Khamiss v Sydney Roof Masters Pty Ltd

[2017] NSWDC 48

District Court

New South Wales

Medium Neutral Citation:	Khamiss v Sydney Roof Masters Pty Ltd [2017] NSWDC 48
Hearing dates:	17, 20-21 February 2017
Date of orders:	21 February 2017
Decision date:	21 February 2017
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	I grant leave to the plaintiff to commence proceedings in respect of the cause of action alleged on 9 February 2009 on 18 March 2016
Catchwords:	WORKERS COMPENSATION – LIMITATIONS – Section 151D(2) application for extension of time – Date of injury 9 February 2009, proceedings not commenced until 18 March 2016 – D filed defence pleading the P was statute-barred from recovery due to time lapse – P files notice of motion to extend limitation period 6 months later – Despite P solicitor’s multiple instances of delay, fair trial is not prejudiced – Part of delay due to statutory scheme – Notice of motion granted
Legislation Cited:	Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998
Cases Cited:	Bissett v State of New South Wales [2017] NSWDC 12 Brisbane South Regional Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 Leighton Contractors Pty Ltd v Fox; Calliden Insurance Limited v Fox [2009] HCA 35 Prince Alfred College Incorporated v ADC [2016] HCA 37 Walsh v State of New South Wales [2016] NSWDC 343
Category:	Principal judgment
Parties:	Hassan Khamiss (Plaintiff) Sydney Roof Masters Pty Ltd (Defendant)
Representation:	Counsel: Mr S Flett (Plaintiff) Mr D Baran (Defendant) Mr B Symons   Solicitors: Drexler Litigation Lawyers (Plaintiff) Hall & Wilcox (Defendant)
File Number(s):	2016/85464
Publication restriction:	No

Judgment

1. HIS HONOUR: This is yet another application under s 151D(2) of the Workers Compensation Act 1987. The application is made by a notice of motion filed on 8 September 2016. On 18 March 2016, the plaintiff filed a statement of claim in which he relies upon a cause of action alleged to have arisen on 9 February 2009. Under section 151D of the Workers Compensation Act 1987, there is a three-year limitation period. That three-year limitation period expired on 9 February 2012. Accordingly when the statement of claim was filed, the plaintiff was statute-barred. The defendant filed a defence on 4 April 2016 and the plea, numbered 8, is this:

"The plaintiff is out of time to pursue any claim for work injury damages pursuant to section 151D of the Workers Compensation Act (NSW) in relation to any claim arising out of any action against the defendant."

Why the plaintiff delayed until 8 September 2016 to make an application by way of notice of motion to extend the limitation period is completely unexplained. However, it ties in with other actions taken by the plaintiff's current solicitor, which indicate a lack of any urgency in the prosecution and presentation of the plaintiff's case.    

2. The plaintiff was born on 3 August 1986. At the current time, he is 30 years old. He left school at the end of 2002, having completed Year 10. He had attended Hurstville Boys High School. His work history is best set out in a report of Ms Abhi Mehta of InSite Injury Management Group made on 13 September 2013, following Ms Mehta's assessment of the plaintiff on 2 April 2013. That work history is this:

1. Casual retail assistant for McDonald's for one week in 2004.

2. Part-time cashier/shop assistant at Saab mixed fruit shop between 2005 and 2007.

3. Apprentice carpenter for Milas Builders Group at Arncliffe for six months, commencing in or about 2007. The evidence suggests that at the same time the plaintiff commenced this apprenticeship, he commenced appropriate tertiary studies at TAFE, but they were not completed.

4. 4. Working for the present defendant as a "carpenter", commencing in probably September 2008. I take that date from the plaintiff's statement of 28 October 2009, made to an investigator retained by the defendant.

3. According to Ms Mehta's report, the plaintiff's job with the defendant involved the following tasks:

• commercial carpentry

• using wood, metal, bricks

• erecting walls

• drilling, cutting, lifting, cutting and sanding the raw materials

• using tradesmen tool belts.

