments because of the lockdown. An appointment with Dr Doig for 26 March 2021 resulted in a report from him of 23% WPI .

34. On 31 March 2021 the plaintiff’s solicitor served Dr Doig’s report under cover of a letter of claim. The defendant responded that it did not concede the plaintiff met the 15% WPI threshold.

35. On 16 June 2021, the plaintiff’s solicitor made an Application for Assessment by a Medical Assessor, which could not be done until 10 November 2021 because of the pandemic.

36. An examination was carried out on 10 November 2021. The following history was given of the plaintiff’s work injury:

“History relating to the injury

Brief History of the incident/onset of symptoms and of subsequent related events, inducing treatment

- 10 December 2001, commenced causal employment through Ready Workforce Pty Ltd as a Storeman with IGA warehouses in Blacktown.

- The injury occurred on 13 December 2002 when the Claimant was repeatedly lifting heavy boxes. He developed lumbar back pain which radiated to the left leg.

-Initially, the pain was mainly a “stiffness” in his back he continued working, but the symptoms increased and on 18 December 2001 he consulted a general practitioner and was certified as “unfit for work”.

- Mr Hibbs elected to continue study for a Degree in Bachelor of Information Technology, which was completed in 2004.

- Hist back pain persisted and increased in severity in 2005. Physical activity and in particular, lifting his baby daughter greatly aggravated his symptoms.

- Gradually, his symptoms increased in spite of conservative treatment and physiotherapy.

- A comply Agreement dated 2 May 2007, “…15% Permanent Impairment of the back”

- Certificate of Determination – Consent Order dated 23 August 2013, “… further 4% loss of efficient use of left leg at or above the knee…” and for pain and suffering.

- However, since then his condition gradually deteriorated with pain in the lumbar back and left leg.

- Medical imaging revealed damages to the :5/S1 intervertebral disc. On 26 March 2015, as a public patient, L5/S1 intersegmental posterior fusion was performed. This was a “complete failure” and he was diagnosed as having a “failed back surgery syndrome”.

- in spite of intensive conservative therapy, including epidural steroid injection and a TENS machine, there was no significant ongoing improvement.

- in 2018, removal of implanted fixation devices without subsequent improvement.”

37. A finding of 24% Whole Person Impairment was made on 1 December 2021 (p. 641). This was based on required surgery and the ongoing radiculopathy as well as the significant ongoing impairment of daily activities. This is the most recent medical report in the bundle of medical material attached to Mr Simpson’s affidavit. I note the reference to a warehouse in “Blacktown” as the site of the accident.

Proceedings are commenced

38. A pre-Filing Defence was served on 15 February 2022. The defendant declined to participate in a mediation on the basis that liability was disputed.

39. The statement of claim in these proceedings was filed on 23 March 2022. The particulars of negligence pleaded in the Statement of Claim were of the most general kind:

1. Failure to provide a safe system of work.

2. Failure to provide proper supervision in that the Plaintiff was asked to lift heavy boxes of drink without a break.

3. Failure to provide proper training on lifting technique.

4. Failure to provide a mechanical lifter to assist in the lifting of heavy boxes of drink.

5. Failure to provide sufficient workers to perform the lifting tasks required.

6. Failing to properly assess the workplace procedures and risks needed to perform this work safely.

7. Failure to inspect the workplace in order to ensure it was safe or the risk of accident was minimalized.

8. Failing to assess the risk and take precautions to avoid the risk of harm as required by the Work, Health and Safety Act [2001] NSW.

40. These are unhelpfully broad particulars; I note similarly widely drafted particulars were the subject of criticism in Gower.

41. A defence was filed on 25 March 2022 raising, inter alia, limitation issues. This motion was filed on 20 June 2022.

The defendant’s position

42. In his affidavit of 19 September 2022, Mr Chris Riorden, the General Counsel for the RGF Staffing APEJ Group since July 2019, states:

“5. For some years prior to and at the time of the subject injury the defendant and other related companies conducted a variety of business including, of relevance to this claim, many separate labour hire business.

