Jones v Spackman
[2014] NSWDC 139
•22 July 2014
District Court
New South Wales
Case Title: Jones v Spackman Medium Neutral Citation: [2014] NSWDC 139 Hearing Date(s): 15/7/2014, 17-18/7/2014 Decision Date: 22 July 2014 Before: Neilson DCJ Decision: Application allowed
Catchwords: WORK INJURY DAMAGES CLAIM - Application to extend limitation provision - Workers Compensation Act 1987 s 151D(2) Legislation Cited: Limitation Act 1969
Workers Compensation Act 1987
Workplace Injury Management and Workers Compensation Act 1998Cases Cited: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Campbell v United Pacific Transport Pty Limited (1966) QdR 465 at 474
Feltham v Workers Compensation Nominal Insurer [2013] NSWDC 189
New South Wales v Judd [2003] NSWCA 355
Paper Coaters Pty Limited v Jessop [2009] NSWCA 1
Pearce v Integra Coal Operations Pty Limited [2014] NSWSC 561
Sea Coatings (Australia) Pty Limited v Pascoe [2008] NSWCA 54
Uniting Church in Australia Property Trust (NSW) t/as Woodfield Retirement Village v Lea [2002] NSWCA 55Category: Interlocutory applications Parties: Danielle Jones (Applicant)
Graeme Spackman (Respondent)Representation - Counsel: Solicitors
Lough & Wells (Applicant)
TurksLegal (Respondent)- Solicitors: Counsel
Mr G Barter (Applicant)
Mr M Davies (Respondent)File Number(s): 2013/234604 Publication Restriction: No
JUDGMENT
HIS HONOUR: This is an application under s 151D(2) of the Workers Compensation Act1987.
The defendant, Mr Graeme Spackman, is a racehorse trainer. The first two paragraphs of the plaintiff's statement of claim are admitted by the defendant. Those two paragraphs are:
"(1) The Defendant, at all material times, carried on a business in New South Wales as a racehorse trainer at premises known as Boomerang Stud (Boomerang) and is liable to be sued in his own name.
(2) The Plaintiff was employed by the Defendant as a stable hand/rider."
The geographical evidence is somewhat unclear but it seems that the Boomerang Stud, also known as the Berrima Stud is set on a property known as Eleanora. The stud may be wholly on that property or it may also be on part(s) of another property. According to Mr Spackman's statement, the property occupied by the stud is approximately 100 acres and has three stables, yards for 40 horses, a swimming pool, a round yard, a sand roll and a horse walker.
Mr Spackman first commenced working at the Boomerang Stud in 1996 as a pre-trainer and track work rider. Since May 2003 he has held the trainer's licence for the Boomerang Stud and it is accepted that he was, at the relevant time, the employer of the plaintiff and other persons engaged in the work of the Boomerang Stud. That stud breeds thoroughbred horses and prepares yearlings bred at the stud for sale.
As manager of the stud, Mr Spackman supervised the staff which comprised 15 persons. They included track work riders, stable hands and horse breakers. The horse breakers also worked as stable hands. The plaintiff, Danielle Jones, and her sister, Leanne Pryor, worked for the stud preparing yearlings for sale and also "doubled up" as track work riders, stable hands and performed general duties.
Leanne Pryor is the younger sister of the plaintiff. She commenced working at the stud in August 2002. The plaintiff commenced working there, according to Mr Spackman, on 27 May 2003. The evidence of Leanne Pryor suggests that she may have been senior to the plaintiff in the hierarchy of staff at the stud. In her statement, Leanne Pryor said this:
"In or around July/August 2003, Kylie Gothan left, she was previously the broodmare manager.
I was then offered to take over her role with Peter Walsh. I accepted the position and, in November 2003, Peter Walsh left to become a real estate agent. I took over the role of managing the foals, broodmares and yearlings.
I was still employed by Boomerang Stud. The work with the yearlings and foals was seasonal.
The yearling work commenced in November of each year, I recall on 1 November 2003 five yearlings entered the stable block. The following three weeks later, a further six yearlings arrived in the stable.
From November each year until the sales are completed I work full time with the yearlings.
I am required to educate the yearlings which involves to lead, walk, lunge, wash and brush them in preparation for the sales.
I mainly do this work by myself, however each afternoon I round up five or so other staff to hand walk the yearlings.
From time to time Danielle Jones assisted with the yearling preparation on [an] irregular basis, she became more involved in the week leading up to the Magic Millions at the Gold Coast in early 2004."
That evidence suggests clearly that Leanne Pryor was the manager of the yearlings and that, from time to time, her sister would be called in to assist her in her work. The only significance of the place of Ms Pryor in the hierarchy of the stud is as to her ability to make admissions on behalf of the employer, Mr Spackman. When one reads Mr Spackman's statement of 28 October 2004, one might think that the plaintiff and her sister, Ms Pryor, were equally involved in the preparation of yearlings for sale. The statement of Mr Spackman does not suggest that Ms Pryor was superior in the hierarchy at the stud to the plaintiff.
The plaintiff herself is a keen horsewoman. In her statement of 28 October 2004, made to an investigator retained by the defendant, the plaintiff advised that she had been involved with horses since she was five years old and that she had a good understanding of horses in general. In January 2004 the defendant, Mr Spackman, Ms Pryor and the plaintiff went to the Magic Millions on the Gold Coast. The ladies returned to the Boomerang Stud and recommenced work there on Wednesday 14 January 2004. Mr Spackman stayed one day longer on the Gold Coast and did not recommence his work at the stud until Thursday 15 January 2004.
One of the yearlings at the stud has been identified as "Commands out of Accaude". This yearling is sometimes referred to as "Commands Colt". I assume that Commands was its sire and Accaude was its dam. In any event, the yearling was registered as "Your Wish" and, if it be necessary to refer to the horse in particular, I shall refer to it as "Your Wish". It appears that the yearling was foaled on 28 August 2002. At the time of the plaintiff's accident, 14 January 2004, it was nearly 17 months old. Your Wish was owned by the stud. According to a report of the private investigatior, Mr Lipovac, Your Wish had not been broken in at the relevant time and the only education with which he was provided was learning to walk and to run. However, it would appear that the horse had, antecedent to 14 January 2004, been shod.
According to Ms Pryor, she and at least the plaintiff and perhaps even the defendant had discussed in Queensland their desire to make their horses "immaculate" for the purposes of upcoming sales. Amongst other things, they decided to clip the horses' hair. According to Ms Pryor, she had discussed at least with the plaintiff their desire to clip all the yearlings and, according to Ms Pryor, the plaintiff was particularly good at that task. On their first day back after the Magic Millions, 14 January 2004, the plaintiff completed her horse riding for the day in the morning of that day. Ms Jones, the plaintiff, then decided to commence clipping the yearlings. The statement of Ms Pryor continues thus:
"We arranged for Phil Robinson to sedate the yearlings, this was introduced on advice from other strappers when away in Queensland as it makes it easier to attend to yearlings. It stops them from moving around.
Phil advised that he only had one bottle and that he would have to spread the dosage over the six yearlings, this meant each of the six yearlings were only given 2 millilitres instead of 5 millilitres.
Your Wish was given a smaller dosage [? the smaller dosage]. We completed the first yearling without incident and then commenced to clip the next horse which was Your Wish, I noticed its nearside hind shoe was half off and asked Phil to pull the shoe off.
We were in the breezeway and commenced to clip Your Wish with the electric clippers, we had clipped the nearside front without accident, Danielle then commenced to clip Your Wish's nearside hind, I was holding him with a lead, I was directly in front of him.
Danielle Jones finished clipping his leg and then without warning I heard a hit and then observed between the yearling's legs Danielle Jones's legs on the ground and heard the clippers dropped, she dropped to the ground.
Your Wish was not playing up beforehand, he was placid and had struck Danielle without warning. I then moved Your Wish away from her, I then moved the yearling away quickly, I was surprised how quickly he moved for a horse that was supposed to be under sedation. He was sedated about two minutes before we commenced clipping.
I turned the clippers off and ran straight to her and noticed Danielle had suffered facial injuries consistent with being kicked. She was unconscious and laying in a pool of blood.
I clipped Your Wish about a month later without incident. On this occasion we did not sedate him."
The statement of the plaintiff is, to a large extent, consistent with that of Ms Pryor. She indicates that around lunch time, after she had completed her riding duties, she went over to the stable block numbered 3 to assist her sister with the yearling preparation. She said that she commenced to clip the yearlings in that stable area. She indicates in her statement that she was experienced in performing that task as she cared for her own horses over a lengthy period of time. At that time the plaintiff was 34 years old, so she had been actively involved with horses for 29 years, since the age of five. Her statement then continues thus:
"Prior to commencing clipping the yearlings they are usually sedated. I recall prior to clipping Your Wish, Phil Robinson attended the stable area and sedated Your Wish, prior to this I recall a comment from Phil saying that he did not know what type of sedative was being used on the horses. He said that he kept enough [for another colt known as or from Zedative].
I had clipped one yearling without incident. I then commenced to clip Your Wish's nearside front[,] this took about five minutes, I then commenced on his second [nearside hind] leg. The first leg was completed without incident. Your Wish did not appear to be agitated; he appeared to be placid.
After completing the nearside hind leg I stood up and without warning I was kicked[.] I [have] no memory [of] what happened. I was knocked unconscious."
Relatively contemporaneous workers compensation report forms prepared on behalf of the defendant indicated that this accident occurred about 1.30pm on Wednesday 14 January 2004. The only difference in timing is the employer's report of injury form made by the plaintiff on 23 January 2004, which indicates the time of the accident as being around 12 noon.