4. The plaintiff alleges he was involved in a workplace accident on 9 February 2009. The plaintiff did not lodge a claim for workers compensation until 19 September 2009. That is the date on which the plaintiff signed the document. The plaintiff said that the injury occurred at a factory at 6 Centenary Avenue, Moorebank. In the claim for compensation, the plaintiff said that the employer responsible for that workplace was Ali Hamoud of AAH Carpentry. According to the claim for compensation, the incident occurred about at 9.30am. 9 February 2009 was a Monday. One of the questions asked of the plaintiff in the document was, "What happened and how were you injured?" The answer given by the plaintiff is this:    "General duties - heavy lifting." The next question asked of the plaintiff by the form was this: "What task/s were you doing when you were injured?" The answer recorded is this, "Lifting walls". The plaintiff was also asked to give the names and daytime contact details of anyone who witnessed the incident. The plaintiff gave three names - Oscar, Jessy and Jeromee [sic, scil. ? Jerome or ? Jeremy]. The plaintiff provided a mobile telephone number for each of Oscar and Jessy, but provided no number for "Jeromee".

5. There is no dispute that the defendant company was beneficially owned and managed by the plaintiff's cousin, Youssef Khamiss. Prior to any workers compensation payments being made by the insurer of the defendant, a factual investigation was performed by Brooksight Investigations at the request of Allianz Australia Workers Compensation (NSW) Limited, clearly, the workers compensation insurer of the defendant. Each of the plaintiff and Mr Youssef Khamiss were interviewed by an investigator and written statements were taken from Youssef Khamiss on 26 October 2009 and from the plaintiff on 28 October 2009.

6. In paragraph 6 of his statement, Mr Youssef Khamiss stated that he was the owner and managing director of the defendant and that he had operated that business since 2007. At the time that he made his statement, the business was still trading. The next three paragraphs of his statement are these:

"7. ...I employed my cousin Hassan Khamiss as a sub-contractor sometime in 2008. Hassan's role was that of a labourer. At the time I had a contract with a building company to provide carpentry services on a complex at Lithgow. My job was to provide prefab carpentry products and we mainly worked at a factory located at Moorebank which was owned by Hansen and Yuncken. We were sub-contracting to AAH Carpentry and construction, who in turn were sub-contracting to Hansen and Yuncken.

8. While undertaking this contract, I had two employees whom I hired as sub-contractors. Hassan's main duties was [sic] to use a drop saw, moving building material, putting walls together and moving finished walls outside. The job did involve heavy lifting but if this was required, we would obtain assistance from other workers in the factory. Hassan had his own ABN number which he was required to have.

9. The contract ended some time in early April 2009. At that time, we had just returned from Lithgow, where we had two weeks work to complete the job. At that time, I put [off] my two workers, which included Hassan as I had no further work."

7. A small additional detail concerning the work that the plaintiff was doing is contained in a history given by the plaintiff to Dr Noel Dan, who was qualified by the plaintiff's solicitor and saw the plaintiff on 14 October 2013. The history is this:

"On 9.2.09, he and about 15 others were pre-fabricating walls for the Wogan [sic, scil. Wolgan] Valley Resort. They had to be put onto a skateboard like device, which was then rolled across the ground to be loaded to a vehicle and .. subsequently would be erected at the site.

On the subject day he was moving the wall with others when the wall started to tilt towards him. He was moving it with his left hand down and his right hand up and he felt a pinch in his back."

I have quoted that a little more extensively than was necessary at this time in order to avoid having to repeat the quote subsequently. The road through the Wolgan Valley ends up at the historic town of Newnes, or perhaps I should say, what remains of the historic town of Newnes, which are ruins and an hotel. One can understand that the defendant was pre-fabricating walls at a factory premises in Moorebank, and these were then taken to the Wolgan Valley Resort near Lithgow to be erected, and that when the construction of the Wolgan Valley Resort was completed, as far as the defendant was concerned, the defendant laid off the plaintiff, who had been hired specifically to do extra work because of the Wolgan Valley Resort sub-contract.