6. Due to a series of corporate restructures, sales and purchases, the defendant and the other related companies become part of the Chandler Macleod group of companies and, more recently, the RGF Staffing APEJ group of companies.

7. The defendant company ceased trading in about 2010.

8. Based on my enquired, I believe that:

(a) No records are held in relation to the plaintiff’s employment.

(b) No records are held in relation to the subject injury.

(c) No contract or any other records are held in relation to any contract or any arrangements between the defendant and IGA pursuant to which the plaintiff was working at the IGA premises at the relevant time.

(d) All such records that would have been held by the defendant would likely have been destroyed many years ago.

(e) No employee of the defendant at the time of the subject injury can be now be identified.

(f) No records or any other information are held which identifies the ‘IGA’ entity that was a party to the labour hire contract with the defendant.”

43. The defendant submits:

1. The plaintiff has failed to supply any sufficient or acceptable explanation for the whole of the period of delay. What few relevant documents have been produced relate only to the plaintiff’s medical condition. The rest of the documentation produced is either irrelevant or unreadable.

2. The plaintiff does not have a reasonably arguable claim of negligence. There is no particularisation of any conduct, negligent or otherwise, save that IGA warehouse (which appears to have been in Blacktown) had heavy boxes which the storemen were required to lift.

3. The conduct of a trial more than two decades after the injury was suffered would lead to significant actual prejudice. This was not due to the mere effluxion of time but the whole of the circumstances of the plaintiff’s very brief employment for a matter of days in an unknown IGA store to which he had been sent. That prejudice extended to evidence in support of any cross-claim against IGA in relation to its work systems, which would be impossible to obtain now, not least because not even the plaintiff seems to know which IGA store it was.

The relevant principles of law

44. Section 151D of Workers Compensation Act 1987 (NSW) provides:

“151D Time limit for commencement of court proceedings against employer for damages

(2) 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.

(3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies.

(4) This section does not apply to the commencement of court proceedings in respect of a claim within the meaning of Part 5 of the Motor Accidents Act 1988 , Chapter 5 of the Motor Accidents Compensation Act 1999 or Part 4 of the Motor Accident Injuries Act 2017 .”

45. The period of delay in question had not been estimated by Mr Carney, but he did not dispute Mr Stockley’s estimate of sixteen and a half years. There is a 24-week period during which time may be considered to have been stopped, namely from 16 June 2021 to 1 December 2021.

46. In Gower v State of New South Wales [2018] NSWCA 132 (“Gower”), Basten JA set out, at [4], the three propositions necessary for the plaintiff to establish:

“To obtain leave to commence proceedings out of time, the appellant needed to establish three propositions, namely that:

(a) there was a sufficient and acceptable explanation for each period of delay;

(b) he had a reasonably arguable claim of negligence against the State, and

(c) the conduct of a trial more than 12 years after the injury was suffered would not cause the State significant prejudice, so as to render the trial unfair.”

Delay and the 15% threshold

47. I gratefully borrow the description of the statutory scheme for compensation and damages set out by Basten JA in Gower at [6] - [23] and by White JA at [29] - [50].

48. Considerable allowance has to be made for the first decade of delay as the plaintiff was unlikely to have reached the threshold during that time. Part of the problem was that for some years after this first decade, the plaintiff was waiting in the public hospital system queue for some years for his fusion to be performed. I am conscious of the observations of White J in Gower at [186] - [187] concerning the difficulties where the degree of permanent impairment is not reached until long after the limitation period has expired. The plaintiff could not serve a Pre-Filing statement until he had evidence that the degree of permanent impairment was at least 15%.