There is no dispute that the plaintiff sustained a very serious injury. An ambulance was called and she was taken to the emergency department of the Bowral District Hospital. The emergency department medical officer made very concise and legible notes. He or she confirms a history of the plaintiff's having been kicked in the face by a horse, suffering from multiple facial bone fractures. The doctor goes on to note that the patient, the plaintiff, was unable to recall events but was able to tell him or her that she was standing, that a horse reared and hit her in the face with its hoof. That caused her to fall to the ground with a brief loss of consciousness of less than a minute. By the time the plaintiff was seen at the Bowral emergency department, the plaintiff was not confused.
A plain X-ray was carried out of the plaintiff's cervical spine and there was a CT scan of her head and facial bones. The report of the CT scan shows a number of complex fractures of a number of facial bones. The short comment made by the radiologist, Dr Warwick Lee, is this:
"There is a complex fracture of the middle third of the face combined with a left malar fracture and a depressed fracture of the left zygomatic arch. A fracture at the base of the right zygomatic is also present."
When at the Bowral Hospital there were discussions with surgeons at the Liverpool Hospital concerning the need for plastic surgery and surgical attention by a maxillofacial practitioner. There was also an expressed need for the plaintiff to be seen by an ophthalmologist. The plaintiff was kept at the Bowral Hospital at least until 18 January 2004 when she was transferred to the Liverpool Hospital to consult with the specialist doctors at that institution.
In addition to the injuries to her face, the plaintiff sustained dental injuries. On 2 February 2004 the plaintiff saw an oral and maxillofacial surgeon, Dr Mark Irving, whose rooms are at North Parramatta. Annexed to that document is a "treatment plan" but that suggests that it was printed on 17 August 2004. However, from the evidence before me that that may be only a later printout of the damage identified by a dentist which needed to be repaired. The total treatment plan appears to have involved dental work for $24,740.
There is also a report from an endodontist, Mr Stephen Blackler, bearing date 6 December 2004 which discusses proposed further treatment for teeth numbered 16 and 47. Further treatment proposed for tooth 16 was valued at $1,720 and the endodontist merely suggested monitoring of the status of tooth 47 which was not yet the site of any symptoms. Amongst others, the defendant, through his insurer, Racing NSW, has arranged, from time to time, review of the plaintiff by dentists.
In considering the extent of the plaintiff's injuries, it is important to bear in mind that, eventually, the plaintiff and the defendant agreed that she had 30% whole person impairment, representing 12% WPI for her cervical spine and ear, nose and throat and related structures, and 20% WPI for severe facial disfigurement. That agreement, reached on 17 April 2009, entitled the plaintiff to a lump sum of $52,500 under s 66 of the Workers Compensation Act1987 and it was agreed between the plaintiff and the defendant that she was entitled to lump sum compensation for pain and suffering, anxiety and distress resulting from 30% WPI in the sum of $22,500.
The parties have put before me very little medical evidence. However, it is clear that it took a long time for the plaintiff to reach the optimal improvement that she could from the injuries she sustained on 14 January 2004. For example, I know that on 1 September 2005 the plaintiff commenced seeing Dr Crawford, a pain specialist, who she continued to see from that time on a regular basis at least until swearing her affidavit on 29 May 2014.
It is clear that a claim for workers compensation was made very promptly after 14 January 2004. Indeed, the evidence before me is that she continued to be in receipt of workers compensation payments until March 2014. It would appear, therefore, that the defendant has paid workers compensation to the plaintiff for over ten years. According to the plaintiff's affidavit, her weekly payments of compensation were only stopped after there was a "work capacity assessment". I understand this to be the modern approach to workers compensation: to let the claims manager decide if a person is entitled to compensation or not.
However, early in the piece there was some irregularity in the payment of weekly compensation. In late 2004 the plaintiff was attracted to an advertisement which she had heard from an organisation called "Australian Injury Helpline". She phoned that service which referred her on to Messrs Leitch Hasson & Dent who can be briefly described as LHD. There she met Mr Tony Dyer. She had an interview with Mr Dyer on 3 February 2005. Following upon that interview, Mr Dyer wrote her a letter bearing date 7 February 2005 that raised a number of issues concerning her workers compensation claim. The first was that the plaintiff had two jobs. In addition to her job at the Boomerang Stud, the plaintiff was also the owner of the business known as the Fitzroy Falls Café. As I understand it, the plaintiff either rented that café or obtained it on licence from the NPWS and conducted the café a number of days each week. It appears that Mr Dyer thought that the plaintiff's earnings from self employment had not been taken into account in assessing her entitlement to weekly compensation and that needed to be attended to. The next item to which attention was given was the need by the plaintiff for remedial massage. The third was the plaintiff's entitlement to lump sum compensation under the Workers Compensation Act. Mr Dyer advised the plaintiff that, in addition to obtaining an assessment from the maxillofacial surgeon, the plaintiff should also have her neck "checked out". The letter ended with Mr Dyer advising the plaintiff that he would write to the insurer of the defendant to obtain copies of medical reports that it had which might assist LHD in assessing the plaintiff's lump sum compensation entitlements.
The insurer of the defendant sent such reports as it had to LHD and, on 11 March 2005, Mr Dyer wrote to the plaintiff enclosing copies of them for her records and asking the plaintiff to advise LHD when her "condition has settled down" so that they could make a claim for WPI. Later in that year LHD wrote to the defendant's insurer about two new issues arising from the plaintiff's claim for workers compensation. It was alleged by the plaintiff that she was only being partially reimbursed for her travelling expenses and that part of her claim for dental treatment had been declined. There was a reply from the defendant's insurer on 9 January 2006 explaining the disagreement about the reimbursement of travelling expenses and pointing out that there had been no formal declining of liability for the plaintiff's dental treatment, rather that the treating doctor had refused to undertake further treatment because of a delay by the insurer in making payments to the treating dentist.
On 12 May 2006 Mr Dyer wrote to the plaintiff, asking her if she'd yet finished treatment and asking the plaintiff to contact Mr Dyer's secretary to let the firm know if her treatment had been completed. The next letter is one that has not been put before me. It is a letter from the plaintiff to LHD dated 26 November 2006. It prompted a response from Mr Dyer on 4 December 2006. The substance of the letter is this:
"Dealing with the last issue first, in order to qualify for Workplace Injury Damages (Common Law Damages) the Workers Compensation Act was changed to require that as a preliminary issue before the matter of negligence is even approached, you must have a 15% Whole Person Impairment under the WorkCover guidelines and have been paid that amount (at least) together with any amounts for pain and suffering. Unless that level of impairment is achieved then recovery of damages is not possible irrespective of whether or not there exists negligence on the part of your employer. We simply don't know whether [you have] achieved that level of impairment.
Additionally at first glance we have some difficulty ascertaining the negligence, however if you can point us towards the methodology whereby the incident could have been prevented by some measures or measures taken on behalf of your employer which a reasonable person would in the circumstances have taken, then we are prepared to revisit that issue. Otherwise we don't really see that there would be good prospects of success in this regard, however we recommend that should you wish to do so that a second opinion should be obtained and any action taken prior to the expiration of the limitation period in January.
One of the difficulties as we see it is that you may well not [have] achieved maximum medical improvement at this stage as there is still dental work to be undertaken and you may not have stabilised."
The letter finishes with some remarks about economic information which is currently irrelevant. In her oral evidence, the plaintiff conceded in crossexamination that she knew that the limitation period referred to as ending in January ended in January 2007. It is clear that that which agitated Mr Dyer in December 2006 was not only issues relating to liability at common law but the issue as to whether the plaintiff would cross the statutory threshold by establishing 15% WPI or greater.
It would appear that in 2007 conduct of the plaintiff's case at LHD was taken over by Mr David King. There is before me a letter of 26 June 2007 in which reference is made to earlier but undated correspondence and there is a notation that Mr King had recently had trouble in contacting the plaintiff by telephone. Mr King advised that he would like to arrange a medical examination of the plaintiff by an independent medical examiner, no doubt to ascertain the state of the plaintiff's health, in particular whether her condition was stable and as to what the WPI might be. Clearly, the plaintiff consented to that arrangement and, on 29 August 2007, the plaintiff was seen by Dr Kevin Bleasel, a neurosurgeon, at the request of LHD. Dr Bleasel thought the plaintiff had had "an excellent cosmetic result" as far as her facial surgery was concerned and the doctor paid tribute to the expertise of Dr Mark Irving, the surgeon who carried out the necessary procedures.
According to the history obtained by Dr Bleasel, the plaintiff had returned to some work in March 2004 but did light duties only until June of 2005. The history goes on to record that she then became involved in political work and sought pre-selection for a Parliamentary seat based on Nowra but did not gain such preselection. However, it appears that her involvement in political activities ceased in about September 2005.
Dr Bleasel believed that the plaintiff had WPI of 26%. However, according to Dr Bleasel, a large amount of her problems belonged to areas outside his own specialty. He suggested that the plaintiff should undergo psychometric testing by Mr Peter Rawling at the St Vincent's Clinic. He thought that there were migrainous types of headaches, the result of soft tissue injuries to her cervical spine and face, and they might be thought to be post traumatic migraine. The doctor expressed a poor prognosis and pointed out that there was no sign of any recent improvement of any significance. When discussing WPI, the doctor thought that the extent of her future impairment could be improved.
When LHD received that report, a copy of it was sent to the plaintiff. LHD asked the plaintiff to provide them with an authority to make a claim for lump sum compensation and to commence proceedings in the Workers Compensation Commission if necessary. There was an informal claim made by LHD on the plaintiff's behalf for 26% whole person impairment on 19 September 2007 that was received by the insurer on the 26th of that month. In the same letter LHD asked the defendant's insurer to concede 15% WPI or greater.