8. It is common ground that the plaintiff did not stop working until April of 2009. The evidence provides me with two different dates for when the plaintiff may have stopped working. One is in the claim form to which I have referred, which indicates the plaintiff stopped working on 10 April 2009, and another is a history obtained by Dr J Brian Stephenson, who first saw the plaintiff on 28 January 2010 for the defendant's insurer.

9. There is an issue as to exactly who was involved in the work that was performed at 6 Centenary Avenue, Moorebank. As I have indicated, Mr Youssef Khamiss says that the defendant contracted to AAH Carpentry and Construction, the principal of which appears to be Mr Ali Hammoud. I take that spelling of Mr Hammoud's surname from the report of Brooksight Investigations on 5 November 2009, rather than the spelling provided by the plaintiff in his claim form on 9 September 2009. In a statement made by the plaintiff to his solicitors on 9 February 2015, the plaintiff said in [24]:

"Sydney Roof Masters was sub-contracted to another company called Quality Carpentry Pty Ltd. The accident happened in the warehouse of Quality Carpentry Pty Ltd at 6 Centenary Avenue, Moorebank NSW."

10. There is before me, as exhibit C-C, a search of Quality Carpentry (NSW) Pty Ltd. That company was incorporated on 26 March 2007. Its director and secretary have been, at all material times, Heidi Harbord, who provides an address of 6 Centenary Avenue, Moorebank. According to the search, the principal place of business of Quality Carpentry (NSW) since 28 January 2009 has been 6 Centenary Avenue, Moorebank. Accordingly, it is unclear who was the owner and occupier of the premises at 6 Centenary Avenue, Moorebank - whether it was Hansen and Yuncken, or whether it was Quality Carpentry (NSW) Pty Ltd.

11. The defendant has filed two cross-claims. The first cross-claim is against Quality Carpentry Pty Ltd, and the second cross claim is against AAH Carpentry and Construction. No appearance or defence has yet been filed to either cross-claim. However, I was told by learned counsel for the defendant, Mr Flett, that AAH Carpentry and Construction was represented by Messrs Curwoods and that a solicitor from that firm was present in Court during the hearing of the application which commenced last Friday. The search of Quality Carpentry (NSW) Pty Ltd indicated that it was indebted to Bankstown Timber Pty Ltd for over $100,000, but that debt has been paid in part. The search also indicates that a default judgment has been obtained against Quality Carpentry (NSW) Pty Ltd for $8,858 for goods provided and services performed on a commercial basis by Abbiva Pty Ltd. The large debt due to the supplier of wood products would indicate that Quality Carpentry had been for some time involved in large-scale carpentry work.

12. To complicate this issue further, the plaintiff has obtained a statement from Mr Abel Kingi, which statement bears date 30 January 2015. Mr Kingi states that he was employed by "Quality Carpentry" as a labourer in 2008 and 2009. He states that he worked with the plaintiff for about five or six months. He states that the defendant was in fact working for Quality Carpentry.

13. The exact relations of the defendant to other businesses or corporations is unclear on the evidence before me, and who was the owner and/or occupier of the premises at 6 Centenary Avenue, Moorebank is also completely unclear. One of the allegations made by the plaintiff about his accident is that as the wall in question was being moved on a trolley or skateboard-like device, the wheel of the trolley/device stuck in a groove in the floor. One might think that that would indicate that there could be some common law liability attached to the occupier of the property, but the plaintiff does not wish to pursue the occupier of the property, learned counsel for the plaintiff, Mr Baran, taking the view that the plaintiff is precluded from so doing because of the decision of the High Court in Australia in Leighton Contractors Pty Ltd v Fox; Calliden Insurance Limited v Fox [2009] HCA 35.