49. However, the WPI of 24% found by the medical assessor was based on factors which would have been present since before the plaintiff’s fusion in 2015, namely the need for surgery and significant lifestyle changes. The delay by the plaintiff and his solicitors in the period from the lump sum being obtained in 2013 onwards requires explanation and none is forthcoming.

50. From the period of time from the fusion in 2015 onwards, the plaintiff’s solicitors should have been alert to the likelihood of a common law claim. I note that the plaintiff in these proceedings, like the plaintiff in Gower, was represented by the same firm and for much of this period by the same solicitor (Gower at [7]).

51. In Gower at [24] - [25], Basten JA noted a similar history of inaction:

“In June 2005 Dr Parmegiani, consultant psychiatrist, saw the appellant and concluded that, following the incident of 12 September 2003, he had been “rendered totally unfit for work”. [10] That report also concluded that the injuries were “not yet at maximum medical improvement” and that “[i]f he were to undergo specialist treatment in relation to his drinking, stabilisation will occur within three to six months.” He did not think the impairment was permanent. [11] There was perhaps some irony in the fact that Dr Parmegiani, being the consultant for whom the appellant later sought funding from the respondent for a further assessment, thought he would improve, a view confirmed by Dr Bhandari, also a consultant psychiatrist, in May 2010. In fact his condition appears to have deteriorated over time. A further report was in fact obtained from Dr Parmegiani in October 2013, of which the primary judge said that it “could just as easily have been written in 2007.” In any event, the failure to make a claim within the period was unexplained.

It is, of course, possible that even had a claim been made within the three year period, proceedings would not have been commenced until after that period. However, that possible source of unavoidable delay can carry little weight. First, had a claim been made at an early point, the State would have been on notice from that moment that it faced the prospect of work injury damages proceedings. Secondly, in the case of a medical dispute, it was a matter for the approved medical specialist to determine whether or not the claimant’s condition was fully ascertainable and, if so, the level of permanent impairment. When that would have occurred cannot be said.”

52. There is, effectively, no explanation as to why the appropriate reports for the plaintiff’s WPI were not obtained earlier. He was unable to work from 2015 onwards and taking a wide range of medication, and he had been told that a fusion was necessary. He does not appear to have been even informed of his common law rights until a conference with his solicitors on 8 August 2017. The plaintiff was advised of that date that the “goal is to obtain 15% minimum WPI to proceed to negligence claim” (p. 116 of the bundle attached to Mr Simpson’s affidavit) and the solicitor conducting the interview acknowledged that there was “a possibility that he [Mr Hibbs] may never work again.”

53. One matter, however, is all too well explained, and that is how the plaintiff was fobbed off when he expressed concerns about where his claim was going. The plaintiff was advised that “matter must be followed[sic] procedure and time frames within legislation and that we will ensure everything is managed appropriately”. In addition, he was told that “these claims and client will have the best chances of success if claims prepared properly” (p. 116). The plaintiff’s reliance upon his solicitor was total. He is not to be blamed for the delay.

54. Was the plaintiff obliged to foreshadow his claim even before obtaining a 15% WPI finding? In Gower there was disagreement on the bench concerning whether, despite not having a medical report giving a 15% assessment, the plaintiff should nevertheless have notified a work injury damages claim. Simpson JA stated (at [245]) that she did not agree with White JA’s finding to this effect. Basten JA does not refer to this specifically, but joined with White JA in dismissing the appeal.

55. The conflict between these views continues. In Young v Reece Australia Pty Limited [2018] NSWDC 465, Neilson DCJ described White JA’s observations as “dictum” and went on to prefer the view taken by Simpson JA:

“Again, the significance of that dictum is that it is possible for a potential plaintiff to give an informal notice of a claim for work injury damages or perhaps to give a notice that the plaintiff intends to bring a claim for work injury damages provided that he crosses the statutory threshold to enable him to do so. On the contrary, however, was the view of Simpson AJA. At [245] her Honour said this:

"Contrary to the views expressed by White JA…I do not accept that the appellant could, or should, have given notice of his claim for s 151H damages prior to his obtaining viable evidence of 15% impairment. In this respect s 318 of the [1998] Act is of particular importance. The effect of that section is that, in practical terms, the appellant could not serve his Pre Filing Statement without that evidence, because, if he did, he would not be able to rely on it at a trial.”