A more formal claim for lump sum compensation was made by LHD on 4 October 2007. Later, LHD received from the plaintiff's treating dentist, Dr Nichols, a report indicting that, as far as he was concerned, the plaintiff had a present WPI of 11% which would reduce with further treatment to 5% WPI. On 7 November 2007 LHD advised the defendant's insurer of the increased sum. On 25 March 2008, that is some four months later, the defendant's insurer made an offer to pay the plaintiff WPI of 20% and a relatively modest amount under s 67. However, there was no formal concession by the defendant's insurer that the plaintiff had a WPI of at least 15%.
The next relevant occurrence, no doubt in response to the defendant's insurer's offer of 25 March 2008, was a letter from LHD to the insurer of the defendant, that might be seen to comply with s 280A of the Workplace Injury Management and Workers Compensation Act1998. Section 280A does not mandate the notice; the notice appears to be mandated by ss 260 and 262 of that Act. Section 280A provides this:
"A claim for work injury damages in respect of any injury cannot be made unless a claim for lump sum compensation in respect of the injury is made before or at the same time as the claim for work injury damages."
Section 280B provides that lump sum compensation under ss 66 and 67 of the 1987 Act must be paid before the plaintiff can recover any damages under the modified common law provisions of the workers compensation legislation. Section 281 of the 1998 Act requires relevantly the present defendant to either accept the plaintiff's claim for work injury damages or to dispute it. Such a decision must be made within one month after the degree of permanent impairment first became fully ascertainable, as agreed by the parties or as determined by the approved medical specialist or, at the latest, within two months after the current plaintiff had provided the defendant with all relevant particulars about the claim. The letter of 24 April 2008 sought to provide all the relevant particulars.
The defendant, via his insurer, responded to that claim by letter dated 20 May 2008. In that letter the insurer did not accept liability for the plaintiff's work injury damages claim and refused to admit that he was negligent, as alleged or at all, in causing the plaintiff's injuries. It would appear that, immediately after the insurer of the defendant denied liability for the plaintiff's work injury damages claim on 20 May 2008, Messrs TurksLegal commenced to act on the defendant's behalf.
On 15 October 2008 the plaintiff made an application to resolve a dispute in the Workers Compensation Commission. The dispute was about the assessment of the plaintiff's whole person impairment. By operation of law, that stopped any limitation period running. The dispute concerning WPI was not resolved until 17 April 2009, as I have previously mentioned. The resolution of that dispute recommenced the reckoning of time for the purposes of the limitation provision, s 151D(2), albeit that the limitation period had, in fact, expired on 14 January 2007.
On 24 April 2009 Ms Fletcher of Messrs TurksLegal wrote to Mr King of LHD. This was clearly within a week of the agreement as to WPI. In the letter of 24 April 2009, Ms Fletcher advised Mr King that, although she had not yet received formal instructions, it was unlikely that she would receive instructions to admit liability at common law. She again referred to the fact that the defendant's insurer had issued a notice disputing liability. The letter then refers to the absence of an expert report which Mr King clearly wished to delay until after the compulsory mediation which the 1998 Act enjoins. Ms Fletcher then invited Mr King to serve a pre-filing statement "in due course".
Shortly before the agreement was reached about the plaintiff's WPI, Ms Fletcher had written to the private investigator previously retained by the insurer, Mr Lipovac, to carry out some further investigations. Mr Lipovac's report refers to a letter of instructions from Ms Fletcher to him bearing date 12 March 2009.
It is necessary to return at this stage shortly to Mr Lipovac's first report. It is clear that reference was made by both Leanne Pryor and the plaintiff to Mr Phil Robinson administering a sedative to Your Wish. However, Mr Robinson was not interviewed by Mr Lipovac when he first was instructed by the defendant's insurer. The reason for that is that Mr Phil Robinson had left the Boomerang Stud in February 2004. In other words, at the time that Mr Lipovac attended the stud to carry out his initial investigations, Mr Robinson was no longer an employee. The statement of Mr Spackman was dated 28 October 2004, the statement of the plaintiff is dated 28 October 2004, and the statement of Leanne Pryor bears exactly the same date. In other words, one can accept that Mr Lipovac attended the Boomerang Stud on 28 October 2004. In summing up what had happened, Mr Lipovac wrote this in the body of his report:
"Shortly before 1pm or thereabouts, Phil Robinson, one of the insured's employees, attended the stable block containing the yearlings and advised Leanne Pryor that he did not have enough dosage to sedate all six yearlings who were about to be clipped.
It is understood the dosage is usually 5 millilitres per horse. On this occasion he only used 2 litres for each yearling.
Leanne Pryor confirms Phil Robinson went about sedating the other yearlings including Your Wish...
Leanne Pryor confirms after Phil Robinson administered the sedative, albeit a much smaller dosage than usual, she held the first yearling whilst the claimant completed the clipping using electric clippers in the breezeway of stable barn C.
Thereinafter the yearling, "Your Wish", was then removed from his stable and placed in the breezeway with his head facing Leanne Pryor. She then held the horse whilst the claimant used electric clippers to clip the yearling's nearside front foot. The claimant completed the clipping of this area without incident. During the process "Your Wish" remained stable and calm.
The claimant then went about clipping the nearside rear leg and completed the same. Leanne Pryor then confirms without warning she observed the clippers fall to the ground and the claimant just drop. Her view was obstructed by the yearling's head.
She then moved "Your Wish" out of the way and noticed he moved way quickly, which was surprising for a horse supposed to be under sedation."
Each party puts a different complexion on this first factual investigation carried out by Mr Lipovac. The plaintiff claims that it clearly was an investigation designed to ascertain whether there had been any common law negligence in the circumstances giving rise to the plaintiff's injury. On the other hand, the defendant says that this was the mere investigation of the factual circumstances surrounding a workers compensation claim and there can be many reasons for making such inquiries. Inferentially, the defendant asks me to accept that, if this were a true common law investigation, then attempts would have been made by Mr Lipovac to ascertain the whereabouts of Mr Robinson and to interview him to see if his recollection of events was the same as that, for example, of Ms Pryor. There is force in the latter submission. However, there is not much force, in my view, in the prior submissions on behalf of the defendant. The claim forms, hospital records and, no doubt, medical records all point to the plaintiff's accident as having occurred when she was at work in the course of her employment and that the accident was a very serious one. Sometimes employers find it necessary, if potential workers compensation claim may have a potentially large financial impost on its reserves, to make sure that the claim is entirely genuine by investigating it. Equally, insurers sometimes request factual investigations to try to ascertain whether there are any potential risks offered by an employer to his employees which could be obviated by good claims management, not with a view to reducing common law liability but with a view to reducing the incidence of further workers compensation claims. Equally, sometimes insurers arrange for factual investigations to ascertain details of the employer's business activity, details of the risks involved, details of the number of employees employed at a certain workplace, because often such things disclose an underdeclaration of wages by an employer or show unacceptable risk of further injury which might lead an insurer to decline to further insure an employer or to demand an increased premium which the employer might not be willing to pay. Such considerations largely fall away when I know I am here dealing with the horseracing business and we have a specialist insurer, Racing NSW. Specialist insurers ought know exactly the risks involved in the activities being carried out by their insured, in this case by a horse breeder and trainer. However, the fact that no attempt was made by Mr Lipovac to seek to find Mr Robinson and interview him does suggest that the defendant's insurer was not particularly concerned about common law liability when the investigation was made in October 2004.
However, when it must have been clear that the plaintiff's WPI would exceed 15%, Ms Fletcher acted. She asked Mr Lipovac to find and interview Mr Robinson. Mr Lipovac did so. Mr Robinson was interviewed on 16 March 2009. He was then working at a stud at Werombi. Indeed, he was its assistant manager. He confirmed that he left the Boomerang Stud in February 2004. As at March 2009 Mr Robinson had 35 years' experience in the horseracing industry. That would take him back to 1974. Mr Robinson went on to state that, during his period of 35 years, he had a total of 25 years in dealing with administering sedatives to horses. The inference I draw is that, therefore, in about 1984 Mr Robinson commenced administering sedatives to horses. Although he has no formal qualifications in regard to the administration of sedatives to horses, he said that he attended many horses for administering sedatives. The inference to be drawn is that he had merely learnt how to administer sedatives to horses through the handson approach or hand-me-down approach used in many industries. All told, Mr Robinson had worked for three years at the Boomerang Stud. Amongst his duties were administering the majority of drugs administered to racehorses at that stud. He mainly administered a sedative identified by him as ACP. He described that in this fashion:
"...this is a sedative for horses prior to any operation, it is also used a lot for horses in an attempt to calm them down, and back in 2004 this was commonly used throughout the industry. It was mainly used to calm horses down."
As to the circumstances of the plaintiff's injuries, Mr Robinson said this:
"I recall the events of [14] January 2004; I commenced work at around 6am.
I was aware Boomerang Berrima Stud was preparing yearlings for upcoming sales. From memory there were six yearlings that needed to be prepared.
I recall Leanne Pryor approached me around lunch time and asked if I could give a young colt by Commands a sedative. Leanne said that the colt was playing up a bit and would I give him a sedative.
I agreed, I did not have to question Leanne Pryor or Danielle Jones's judgment as they were experienced and capable in their duties.
The purpose of administering the sedative was to take the edge off the horse.
I cannot recall how much dosage I administered. I usually give a dosage of 57 millimetres. Within a brief period of time I walked over to the yearling barn and administered unknown quantity of ACP to the Commands' colt. I cannot recall administering all six yearlings.
After administering the sedative to the Commands' colt I would not have said anything specific as both Danielle Jones and Leanne Pryor were capable with horses. However prior to walking away I carried out a visual check of the Commands' colt and observed that he was loosening his appearance and his head dropped which is consistent [with] the sedative taking [effect], I was satisfied he was calm.
I would have left the breezeway about one-two minutes after sedating the Commands' colt. I was satisfied that the horse was safe as any horse could be after providing a sedative. I first became aware of her facial injuries when Leanne Pryor rushed out from yearling barn and yelled out and was screaming[,] she was hysterical. I then rushed back to the barn and observed Danielle Jones lying on concrete floor in the breezeway, by this time the Commands' colt was back in his box."