14. These are interesting questions which need clarification. That clarification, of course, can be made at a full hearing. Suffice to say that there is no suggestion on the evidence before me that Quality Carpentry Pty Ltd or Quality Carpentry (NSW) Pty Ltd, or whoever may trade as a AAH Carpentry and Construction, no longer exist or is not available to be joined by the defendant in the proceedings, nor is there any evidence adduced by the defendant that the defendant would be prejudiced in the prosecution of its rights because of delay, and for example, the winding-up of a company or its being forced into liquidation or because of a lack of assets or insurance of somebody from whom it might seek contribution or indemnity.

15. The statement of claim gives these date hours of the injury relied upon:

"3. On or about 9 February 2009, the defendant was engaged in undertaking work for another company, Quality Carpentry Pty Ltd, situated at No. 6 Centenary Avenue, Moorebank in the State of New South Wales. The said work involved the plaintiff and other co-workers constructing walls made of timber on an assembly line, to create a large timber wall that could be assembled with other components. When the timber wall came off the process line, it was required to be moved another part of the factory and was a large and heavy object of dimensions of approximately 5-6 metres multiplied by 4 metres. The said timber wall would then be taken off the assembly line and placed onto a small flat trolley with casters. The timber wall was then to be moved to another part of the factory, where it would be placed against a wall, pending arrival of a truck for the purpose of loading and thereafter subsequent delivery.

4. On the said date, the plaintiff, together with other co-workers, were required to move the timber wall, using a small trolley, out of the factory to a place that was external to the factory, putting the timber wall against an external wall of the premises. As that activity was being undertaken, the plaintiff, assisted by others, moved the timber wall along the floor surface, which contained a groove, causing the trolley to become stuck, destabilising the timber, causing it to fall towards the direction of the plaintiff, who used his entire weight and strength to stop the wall falling on him, and as he did so, he sustained significant and acute injury to his lumbar spine."

The defendant does not dispute that the plaintiff has established a prima facie case that an injury of that type may have occurred, and that if such an injury can be established, that there is an arguable cause of action in the tort of negligence.

16. However, there remain a few "mysteries" about the circumstances of this incident. I have mentioned that in the claim form, the plaintiff stated that there were three witnesses to his injury and I have also pointed out the names that he supplied in the claim form. In his statement of 28 October 2009, the plaintiff said in [11]:

"On either 8 or 9 February, I went to work at Moorebank at 7am. My duties that day was [sic] making walls out of hard wood by screwing studs into a frame, after completing some walls, we had to place them on trolleys and move them outside. There were three or four staff who were pushing the trolley which contained the wall, my job was to hold the wall whilst the other three pushed the trolley. As we moved out of the factory, there is a concrete driveway with a groove, the trolley became the stuck and the wall sloped towards me, I immediately grabbed hold of the wall and yelled out for help, the three staff then helped me balance the wall. I then felt a pain in my left side, just above the buttock."

It is clear from that statement that the plaintiff was working with three other men. In [13] of the same statement, the plaintiff identifies those three men as being Jessy, Oscar and Doti. In the same paragraph he states that those three men were not employed by the defendant but he thought they were working for AAH Carpentry. It would appear that the person previously identified as "Jeromee" was now described as "Doti". The investigator from Brooksight Investigations stated this in his report:

"The claimant has nominated three witnesses who were pushing the trolley at the time. He was only able to identify them by their christian names of Jessy, Doti and Oscar. Youssef Khamiss advised us that the nominated witnesses were employed by AAH carpentry. We contacted the owner of AAH Carpentry, Ali Hammoud, who told us that the nominated witnesses had been employed as sub-contractors but no longer work with him. Mr Hammoud was unable to provide us with any surnames or contact details."