56. A similar view was expressed by Hatzistergos DCJ in Chaffey v MPM Maintenance Services Pty Ltd & Anor [2019] NSWDC 260 (at [105]; see also Paikan v Western Sydney Local Health District [2020] NSWDC 252).

57. Although Mr Stockley submitted that the views of White JA are being preferred and applied, I was unable to locate any further discussion of these conflicting views.

58. However, even if I prefer the view taken by Simpson JA and take into account that the plaintiff did all he could to have his claim progressed, the fact remains that the plaintiff would have been in a position to obtain some form of assessment at 15% before, and certainly after, the fusion surgery in 2015, but did not obtain one until 2021, six years later.

The weakness of the claim

59. The evidence as set out in the pre-filing statements and the statement of claim, as well as in the affidavit of the plaintiff, give no hint whatsoever as to how the plaintiff’s injury occurred beyond stating that he picked up a heavy box. There is no evidence, contemporaneous or otherwise, of any kind.

60. I note the observations of White JA in Gower at [132] - [138] and the basis upon which the case appeared “weak” (at [138]). In Gower, there had been an investigation and some witnesses were still available. In the present case, there is literally no evidence at all.

61. The second basis in Gower, the asserted weakness of causation and the medical evidence relied upon to link the injury to the incident, is also a factor, as the very early reports extracted above set out.

62. As to the statement of claim, the same problem occurs in these proceedings as occurred in Gower. White J stated at [140]:

“The statement of claim is so generally pleaded that it could encompass any basis upon which negligence might be alleged. I understood from Mr Gower’s submissions that that might have been a deliberate tactic to seek to avoid the constraints of s 318 (Strasburger Enterprises Pty Ltd t/a Quix Food Stores v Serna at [37] per Basten JA). However, s 315 requires that the pre-filing statement set out such particulars of the claim and the evidence that the claimant will rely on to establish or in support of the claim as the Workers Compensation Commission Rules 2011 (NSW) require. Rule 17.3 of the Workers Compensation Commission Rules relevantly provides:

“17.3 Pre-filing statement

(1) For the purposes of section 315 of the 1998 Act, a pre-filing statement is to consist of a copy of the statement of claim intended to be filed in the court of relevant jurisdiction and is to include as attachments the information and other documents required by the Workers Compensation Acts and these rules.”

63. It would be incorrect to dismiss the claim on the asserted weakness of the claim (as White J explained at [144] - [149], but it is one of the relevant factors.

64. The real difficulty for the plaintiff is, however, the evidence of actual prejudice.

Prejudice to the defendant

65. The party seeking to be freed from the constraint imposed by the limitation requirement must show that the relevant delay is not likely to make the proceedings unfair or to cause real prejudice to the proposed defendant: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541. Where there is “significant” prejudice, Sheller JA used the words “should be refused” in Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128, to describe what would be the result:

"In my opinion, the effect of the decision of the High Court in Brisbane South Regional Health Authority is 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.”

66. When determining whether there will be "significant" prejudice, one relevant issue for consideration is whether rights against third parties will be lost. Given that the defendant is a labour hire firm and the circumstances of injury are more likely than not to be the result of IGA systems of work, this is a right which is "viable and realistic, and not merely fanciful or theoretical": Creevey v Barrois [2005] NSWCA 264 at [56] per Basten JA. While the rights in question still run (Gallagher Bassett Services NSW Pty Limited v Murdock [2013] NSWCA 386 at [73] per Barrett JA), obtaining the necessary evidence would be a daunting burden.