Mr Robinson went on to say that he did not inspect Your Wish after the incident and that Mr Pryor advised him that she did not know what had happened. One will see immediately a discrepancy. As far as Mr Robinson can recollect he was only called to the yearling barn to sedate one horse, Your Wish, which he sedated probably with ACP and probably with a normal dose of between 5 and 7 millilitres. According to Leanne Pryor, he was called to sedate six yearlings, did not have sufficient to sedate all of them effectively and used a reduced dosage which, it would appear, wore off very quickly.
The statement obtained from the plaintiff might be consistent with either the version given by Leanne Pryor or the version given by Mr Phil Robinson. There is clearly a real issue to be ascertained by the tribunal of fact before considering the question of negligence of the defendant. The submission put to me by the defendant is that, because of the effluxion of time, in particular because of the effluxion of time between the plaintiff's accident and the time that Mr Robinson was interviewed, a period of five years, the defendant is disadvantaged in defending a common law action because of the natural loss of memory by the effluxion of time.
Furthermore, the defendant submits that it is even more prejudiced because an attempt was made by Ms Fletcher to speak with Mr Robinson on 11 June 2014 and, in that interview by telephone, Mr Robinson said what one would expect him to say. Inter alia, the following is recorded by Ms Fletcher in her affidavit of 14 July 2014:
"Me: 'Well, the clam is still ongoing and we will need an updated statement from you and may require you to come to Court to give evidence. Can I just ask you, how is your memory for the day of Danielle's accident?'
Phil: 'Well, you know, as we get older, our memory gets worse. My memory of that day is not as clear as what it was.'
Me: 'So would I be right in saying that you can't recall the dose of the sedative that you gave to the horse?'
Phil: 'I can't remember, it's been a decade.'"
However, it is clear that Mr Robinson had not, at that time, sought to refresh his memory from the statement had he had given on 16 March 2009, some five years earlier. What he might now say once he has refreshed his memory from his statement of 16 March 2009 I do not know.
ADJOURNED TO TUESDAY 22 JULY 2014
HIS HONOUR: When I adjourned yesterday afternoon I had finished discussing the statement obtained by Ms Fletcher on behalf of the defendant from Mr Phil Robinson, that statement being dated 16 March 2009. It would appear that that statement was not provided to the plaintiff until a copy of it was served with the pre-filing defence on 11 May 2012. I had also referred to Ms Fletcher's letter of 24 April 2009 addressed to LHD in which reference was made to a proposal by Mr King of that firm not to serve an expert report until after the compulsory mediation required by the workers compensation legislation. In that letter Ms Fletcher advised Mr King that she would need to obtain instructions in that regard.
I also pointed out yesterday that Ms Fletcher invited the plaintiff to provide a prefiling statement. That prefiling statement was not served until 18 April 2012, almost three years later. It would appear that what preoccupied those instructed by the plaintiff was the question of liability. On 9 March 2009 Mr King had sent an email to Ms Fletcher stating this:
"Don't you think liability is relative straight forward? I note that your client has denied liability, but I've never had a case where the insurer has accepted it.
In cases like this, most insurers are willing to save time, and place money in the claimant's hand, rather than an expert's."
That email was sent at 9.34am. Ms Fletcher replied at 4.43pm. In her email, Ms Fletcher referred to an attempt to speak to Mr King on the telephone but that was in vain as he was in a conference. The remainder of Ms Fletcher's email is this:
"I don't think liability is quite that straightforward. However, the real issue would seem to be whether the horse was sufficiently sedated, which would appear to be more of a factual matter rather than something that an expert's report is required for.
I am still conducting some inquiries of my own, which may change the position re liability (then again, it may not). I expect that my inquiries should be completed within four weeks. It's obviously your call as to whether you want to hold off serving a PFS [pre-filing statement] or obtaining an expert's report until that time."
The inquiries which Ms Fletcher was making were clearly those involved in interviewing Mr Robinson.
On 6 April 2009 Mr King wrote a letter to Dr Paul McGreevy at the Faculty of Veterinary Science at Sydney University. Dr McGreevy is an equine ethologist. Ethology is that branch of science that deals with animal behaviour. One could see, therefore, that Dr McGreevy is a specialist in the behaviour of horses. The letter sent by Mr King to Dr McGreevy was an attempt by Mr King to qualify Dr McGreevy to provide an opinion. The commencement of the letter refers to "our previous discussions". I assume they were telephonic communications between Mr King and the Doctor. It goes on to refer to the fact that LHD were acting for the plaintiff who sustained severe injuries when she was kicked in the face by a horse on 14 January 2004. The letter then enclosed the notice under s 281 of the 1998 Act which outlined the particulars of negligence that LHD had so far identified. The letter continues thus:
"We are instructed that our client was allocated the task of clipping the horses' hooves. She had not been specifically trained nor given any warnings of indication as to the proper or safe method with which to perform this task. Our client alleges that the horse may have been inadequately sedated and that the stable manager who sedated the horse was not a qualified vet. Furthermore, she instructs us that the stable manager was more inclined to retain as much sedative as possible to use on another horse."
The letter goes on to outline what was enclosed for the doctor's use. The first thing to note is that the plaintiff was not clipping the horses' hooves but rather clipping the horses' hair from the fetlocks of each leg. The reference to the "stable manager" is clearly a reference to Mr Phil Robinson. The material which was sent to the doctor to help him form an opinion would have been of no utility to him whatsoever. They were merely the plaintiff's claim for weekly payments of compensation and medical reports clearly relating to the injuries that she had sustained.
In, I infer, response to Ms Fletcher's letter of 24 April 2009 to which I have earlier referred, Mr King sent to Ms Fletcher an email. The email was sent at 10.53am on 24 April 2009. It is this:
"Don't worry about the expert issue, I've already commissioned one."
Unfortunately, the expert's report was not generated until late November 2012, some three and a half years later. On 16 June and 6 October Messrs TurksLegal chased up LHD about outstanding economic material referrable to the plaintiff's claim.
In the meantime, work was being done by counsel retained by LHD for the plaintiff, Mr Luke Morgan. Page 11 of the affidavit of Mr Trevor Wells, the plaintiff's current solicitor, sworn on 29 May 2014, gives details of work done by Mr Morgan. It is this:
"11 April 2008 Conference 13 April 2008 Advice 6 June 2008 Review of evidence 14 August 2008 Advice 5 January 2009 Advice 17 March 2009 Advice 1 April 2009 Advice 15 July 2009 Review of evidence 13 October 2009 Draft pre-filing statement 5 March 2010 Settled pre-filing statement 16 March 2010 Review of evidence 14 April 2010 Draft statement of claim and chronology"
No written material from Mr Morgan has made its way into the evidence before me. In particular, there is no copy of any written advice, no copy of either the draft or settled pre-filing statement nor any copy of the draft statement of claim.
By early March 2010, Ms Fletcher of TurksLegal was concerned about the progress, or lack of it, of the plaintiff's claim. On 2 March 2010 at 4.42pm she sent an email to Mr David King at LHD asking him to advise her as to whether the plaintiff intended to pursue her claim. The reply bears the same date and is marked with a time of 4.39pm which clearly times the response as prior to the request, but the inference I draw is that Mr King's reply was to an earlier email from Ms Fletcher. In his email of 2 March 2010, Mr King advised that LHD did intend to proceed but was still "awaiting an expert report on liability".
The delay being experienced clearly concerned the plaintiff herself. On 14 May 2010 the plaintiff attended on Mr Bryden of Brydens Law Office in Sydney. In an email to Mr Bryden of 20 August 2010, the plaintiff says this:
"On 14 May 2010 I met with you in your Sydney office to discuss several matters relating to a Work Injury Damages Claim that was being handled by the firm Leitch Hasson Dent. The major concern I had was that I often could not get in contact with my Solicitor, David King, and get any answers relating to issues that kept arising. I had also been given a number of timeframes that had all expired. At our meeting you reassured me that with your firm this would not happen.
Since our meeting I only received one letter from your office on 18 May 2010 asking me to sign everything over to you. I have phoned your office twice now to ask what is happening, on the first try I was told that the files had not come through yet and I was given an outline of what has to happen and an approximate timeframe. The second call which I made last week I was again told the file still had not come through and that your office had contacted them but that was what was holding everything up. I asked for you to call me but my phone call has not been returned.
Then on Tuesday this week I received a letter from your office requesting that I sign more paperwork so that the files can be released and also a bill for $9,142.93.
Nowhere in the conversation that we had did you tell me about this. You reassured me on several occasions that my case would be dealt with better by your firm and I could expect a much quicker response time than I had received with Leitch Hasson and Dent. You said that you knew one of the partners and there would be no trouble getting the case sent over. I have been given a timeframe of six months and that was four months ago. In your letter dated 18 May it says that 'it is important that we move forward quickly'. I am so disappointed, I left our meeting so positive that it would be the right thing to hand the case over to your firm and since 14 May I have been let down.
I can't believe that you said all these things in our meeting and then you sent through paperwork for me to sign everything across and then nothing until I get a letter with a huge bill.
Can you please call me, I have phoned your office and asked that you return my call twice now."
In the meantime, the defendant's solicitor was still pressing for some action. On 19 August 2010 Ms Fletcher wrote to LHD, again pressing that firm to advise whether the plaintiff was still intending to proceed with her damages claim and again requesting economic information requested on 16 June 2009, over one year earlier. LHD made no response to that letter. On 25 October 2010 Ms Fletcher again wrote to LHD pressing for an answer within 14 days and warning LHD that, unless a response was received within a fortnight, she would advise the defendant's insurer to close its work injury damages file. That provoked a response. On the following day an email was sent by LHD to Ms Fletcher advising Ms Fletcher that LHD no longer acted for the plaintiff and directing Ms Fletcher to refer all future correspondence to Messrs Brydens.