It is, unfortunately, quite common for some employers in the building industry to categorise their employees as "sub-contractors", many for the purpose of obviating their obligations to their employees, such as the payment of PAYE tax instalments and superannuation benefits. It would appear that the defendant sought to do the same thing with the plaintiff, but it is clear that the plaintiff has been treated by the insurer of the defendant as the defendant's employee and there is no averment made in the defence that has been filed that the plaintiff was not an employee of the defendant. Furthermore, the payment of workers compensation benefits since late 2009 would clearly indicate that the defendant treats the plaintiff as its employee.

17. Although Mr Ali Hammoud was not able to provide the investigator with contact details of his "sub-contractors", one would think that he must have some record of payments made to such persons and their details must be recorded somewhere in writing, if only to establish where payments of invoices or outgoings were to be made. There was no question raised by the defendant's investigator as to the distinction between "Jeromee" and "Doti". However, how Abel Kingi fits into the plaintiff's description of his injury as contained in his statement of 28 October 2009 is also quite unclear, and no investigation was attempted by the defendant's investigator in 2009 to obtain any details of "Quality Carpentry", whether Quality Carpentry Pty Ltd or Quality Carpentry (NSW) Pty Ltd, or details of its employees.

18. In applications under section 151D and in any application under any form of limitation provision, prejudice is a relevant consideration. The identification of eyewitnesses and the ability to track them down is very important. The plaintiff nominated Jessy, Oscar and "Jeromee"/Doti as the three witnesses to his accident. Indeed, according to his statement of 28 October 2009, they were the three men working with him at the time of his injury. No surnames or contact details were given by Mr Ali Hammoud to the defendant's investigator in 2009, but Mr Ali Hammoud may have had a reason for doing so - after all, if he were their employer, he would be vicariously liable for any negligence on their part. His statement that he was unable to provide any surnames or contact details for his three workers may have been self-serving. I do know, however, that the defendant has sought to obtain further information of a factual nature concerning this incident.

17. On 2 June 2014, the plaintiff's solicitor, Mr Rhett Slocombe, wrote to Brooksight Investigations, pointing out that he then anticipated that the plaintiff would seek to make a claim for work injury damages. He asked that a number of inquiries be made. It would appear highly likely to me that the investigator who wrote the Brooksight Investigation report of 5 November 2009 had available to him the worker's claim for compensation made on 19 September 2009. In his letter of 2 June 2004, Mr Slocombe asked the investigators this: "Please interview all necessary and potential witnesses to obtain statements. If the witnesses are no longer employed by the insured, please make independent inquiries to locate witnesses." The report following upon that request is exiguous. The report of Brooksight Investigations of 29 July 2014 merely pointed out that Mr Youssef Khamiss declined to provide any further assistance. No attempt was made by Brooksight Investigations to track down the witnesses to the plaintiff's accident.

18. Mr Slocombe tried again. On 21 January 2016, he sent a further letter of instructions to Brooksight Investigations and one of the specific things he asked the investigator to do was this: "Please secure statements from relevant witnesses and the third parties seeking the above information and any other information which arises during your investigation." After a number of specific requests, there is then a "Nota Bene", and the first thing that is stated is this: "Please interview and obtain a signed statement from ALL relevant persons." I do know from Mr Slocombe's letter of 21 December 2016 addressed to Brooksight Investigations that a factual report was made by Brooksight Investigations on 17 June 2016, but that report has not been exhibited in these proceedings. The letter of instructions from Mr Slocombe to Brooksight Investigations of 21 December 2016 asks that Brooksight Investigations to approach Youssef Khamiss after the Christmas break in order to obtain the information referred to in Mr Slocombe's letter of 21 January 2016. The letter of 21 December 2016 continues thus:    "In the event that Mr Youssef Khamiss maintains his refusal to cooperate, please provide us with an itemised account of all attempts made including the date, person contacting him and details of any communications." Not unsurprisingly, Mr Youssef Khamiss has maintained his lack of cooperation with the defendant's solicitor, and Brooksight Investigations in a report of 20 January 2017 set out details of attempts to communicate with him but details of no attempts to communicate with anyone else. I do not know whether, as a result of Mr Slocombe's letter of instructions of 21 January 2016, Brooksight Investigations managed to interview any of the eyewitnesses to the plaintiff's incident of 9 February 2009. I do not know what is contained in the factual investigation report of Brooksight Investigations for 17 June 2016.