67. There is also significant prejudice in relation to the claim brought against the defendant. There must be documents giving the name and address for the IGA warehouse, the name of the supervisor to whom the plaintiff complained, contemporaneous documentation in relation to each of the applications for payment made by the plaintiff and information about whether the plaintiff was assessed by the defendant’s insurer. Otherwise, the payments which were made to the plaintiff by way of settlements would not have been made.

68. Mr Carney did not accept the correctness of Barrett JA’s statements as to the onus lying on his client (Gallagher Bassett Services NSW Pty Limited v Murdock at [26]) in this regard, and submitted that the onus to produce such documents or other evidence (or lack thereof) lay on the defendant. He submitted that the defendant could, and should, obtain such material from the workers compensation insurer. He made no attempt to go through the material that his client produced to show me any such documents from the files relating to the claims for lump sum payment. Even allowing for the illegibility and out-of-order presentation of a number of the documents, I was not able to find any such material.

69. The defendant ceased its operations in about 2010 and any documentation prior to that date has not been able to be located by the defendant. It was a labour hire firm and the plaintiff was only employed by them for about eight days in December 2001. Computerised employment and wage records were available in 2001 but they did not have the level of sophistication that they do today. No witnesses are available and they cannot be traced from wage records. Any periods of time relevant for the keeping of wage or other employment records have long since passed. This is strong evidence of actual prejudice.

Presumptive prejudice

70. The defendant also points to the substantial prejudice caused by the length of the delay. This is certainly one of the longest extensions to be sought. It is important to note, however, that presumptive prejudice is not a numbers game, and that, if the plaintiff is able to satisfy other requirements, the fact that a long period of time has passed since the events in question does not of itself warrant the refusal of the exercise of discretion. Nevertheless, the presumptive prejudice arising in this case is significant.

The exercise of the discretion

71. The relevant principles are explained in Itek Graphix Limited v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207 ("Itek Graphix") (at [87].

72. Section 151D(2) does not spell out specific criteria to be taken into account by the court when exercising the discretion to extend the time to commence court proceedings more than three years after the injury was received. As Ipp AJA (Spigelman CJ and Sheller JA agreeing) explained in Itek Graphix (at [87]), s 151D confers a broad discretion to grant leave to sue after expiry of the limitation period, in which context "the general question that has to be asked is what is fair and just ... [or] what does the justice of the case require?”.

73. The exercise of the discretion has been more recently explained in Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447. The “broad” (at [50]) statutory discretion should be exercised judiciously and in accordance with those principles.

74. However, the plaintiff’s weak case (Howley v Principal Healthcare Finance Pty Ltd at [52]), the extensive evidence of actual prejudice, the inadequate explanation for delay for at least the period from shortly before the plaintiff’s fusion in 2015 and the presumptive prejudice from so long a period of delay all weigh heavily against a plaintiff whose trust in his solicitors was, for the reasons referred to by Simpson JA in Gower at [255] - [257], misplaced.

75. The actual period of time is not of itself evidence, as was pointed out in ABALink Early Intervention Services Pty Ltd v Danford [2019] NSWCA 97 at [14] (ten year delay). It is the nature and extent of the prejudice that is such a problem. I was unable to find any other application where the site of the accident and the identities of those present were all unknown. These details must have been recorded somewhere for the plaintiff to be paid compensation and it is unfortunate that no attempt was made to put this information, however scanty it may be, before the court.

76. The plaintiff has failed to demonstrate any of the three requirements identified by Basten JA in Gower at [4] and the application for extension of time should be refused. The proceedings should be struck out and dismissed with costs.

Order:

1. Notice of motion dismissed; application to extend time under s 151D of the Workers Compensation Act 1987 (NSW) refused.

2. Proceedings struck out and dismissed.

3. Plaintiff to pay defendant’s costs, with liberty to apply.

4. Exhibits retained until further order.

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Decision last updated: 30 September 2022