On 27 October 2010 Ms Fletcher wrote to Brydens asking that firm whether the plaintiff intended to pursue her claim for work injury damages and again requesting information that had been requested initially in 2009. There was no response to that letter in the short term, and on 25 January 2011 Ms Fletcher again wrote to Brydens pressing for a response within 14 days. Messrs Brydens responded on 31 January 2011. They advised Ms Fletcher that the plaintiff continued to instruct Brydens to pursue her work injury damages claim and requesting that the defendant's insurer and Messrs Turks continued to leave their files open and promising contact "shortly" regarding the claim. However, there was a mix up in the intitulement of the letter which needed to be sorted out.
On 9 February 2011 the plaintiff attended a conference with Mr Andrew Lidden SC and a representative of Brydens. There was a discussion, clearly, of the plaintiff's work injury damages claim. A written advice was given by Mr Lidden on 9 February 2011. That has not made its way into evidence. On 15 March Brydens wrote to Turks requesting details of any statements taken from the worker and Leanne Pryor and an updated list of workers compensation payments made. Ms Fletcher provided the plaintiff's statement and that of Leanne Pryor, each made on 28 October 2004, on 17 March 2011. In that letter Ms Fletcher drew to the attention of Messrs Brydens the provisions of s 151D of the Workers Compensation Act1987 and again requested advice from Messrs Brydens as to whether the plaintiff was intending to pursue her work injury damages claim. To that request, Messrs Brydens made a positive response on 6 April 2011. In that letter Messrs Brydens asked if Turks could provide Brydens with a copy of any statement taken from Mr Robinson.
On the Ides of March 2011 at the time of writing to Turks requesting statements from the plaintiff and her sister and an updated list of workers compensation payments, Brydens wrote to the plaintiff. They referred to the "recent" conference with Mr Lidden SC on 9 February 2011 and advised that Brydens were "currently chasing up the expert professor, Paul McGreevy, for an expert report". The only evidence of what Messrs Brydens did as far as Dr McGreevy is concerned is a letter to him bearing date 24 May 2011. That letter enclosed a report of the plaintiff's general practitioner, which would be of minimal significance to the Professor, and provided copies of the statements of the plaintiff, the defendant, and Leanne Pryor, each made on 28 October 2004. Messrs Brydens did not request an expert report as such. What they requested is this:
"We would appreciate if you would review this material and advise our office of the cost of preparing a preliminary report in support of this case."
Brydens were not requesting an expert report as such but merely trying to ascertain the potential cost of it, no doubt because it could be a large disbursement. There is nothing to suggest that Dr McGreevy, who by this time was a professor, responded to Messrs Brydens' request.
The plaintiff clearly was distressed by the glacial preparation of her work injury damages claim. On 4 July 2011 she wrote to Brydens. The first paragraph of her letter, in essence, summarises her email of 20 August 2010 which I have already quoted. The letter from the plaintiff goes on to say this:
"It is now coming up to 15 months. I deeply regret my decision to transfer to your organisation, and am in the process of looking for someone else to take over my case. Late last year (August) I called Emma, who admitted that she had done very little on the case, this prompted my first call of complaint to you. You said you were surprised at what she had, that as looking at the file it appeared that she had [done] quite a bit. You both can't be right.
When I met with the barrister, Andrew Lidden, on 9 February, he was of the opinion that the case has been going far too long and should be wrapped up asap. It was also discovered at this meeting that the Vet expert hadn't been contacted. I had to point out his contact details were in the file as I had spoken with him personally on two occasions previously.
I called Emma last week to check on progress and was given the same answer I had been given twice before, ie still waiting for response from the Vet expert. I also asked Emma to arrange a meeting with you, so I could express my dissatisfaction face to face. It is now Tuesday and I have heard nothing.
I know of no other organisation where a generic email is used for contacting staff. I am the client, and should be able to have direct communication with the person handling my case. Not have to wait weeks for snail mail or have my phone call returned.
Can you please explain what work has been done to date, and give me a timeframe for completion. I expect an answer via email by the end of this week."
On 11 July 2011 the plaintiff caused to be sent to Brydens an authority authorising and directing Brydens to send her files, documents and papers to Messrs Lough Wells Duncan of Wollongong who clearly had been instructed to act now for the plaintiff. The plaintiff's evidence is that she was referred to this firm at Wollongong by a friend who had been represented by, inter alia, Mr Wells. Mr Trevor Wells of Lough & Wells confirmed that he received instructions to act for the plaintiff on 11 July 2011. He did not receive the plaintiff's file from Brydens until 22 November 2011.
He then arranged for a conference which took place on 2 December 2011. On 9 December 2011 Mr Wells wrote to the defendant's insurer requesting further information. That received a response from Ms Fletcher of TurksLegal on 20 December 2011. With that letter Ms Fletcher enclosed a copy of the defendant's insurer's response to the s 281 notice and confirmed that no pre-filing statement had yet been served. Again in that letter Ms Fletcher drew attention to s 151D of the Workers Compensation Act1987.
By 16 April 2012 Mr Wells had settled a pre-filing statement in an appropriate form and served it upon Messrs Turks. Turks confirmed that it was received on 18 April 2012. The pre-filing statement is annexure TW40 to Mr Wells's affidavit of 29 May 2014. Inter alia, it lists documents which were served with the pre-filing statement. At the end of the pre-filing statement is a list of "documents that may be required". There are six such documents or sets of documents. The final one is a "liability/expert report of Dr Paul McGreevy" who probably should have been referred to at the time as Professor McGreevy.
On 11 May 2012 Messrs Turks served a pre-filing defence enclosing a large number of documents which included the statement of Mr Phil Robinson of 16 March 2009. No objection was taken to the plaintiff's prefiling statement. It is important to bear in mind what was said by Bell JA with whom Basten JA and Gyles AJA agreed in Paper Coaters Pty Limited v Jessop [2009] NSWCA 1:
"45 In a case in which a defendant asserts that a pre-filing statement is incomplete, and therefore defective, the claimant may accept that the statement is defective and cure the defect by serving the additional documents and information identified by the defendant. Alternatively, there may be a dispute about the matter in which case the Registrar [of the WCC] may give directions to cure any defect including that the claimant serve additional documents and information. In either instance subs 317(4) is engaged and service is considered not to have been effected until the last of the documents and information has been served. There is no uncertainty about the date of service because the additional documents and information that comprise the pre-filing statement are identified either in the defendant's notice of alleged defects or in the Registrar's directions. In each case the additional documents and information are required in order to complete the pre-filing statement. However, subs 317(4) is not on its face confined to cases in which the defendant asserts under subs 317(1) that the pre-filing statement served on it is defective. It is arguable that subs 317(4) permits a claimant to serve his or her pre-filing statement in stages. However, in such an event the first document that is served must identify the additional documents and information that are to comprise the pre-filing statement, since otherwise the defendant is unable to determine when the pre-filing statement is served. Moreover, unless the additional documents and information are identified in the initial document that is served it would not be correct to describe them as being required in order to comprise the pre-filing statement.
46 There is no evidence of the contents of any covering letter under which the schedule of documents was served on the appellant. Mr Jobson said that there had been no assertion made on the respondent's behalf that the first pre-filing statement was not complete. This is consistent with the assertion in the affidavit of Spiro Eistis, the solicitor acting for the respondent, that on or about 1 June 2006 a pre-filing statement was served on the defendant and its workers compensation insurer (par 3, affidavit sworn 8 August 2007, Red 186.B-F). The appellant acted on the assumption that the document served on it on or about 1 June 2006 was a pre-filing statement within s 315(1), to which it responded by serving a defence within s 316(1). It may have been open to it to consider that service had not been effected because the documents identified in Items 10 - 14 had not been served. Such a decision however would have involved significant risk. Particularly since Item 12, was in terms "updated medical reports to be provided". The appellant could not know when the last document answering this description had been served. In any claim which ultimately proceeds before a court updated medical reports are likely to be obtained and the conditions for the grant of leave to rely on them established. In my opinion the respondent's foreshadowed reliance on updated medical reports did not amount to any indication that the first pre-filing statement was incomplete without them. However, different considerations may apply to Items 10, 11, 13, and 14 of the schedule. It was open to the appellant to assert that the pre-filing statement was not complete without these documents. However, the appellant lost its right to so assert after seven days. The appellant served its pre-filing defence. It may be that the respondent could have objected to the service of the pre-filing defence asserting that service of the pre-filing statement had not been effected. But this is not what happened. The respondent referred his claim for mediation consistently with acceptance that his pre-filing claim had been served on the appellant at least 28 days earlier: s 318A(1)."
In other words, the service by Messrs TurksLegal of the prefiling defence to the prefiling statement might be seen to be a waiver of the fact that the plaintiff had not yet served her expert report. The parties had now reached the position where there had been the service of a prefiling statement and a prefiling defence. The next hurdle to be jumped in the statutory steeplechase was the holding of a compulsory mediation.
On 9 November 2012 Messrs TurksLegal wrote to the plaintiff's new solicitors. The substance of the letter is this:
"I refer to our telephone conversation on 21 August 2012 regarding the service of expert evidence after mediation should the matter fail to resolve.
I advise that my client requires all evidence to be served prior to any mediation.
Noting that your client's injury occurred in January 2004, I further advise that there is a significant s 151D time limit issue which will be relied upon by the defendant. My client will pursue payment of its costs if, in due course, leave is not granted to the plaintiff to proceed with her claim out of time.
In the circumstances, I take this opportunity to invite you to withdraw your client's claim for work injury damages given that my client has suffered prejudice as a result of the delay in bringing the claim."