19. Evidence has been adduced from the plaintiff in cross-examination that he himself made attempts to contact Jessy and Oscar and Jeromee/Doti, but that he was unsuccessful in doing so. However, the resources of an insurance company would far outweigh any resource available to Mr Hassan Khamiss. No-one has bothered to put before me details relevant to the two mobile telephone numbers provided by the plaintiff in his claim for compensation of 19 September 2009. I do not know to whom they may have belonged, at what address the owner of those services may have been living, and as to whether the services are still subscribed. In the circumstances, it appears to me to be completely unclear whether Oscar and Jessy and Jeromee/Doti are available or not. The information to obtain their details that is before me is scant and I could not possibly find, on the evidence currently before me, that those potential witnesses are no longer available.

20. Having said that, however, one has to bear in mind that the incident is alleged to have occurred on 9 February 2009, and it is now 21 February 2017, that eight years have elapsed in the meantime, and that the human memory fades with the passage of time, that the human memory is fallible, and that with the passage of eight years, one would not expect witnesses to have a clear recall of the event of 9 February 2009, if any recall. Those are the matters which beset me when I look at the circumstances of the plaintiff's accident.

21. It is unclear whether the two weeks spent probably at the Wolgan Valley Resort near Lithgow occurred between 9 February 2009, when the plaintiff's accident happened, and April 2009 when his services were dispensed with by the defendant. The plaintiff makes it clear that after the incident in question, he was able to continue work. The first full history that I have is one taken by Dr J Brian Stephenson on 28 January 2010, almost a year after the event. That history is this:

"On 09/02/2009, he was taking constructed wooden walls out from the factory to the truck area for transportation. He said usually there were 4-8 men balancing the wall on a trolley. On this occasion, there were about four men involved and he was one of them. He said two of the men were talking and not paying attention, while the trolley got stuck in a concrete groove. He said that the wall sloped to him and he was battling with it to stop it falling and holding it. He felt a little stab in the back with low back pain there, which he noticed continued during the day as he did lifting activities. He said he told his boss, who said it was knots.

Mr Khamiss said he continued at work for several more months and then he was told by the boss that they had gone out of business and he stopped work, last working there on 04/04/2009.

Mr Khamiss then said he questioned whether the firm had gone out of business because his friends were till working there."

The circumstances of his stopping work, as relayed by the plaintiff to Dr Stephenson, are consistent with the plaintiff’s being laid off because the defendant had run out of the work which the plaintiff had been hired to perform rather than the business shutting down. That is, that history is consistent with that which Mr Youssef Khamiss told the investigator on 26 October of 2009. The plaintiff's working on is the important thing to note from that history.

24. As an aside, I should point out that if the plaintiff was only working with three others and that they were employees of AAH Carpentry and Construction, and that two of them were talking and not paying attention, leading to the wheel of the trolley becoming stuck in the groove, then the casual act of negligence of the two employees of AAH Carpentry and Construction could be sheeted home to their employer, and again, reinforces the view I have earlier expressed, that Mr Ali Hammoud may have been acting in self-interest when he said that he no longer had any records of his employees/sub-contractors. Furthermore, I should point out that the "concrete groove" may have been an expansion joint, common in all concreted parking areas, and if it were a common expansion joint, then one could not attribute responsibility for this sort of event, in which the plaintiff was involved, to the occupier of the parking area. Because of a normal incident of a parking area surface, one might be stressing the inadequacy of the trolley or the wheels of the trolley or perhaps stressing the lack of attention of the two co-workers who were talking to each other.