It can be seen, therefore, that what was inhibiting the advancement of the plaintiff's claim was the lack of the expert report from Professor McGreevy. Furthermore, the defendant did not wish to go to mediation without that evidence being provided to the defence, if it were to be relied upon by the plaintiff. The telephone conversation of 21 August 2012 is the subject of para 20 of Mr Wells's first affidavit sworn on 1 May 2014. In that he says this:
"On about 21 August 2012 I had a telephone conversation with a solicitor at Turks regarding mediation with the material/evidence available, that is, without formal service of an expert report. Subsequently I was advised 'client will not agree to mediation with an expert'. This conversation took place on or about 20 September 2012. I subsequently arranged for the briefing of an expert. The gathering of the information required was attended to with appropriate statements and this material was forwarded on or about 26 October 2012. Further information was requested by him and supplied to him on 14 November 2012. The expert report of Paul McGreevy was received on or about 27 November 2012 and served on the defendant's legal representative by letter dated 20 December 2012."
I should indicate that Professor McGreevy's report bears on its face the date 24 November 2012, but in the body of the report the professor refers to a telephone conference with the plaintiff herself on 26 November 2012 at 2.44pm. One might, therefore, see that, although the report bears date 24 November 2012, it was not completed till either 26 or 27 November 2012 and then sent to Mr Wells.
On 19 March 2013 the plaintiff prepared an application for mediation of a work injury damages claim which was sent to the Workers Compensation Commission on that day. The application was served on the defendant's solicitor under cover of a letter of 21 March 2013. The mediation conference was held on 22 May 2013 but was unsuccessful. It would appear that, either at the mediation or in a conference preceding it or a conference succeeding it, Mr Morgan of counsel suggested further investigation and inquiry.
That was carried out and that led to the statement of claim and statement of particulars in personal injury matter being filed in this Court on 2 August 2013, over nine and a half years after the plaintiff was injured on 14 January 2004. The defendant filed a defence on 28 August 2013 and the tenth plea in the defence was this:
"The defendant relies upon s 151D of the Workers Compensation Act 1987 and says that the plaintiff is out of time to commence proceedings."
However, the plaintiff did not file a notice of motion seeking leave under s 151D(2) until 2 May 2014, a delay of some nearly nine months.
The principles governing applications of the current type are fairly well known. I set out some of those principles in [49] and [50] of Feltham v Workers Compensation Nominal Insurer [2013] NSWDC 189. The principal considerations are succinctly stated by Ipp AJA with whom Powell and Beazley JJA agreed in Uniting Church in Australia Property Trust (NSW) t/as Woodfield Retirement Village v Lea [2002] NSWCA 55:
"33 In my reasons in Itek Graphix Pty Limited v Elliott (2001) NSWCA 442 (with which Spigelman CJ and Sheller JA agreed) I 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 the expiry of the limitation period, the general question that has to be asked is what is fair and just (per Gleeson CJ in Salido v Nominal Defendant[1993] 32 NSWLR 524). Or what does the justice of the case require (per McHugh J in Brisbane South Regional Health Authority v Taylor). 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'.
34 Those four rationales 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."
Earlier in that case his Honour, quoting from what was said in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, said that there is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the Court's discretion. The High Court in Brisbane South also refer to an earlier dictum of Gibbs J in Campbell v United Pacific Transport Pty Limited (1966) QdR 465 at 474 that it is for the prospective defendant to place in evidence sufficient facts to lead the Court to a view that prejudice would be occasioned to it, and once that has been established it is for the putative plaintiff to show that those facts do not amount to material prejudice.
In Uniting Church v Lea the putative defendant established prejudice. In that case the appellant led evidence that an important witness to the respondent's fall in a nursing home was now residing in China at an unknown address and, as a consequence it was prejudiced. Similarly, the appellant discharged the evidentiary onus upon it in regard to proving that those persons who were present in the ward in which the respondent slipped and fell at the time of the incident had died by the time the respondent in those proceedings had sought leave to revoke an earlier election under s 151A of the Workers Compensation Act 1987. At [43] Ipp AJA said this:
"The respondent's back was injured in the incident on 10 March 1994. The appellant learned for the first time some five years and nine months later that the respondent was alleged that it negligently caused her injury. This contention was made long after settlement of the respondent's claim for permanent loss compensation under the [Workers Compensation] Act. In these circumstances, it weeks to me that the respondent's claim based on negligence was indeed suddenly sprung on the unsuspecting defendant many years after the injury had been sustained. The result was that the appellant lost an opportunity to take statements from eyewitnesses to the incident and opportunity to call at least one of the witnesses to testify at any trial that might result."
Mr Davies, for the present defendant, referred me to New South Wales v Judd [2003] NSWCA 355. In that case the plaintiff sought an extension of time under s 60C of the Limitation Act1969 to bring an action for damages against the State for an alleged assault by a police officer. The plaintiff in that case was two years and three months out of time. The extension was granted on the basis that a fair trial could be held because the plaintiff himself had been a principal witness, in other words the complainant, in a criminal prosecution of the policeman, which was unsuccessful. Mr Davies referred me to a dictum of Handley JA concerning the effect of poor legal work:
"43 It should not be thought that bad legal advice or lack of diligence by a plaintiff's solicitors provides an easy road to an extension under s 60C(2) or its equivalent. Ignorance of relevant facts will support an extension, ignorance of their legal significance will not. Lack of legal knowledge is a misfortune, and not a privilege, as McHugh J said in Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459. Litigants are expected to be diligent in their own interests.
44 In my judgment the critical factor which distinguishes this from a normal case where a plaintiff has been let down by his solicitor, is that a complaint was promptly made on behalf of the plaintiff which led to criminal proceedings against the police officer. The complaint, the plaintiff's willingness to give evidence in the criminal proceedings, and the extent and objective nature of his injuries must have indicated to the Police Department that a civil claim would be made. Such an action would have been expected."
Mr Davies also referred me to Sea Coatings (Australia) Pty Limited v Pascoe [2008] NSWCA 54 in which Handley AJA pointed out at [15] that principles under ss 60C and 60E of the Limitation Act1969 apply whether an application is under s 151D(2) of the Workers Compensation Act or under s 60C of the Limitation Act.
One further principle which has to be borne in mind is that stated in [50] of Feltham v Workers Compensation Nominal Insurer:
"One further matter to be borne in mind is what 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 JA concurred in Strasburger Enterprises Pty Limited trading as Quix Food Stores v Serna [2008] NSWCA 354 at [52]."
Two further considerations which were relied upon by the present defendant appear in dicta of Rothman J in Pearce v Integra Coal Operations Pty Limited [2014] NSWSC 561. At [35] his Honour said this:
"The delay of six and a half years is not the result of any deliberate conduct on the part of Mr Pearce, although the judgment of Mr Pearce's solicitor that the proceedings were unable to be commenced in time may be treated similarly to a deliberate act of not commencing proceedings. That deliberate act is not a deliberate act involving lack of diligence on the part of the plaintiff."
At [39] his Honour said this:
"It is the whole of the delay that must be examined in dealing with whether the discretion should be exercised. As earlier stated, Integra does not claim significant prejudice. It is plain that a fair trial can occur."
I accept that I must consider the whole of the delay up to the time of the commencement of the proceedings. The major submission on behalf of the defendant is that he has been prejudiced by the delay, in particular because no approach was made to Mr Phil Robinson until 16 March 2009, more than five years after the plaintiff's injury. With the lapse of time, one could expect any person's memory to fade, to become less acute, to become hazy or lacking in detail. The defendant submits that that is especially so when it comes to the question of what sedative may have been used and the amount of the dose. Mr Davies for the defendant pointed to the inconsistency and extent of the evidence that might be given by Ms Pryor and Mr Robinson to which I referred yesterday.
However, when I read the statement of Mr Robinson in full, it appeared to me that he had a relatively good recollection of the event. For example, on p 2 of his statement he said this:
"Prior to [14] January 2004, there were no previous incidents of horse when under a sedative hitting or striking horse handlers when on working on Boomerang Berrima Stud."
It is also to be recalled that Mr Robinson left Boomerang Stud in February 2004. In other words, this appears to have been a "one off incident" not something that occurred regularly or something of which there were a number of instances which might cause him to confuse details of one incident with those of another. Furthermore, at the foot of the same page Mr Robinson specifically states that he could recall the events of 14 January 2004. He could also recall the time at which he commenced work. Furthermore, the circumstances of the event are striking when regard is had to the statement at the top of p 4 of his statement. It is this:
"I first became aware of her facial injuries when Leanne Pryor rushed out from the yearling barn and yelled out and was screaming[,] she was hysterical. I then rushed back to the barn and observed Danielle Jones lying on concrete floor in the breezeway, by this time the Commands' colt was back in his box."
A lady coming out of the barn screaming hysterically causing him to rush to the barn and observing the plaintiff lying on the concrete floor was no doubt a significant event and would be a significant event for anybody. It is something which would fix the facts in his mind. The fact that five years later Mr Robinson may have had an incomplete recollection of the event is wholly acceptable, but one must bear in mind that he had not had, at the time he was interviewed by Ms Fletcher this year, cause to refresh his memory from the statement that he had made on 16 March 2009.
True it is that Mr Robinson was unable to recall the dosage that he administered, but he told the interviewer in his statement of his usual practice and, although the plaintiff's statement suggested that Mr Robinson did not know what he actually administered to Your Wish, in his statement he did say that it was a quantity of ACP. This is a drug known as acepromazine maleate. Annexed to Mr Lipovac's report of 19 March 2009, under cover of which Mr Robinson's statement was conveyed to Messrs Turks, were details of ACP clearly printed off the internet but referring to that drug which was then presented in two forms, either in tablets or paste syringes. The inference to be drawn from the evidence before me is that the drug that was administered to Your Wish was, in fact, a liquid and that it was injected by syringe. This is hardly a "paste syringe". The difference is clear because, in the article annexed to Mr Lipovac's second report, reference is made to ACP having its maximum effect after one and a half or two hours, but it is clear from the evidence before me that, when injected in liquid form, the drug is much more quickly acting. The article does, however, tell me that ACP is not a true sedative but merely an anxiolytic, a drug that decreases anxiety. As ACP is an anxiolytic rather than a true sedative, a horse can still react and kick accurately when under its influence. According to the article, aggressive horses may become more aggressive when they have been placed on ACP.
Furthermore, the identification of the actual drug administered to Your Wish ought be ascertainable from the records of the defendant. Drugs kept by a horse stud for administration to animals for calming them down would presumably be a tax deduction for the horse stud. Records of drugs used in, for example, the financial year ending 30 June 2004 ought be kept until 30 June 2009, well after the time when the plaintiff had served the notice under s 281 on 24 April 2008 and after the time when Mr Robinson was interviewed by Mr Lipovac on 16 March 2009. It may well be that the Boomerang Stud did not have any anxiolytics available to it other than ACP. If other anxiolytics were available or, indeed, a true sedative were available that might have been administered by Mr Robinson, it could be clearly identified from the records of the stud. Furthermore, there is no evidence adduced from the defendant himself who, as the manager of the stud, would presumably know intimately what went on at the stud, especially considering his long term involvement with it and his experience in the horse industry.
I am not, therefore, persuaded that there is any material prejudice to the defendant from the fact that Mr Robinson was only interviewed on 16 March 2009, more than five years after the event now in question, the plaintiff's injury. Furthermore, to add to the factual considerations, one must consider one of the statements made by Professor McGreevy in his report. On p 7 the professor said this:
"Horses can occasionally kick under sedation or tranquilisation. However, a thoroughly sedated horse is unlikely to kick to the height of a standing adult's face. This leads me to believe that Phil Robinson did not adequately sedate the horse."
In other words, that observation by the Professor supports evidence that might be given by Ms Pryor that there was an inadequate amount of tranquiliser or sedative administered to Your Wish.
There is no suggestion on the evidence before me that the defendant, Mr Spackman, who is presently 71 years old and now living in or near Goulburn, has suffered from any medical misfortune or degenerative condition which might affect his memory and recollection of how things were at Boomerang Stud in January 2004 and immediately antecedent thereto. There is no suggestion, for example, that his memory is failing and he would not be able to give adequate instructions.
I am not persuaded, on the balance of probabilities, that the defendant has been prejudiced in any material way by the delay occasioned by the plaintiff's failure to comply with s 151D. In any event, the plaintiff's notice under s 281 of the 1998 Act was given on 24 April 2008 and clearly alleged, as a head of negligence, a failure to properly sedate Your Wish. In other words, the allegation was clearly raised four years and three months after the event and the defendant then delayed for another 11 months before obtaining the statement from Mr Robinson. There has been delay, clearly, on both sides. In the course of argument when I drew to the attention of Mr Davies the fact that the plaintiff gave notice of the allegation of under-sedation by Mr Robinson on 24 April 2008 and the defendant then delayed until March 2009 to obtain a statement from him, Mr Davies very properly submitted that it was unlikely that Mr Robinson's recollection of events would have been any better in April 2008 than in March 2009. That may well be so but, as I have already pointed out, I am persuaded that Mr Robinson's recollection was more than adequate when he was interviewed in March 2009.
That there has been delay is as plain as the proverbial pikestaff. One cause of the delay, however, is the requirements of the workers compensation legislation itself that the plaintiff's lump sum compensation be ascertained prior to her recovery of damages and, as is well known, that the whole person impairment must be 15% or more. That was ultimately not conclusively determined until 17 April 2009. Although the 1998 Act requires that lump sum compensation must be paid before damages are recovered, and does not prevent the commencement of proceedings unless the WPI has been conclusively ascertained, it would be a brave solicitor indeed who commenced proceedings at common law only to find that his client had not crossed the statutory threshold to entitle him or her to claim work injury damages, leading to the need to discontinue the proceedings and pay the defendant's costs.
The significant cause of delay after 17 April 2009 was the perceived need to have the expert's report. I have sought to outline what steps were and were not taken to obtain the report from Professor McGreevy, which appears to have gone on from 6 April 2009 until the Professor generated the report in late November 2012, a delay of some three and a half years. The information given by LHD to the Professor was clearly inadequate for him to express any opinion and, although greater information was given to him by Messrs Brydens, they did not pursue the provision of the report at all but merely sought to ascertain how much the report might cost. The efforts of Mr Wells to obtain the report have been much more successful.
There is no need under the workers compensation legislation to provide a full and satisfactory explanation for the delay as is required under the Motor Accidents Compensation Act and its predecessor, the Motor Accidents Act. However, counsel for the defendant approached the matter as if it were. In any event, it is clear that the defendant, through his solicitors, to a large extent gave the plaintiff leeway and, indeed, considerable leeway in allowing them to persist with their attempts to commence a work injury damages claim. For example, one can refer to the service of the pre-filing defence in answer to the pre-filing statement when objection could have been taken to the prefiling statement because it did not have annexed to it all the documents to which it referred. It is clear that the defendant's solicitors were seeking information referrable to the quantum of the plaintiff's work injury damages claim from 2009 onwards as well as seeking to view any expert report that was obtained by the plaintiff. In other words, there has been some acquiescence in the delay by the defendant's solicitors, and I do not mean that in any pejorative sense, but there was co-operation, the co-operation one ought expect, between professional people dealing with each other seeking to bring to finality a claim of the current nature.
True it is that with the effluxion of time the memory of every witness will dim and details will be lost. However, as I have sought to show, this was a significant, unusual event at the Boomerang Stud and one might think that it would stay in the memory of the witnesses for a considerable period of time. Equally, statements were obtained from the plaintiff, the significant witness Leanne Pryor, and from the defendant in October 2004 and there is, of course, the statement of Mr Robinson, another equally important witness, that was obtained in March 2009.
Returning to the four rationales for limitation periods referred to by McHugh J in Brisbane South Regional Health Authority v Taylor, these points must be made. The first principle is that as time goes by relevant evidence is likely to be lost. Here, there is no evidence of any lost evidence; rather, the usual concern about the effluxion of time and the effect of the effluxion of time on the memory of relevant witnesses, I have sought to address that.
The next principle is that it is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed. Here, the circumstances of the injury itself have been kept alive by the efforts of solicitors on each side between the accident itself and at least March 2009 when the last important witness, Mr Robinson, was interviewed, and by the fact that the plaintiff has been under continuing medical treatment throughout, providing histories to medical practitioners from time to time, probably with nauseating regularity. This is not a case, for example, where the fact that a common law action is to be brought is sprung, so to speak, on the defendant unawares to him. This is not the sort of case considered by the Court of Appeal in Itek Graphix Pty Limited v Elliott nor the sort of case that was considered by that Court in Uniting Church in Australia Property Trust v Lea. The counterconsideration, of course, is the oppression to a plaintiff who may have a valuable cause of action which is defeated. Here, it would appear, bearing in mind the lump sum compensation recovered by the plaintiff and by the injuries that she sustained, that her cause of action might be extremely valuable.
The third consideration is the desirability for people in our community to be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. As a general proposition that is true. However, here, we have an insured defendant and that insurer indemnifies the defendant not only for his liability to pay damages to his former employee at common law but also for his liability under the workers compensation legislation. As I have pointed out, the plaintiff was paid weekly payments of compensation from the time of the accident until March 2014, a period of over ten years. At the time that the plaintiff served the s 281 notice and at the time of serving her pre-filing statement and at the time of serving the statement of claim, the plaintiff was in receipt of weekly payments of compensation and no doubt other benefits such as expenses under s 60 of the Workers Compensation Act1987. The insurer of the defendant would have to have some estimate or reserve placed against the potential value of the plaintiff's workers compensation claim and, considering that there was permanent impairment, one might think that the reserve would make allowance for the payment of compensation until the plaintiff's putative retirement date. Clearly, the estimate for a common law action might be different. The liability for workers compensation weekly payments and things such as s 60 expenses can be amortised over a long period of time, whereas a common law estimate might require the insurer to have a reserve against the payment of a large lump sum within the immediate future; that is, within the next 18 months to two years. Clearly, there are differences but, in any event, in a case of the current nature there could be no suggestion that the defendant had no reserve or allowance available to him to meet the potential claim.
The final consideration is that the public interest requires that disputes be settled as quickly as possible. That applies to all forms of disputes in all areas of the law. True it is that there has been great delay here, but a large part of the delay is because of the need to comply with that to which I have referred extra-curially as "the statutory steeplechase" that is established by the workers compensation legislation.
Another significant submission put by the defendant is that the lack of diligence by the various solicitors who have acted for the plaintiff from time to time must be attributed to her and not used in some way as an excuse for the inaction which has occurred. It was for that reason no doubt that Mr Davies referred me to the decision of the Court of Appeal in New South Wales v Judd to which I have earlier referred. However, it ought be clear from the facts which I have sought to set out that it was the plaintiff herself who was concerned about having a work injury damages claim which she raised early on in one of her early visits to LHD. That firm appears to have done little to advance the case, in particular little to obtain necessary expert evidence on the question of liability. I have set out the complaints which the plaintiff made to Mr Bryden about the lack of service to which she was subject when she was a client of LHD. I have also set out her remarks to Mr Bryden in both her email and her subsequent letter about the lack of diligence by Brydens to advance her case, leading her to consult her current solicitor. I have also referred to the time taken by various firms to transfer her file from the one to the other and of the delay caused necessarily by attempts by each solicitor to preserve his position on the question of costs already incurred. Bearing in mind what the plaintiff said about both LHD and Brydens, it would be wrong in principle, in my view, to attribute their lack of diligence, in fact, default in some circumstances, to the plaintiff herself who appears to have been intent upon pursuing her claim for work injury damages.
A remaining issue, and one that largely occupied the Court yesterday morning, was the question of whether leave should be granted to the plaintiff to continue with her action on the basis that it would be futile to grant leave if inevitably the plaintiff would lose her case. In other words, it would be otiose exercise to grant leave for something to occur which was doomed to failure. The plaintiff's case is not without difficulties. Eventually, because of the Socratic method employed in my Court, Mr Davies very properly conceded, eventually, that the plaintiff's case was not doomed to failure.
I should point out some of the difficulties which I see with the plaintiff's case at the present time. On p 7 of Professor McGreevy's report is this matter:
"Although Mr Robinson cannot recall sedating six horses, if he was withdrawing acepromazine maleate from the standard-size 20 ml bottle in which it is currently retailed, by his own estimate (5 - 7 mls per horse), he would not have had sufficient drug to sedate six horses. If, instead, he had been using the alternative 100 ml bottle, this would not have been the case."
The word "currently" is italicised in the original report. That indicates that the professor may not know presently how ACP was marketed in 2003 and 2004. However, that should be able to be ascertained from some form of veterinary pharmacopoeia, a veterinary equivalent of MIMS. Some research may be required. Furthermore, it is not clear how many drug companies market ACP in the veterinary field.
On p 8 of his report, the professor refers to a publication of his own "Equine Behaviour - A guide for veterinarians and equine scientists". The professor refers to that publication as having been made in 2004. It offers the following matter:
"During a veterinary examination of a potentially fractious horse, movement and risk of being kicked can be decreased by restraining one of the forelimbs...A forelimb can be lifted and the hoof brought up to the elbow and held there by a handler. When holding the forefoot of a horse in this way, handlers must avoid teaching the horse to lean, because this defeats the object of transiently disabling the horse. A light grip on the foot is desirable, but it is important to avoid giving the horse an opportunity to snatch the foot away, which often happens before a horse kicks out at the veterinarian.
Regardless of the presence or absence of alarm bells in a horse's history and warning signs in its behaviour, it pays to reduce risks when handling all horses, eg by ensuring that during all procedures, equipment and personnel within a stable are kept to a minimum and that personnel remain on the same side of the horse as one another.
Tact and subtlety are the cardinal markers of good horsemanship. Young, naïve and fearful horses demand the greatest tact. Sudden movements by personnel should be avoided so that one can clearly identify which responses can be elicited and controlled by a steady approach."
Whether this publication was a monograph or published in some technical journal available to veterinarians and equine scientists is not clear from the professor's report. However, it is unlikely that it was published in the 14 days between the commencement of 2004 and the plaintiff's injury. It is even less likely that it would have filtered down to persons such as the current defendant, a horse trainer. The plaintiff will need to establish that the advice given by the professor in the publication of 2004 was readily known in the horse industry prior to the plaintiff's accident.
After making that quotation from his work the professor continues thus:
"The same principles apply in handling horses for procedures, such as clipping, that may cause a counter-predator response, such as kicking. Therefore, depending on the horse's responses to them, helpful steps in this instance may have included lifting a foreleg. Regardless, it is considered best practice to have the handler and the operator on the same side of the horse so that the handler can see and help to address any unsafe responses the horse may make to the operator. Similarly, moving quietly around sedated and unsedated horses reduces the chances of alarming the horse and eliciting a counterpredator response.
In assessing a horse's response to being clipped, I would generally advise that the horse be separately assessed:
· while the clippers were switched on (auditory stimulation);
· while the area to be clipped was palpated manually, with the activated clippers held nearby (tactile stimulation plus auditory stimulation);
· while the area to be clipped was touched with clippers (vibratory, tactile stimulation plus auditory stimulation)."
Again, it will be necessary for the plaintiff to prove that such principles were well known in horse breeding studs prior to the plaintiff's accident. Earlier in his report, the professor referred to the same point made in the part of his report which I just quoted. That earlier mention is this:
"A visual assessment, such as Mr Robinson said he conducted one to two minutes after administering the sedative, is not sufficient to establish that horses will not react with a powerful highly elevated kick when their hind legs are touched. Instead, the areas that are to be approached with a potentially aversive stimulus - in this case, electric clippers, which can cause a counterpredator response, viz kicking - should be palpated with care to establish the level of abiding sensitivity to tactile stimulation."
Again, the plaintiff must establish that that was known or ought to have been known in the horse breeding industry prior to the plaintiff's accident.
Another criticism levelled by Mr Davies about the professor's opinion concerns the professor's observations about the use of ACP. On p 5 of his report, the professor said this:
"Side effects with acepromazine maleate are not common, but its use in stallions is usually considered contraindicated due to the risk of priapism (sustained nonsexual erections that can lead to penile trauma) (Boehringer Ingleheim, 2006).
Given the warnings associated with the use of acepromazine maleate in entire male horses that are breeding stallions or that may have future breeding potential (as in the Your Wish colt), I feel it inappropriate for this pharmaceutical to have been administered without direct veterinary supervision."
The first thing to note is that the unwanted side effect of inducing priapism appears to have been identified in 2006. If that side effect had not been identified before that time, then it would appear that the defendant could not be held to be liable merely because ACP was used to try to tranquilise Your Wish. Similarly, the defendant could not be criticised if the side effect was not known in the horse breeding industry for not having the ACP administered under direct veterinary supervision.
Mr Davies further criticised this area of the professor's opinion by pointing out that the greater the amount of ACP administered, the greater the risk of the side effect and, therefore, the defendant could not be criticised by giving a low dose of the drug to Your Wish. That is quite correct unless, of course, the defendant knew prior to 2004 that ACP should not be administered to an ungelded mature horse. Whether a nearly 17 month old yearling colt might be likely to suffer from priapism I do not know because I know nothing of the ontogenesis of horses. However, that is again another issue which needs to be explored.
Clearly, the plaintiff faces a number of difficulties merely relying upon the opinion of Professor McGreevy. However, it is still arguable that, if the sort of circumstances referred to by the professor were well known in the horse breeding industry prior to the plaintiff's accident, there was some negligence on the part of Leanne Pryor in merely standing ahead of Your Wish, immediately in front of him, rather than standing on the offside of the horse and holding up its lower forelimb to the elbow, which would inhibit the horse from kicking backwards with its nearside hind leg because, if it did so, the horse might fall over.
Equally, it is a matter that needs to be explored as to whether Mr Robinson was negligent in only giving a small dose of ACP (if it were ACP) to Your Wish and then failing, as suggested by the professor, to palpate the legs to make sure that sensation had been reduced. It may be that what caused the horse to kick back and strike the plaintiff was the plaintiff's suddenly standing up from being crouched or bent over or squatting while she was clipping the horse's hind fetlock and that caused the horse to react in the way it did. If that was the proximate cause of the horse's behaviour, then the question is whether that was known or ought to have been known by the employer and whether the plaintiff was given adequate instruction as to how she should behave around the horse. However, the case is clearly not doomed to failure.
Further inquiries are yet to be made and avenues explored. In that regard I note that Mr Wells, who appeared before me on Monday in the absence of Mr Barter who appeared on Tuesday and Thursday of last week but was not available on Monday, will take no point under s 318 that the defendant did not serve an expert report with its prefiling defence, Mr Davies having indicated that the defendant was seeking its own expert evidence, and the plaintiff will not take any technical point to try to exclude the opinion of the defendant's expert once obtained, that expert clearly being qualified to comment on the opinions expressed by Professor McGreevy.
I should add two further observations. No alternative type of sedative or tranquiliser was recommended by Professor McGreevy and, although he stated that some protective equipment ought to have been made available to the plaintiff, he does not say what it is or ought to have been and on p 8 of his report said this:
"Personal protective equipment in regular use around horses varies markedly (Hawson et al., 2010). It is not usual to don safety gear to groom a horse. However, some authorities are proposing the use of regular riding helmets for clipping fractious horses (eg, Smith, 2007). Even these sources do not advocate a full face visor, which seems would have been necessary to protect the plaintiff."
One will instantly observe that the authorities to which he refers are dated 2007 and 2010, well after the plaintiff's accident and, even so, anything so far advised would not have protected the plaintiff. In the circumstances, it appears that the Professor has not fulfilled the proper role of an expert of explaining what protective equipment ought to have been provided by the defendant back in 2004.
In summary, I am not persuaded that there has been any material prejudice caused to the defendant by the plaintiff's lack of diligence in getting her action for work injury damages on earlier than has been the case. I decry and deplore the delay here involved but, again, I cannot see any material prejudice to the defendant. Furthermore, the delay has been largely because of a failure of solicitors to act for the plaintiff as she wished them to act and which she herself has criticised from time to time. I cannot attribute that failure or default to the plaintiff personally. The plaintiff's action is potentially a very valuable one and it is not doomed to failure. No relevant evidence has been lost and, insofar as memories may have dimmed with the passage of time, I would point out that no trial can be perfect, but I am persuaded, on the balance of probabilities, that a fair trial can be held. Having weighed all the evidence and the arguments, I have determined that the ultimate question, that is, what is fair and just or what does the justice of the case require, indicates that plaintiff should be given the leave which she seeks.
For these reasons, I grant leave to the plaintiff, pursuant to s 151D(2) of the Workers Compensation Act1987, to commence proceedings for the cause of action alleged on 14 January 2004 on 2 August 2013.
ARGUMENT AS TO COSTS
HIS HONOUR: I order the plaintiff to pay the defendant's costs of this application. Now, ladies, can the exhibits be returned?
FLETCHER: Yes, your Honour.
HIS HONOUR: Thank you. Exhibits to be returned, as can the MFIs.
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