25. I do know that the first doctor that the plaintiff saw was Dr Christopher An of Bankstown. The first medical record before me is a CT scan performed by Dr I Lovett and at the request of Dr Christopher An. The CT scan was performed on 4 April 2009. The brief clinical history at the beginning of the report of the CT scan is, "Left-sided leg referral" which seems to indicate a complaint of left-sided sciatica. The plaintiff, in his affidavit of 27 September 2016, swore that he first saw a general practitioner in Bankstown after the injury and in around April 2009. He then refers to Dr An and the referral for a CT scan. Unfortunately, there is no medical report Dr An to tell me the history that the plaintiff gave to him as to how he came to experience low back pain radiating into his left leg.

26. I do know that on 27 April 2009, the plaintiff came under Dr Nasr Ismail of the Al-Zahraa Medical Centre at Arncliffe. On 16 March 2010, Allianz sent a facsimile to Dr Ismail asking him a number of questions. The first relevant question is this:    "When did the Worker first present to you in regards to the above-mentioned injury? Allianz Australia request that you provide your clinical notes in regards to the claimed injury." The answer made by Dr Ismail to that request was, "on 27 April 2009." The next question was this: "Do you believe that the current presentation is related to the injury on 29/02/2009?" The doctor was asked to answer yes or no, and ticked neither box, and then said this: "Uncertain [-] cannot comment." The inference is that the doctor did not obtain a consistent history of how the plaintiff came to experience low back pain radiating into his left leg. It would appear the plaintiff stayed under the care of Dr Ismail for the rest of 2009, and indeed the plaintiff remains under his care.

27. As I have earlier indicated, the plaintiff saw Dr JB Stephenson on 28 January 2010, and the doctor generated a report on that date. Dr Stephenson had available to him the CT scan for 4 April 2009, made at the request of Dr An. The radiologist, Dr Lovett, reported the CT scan thus:

"There is some generalised disc bulge seen at the L5/S1 levels. This is slightly more posterolaterally on the left, causing some minor displacement of the nerve roots. No other focal disc abnormality demonstrated. The bone and soft tissue dimensions of the vertebral canal and exit neural foramina are within normal limits. No bony destruction or vertebral body crush fracture was seen."

On examination, Dr Stephenson noted that the plaintiff could forward-flex so that his fingers reached his ankle level. The plaintiff could sit on the exanimation couch and forward flex so that his fingers reached his toes. Straight leg raising was performed freely with both lower limbs to 90 degrees. There was no calf or thigh wasting and there was no neurological deficit. After reviewing the radiology, Dr Stephenson expressed this view: "I reviewed the studies and agree with the report, the lateral scan again confirming some mild bulging at L5/S1 level." Dr Stephenson agreed that there was some low lumbar discal pathology which he thought should be managed conservatively. He attributed that low lumbar discal pathology to the event relied upon by the plaintiff on 9 February 2009. Immediately after that examination, Allianz commenced making weekly payments of compensation to the plaintiff.

28. On 4 February 2010, the plaintiff saw Dr Ashish Diwan, an orthopaedic surgeon, at St George Hospital. Dr Diwan is the Chief of the Spine Service of the Department of Orthopaedic Surgery at the St George Hospital campus of the University of New South Wales. Dr Diwan, like Dr Stephenson, found no objective abnormality on clinical examination. However, he expressed the view that the plaintiff had a chronic herniation of the nucleus pulposus of the L5-S1 disc, and perhaps an internal disruption of the L4-5 disc. He thought that the CT scan showed a loss of central concavity of L4-5 disc. He recommended further investigations.

29. An MRI scan of the low back was performed on 21 February 2010 at Dr Diwan's request. That is reported by Dr Hazan thus:

"At L3/4, there is minimal posterior annular bulging and there is a developmentally narrow canal due to developmentally narrow pedicles.

At L4/5, there is mild posterior annular bulging extending slightly more to the left side. There is some subtle narrowing of the proximal left L4 neural exit. There is no distinct nerve root encroachment, no significant canal stenosis. There remain developmentally narrow pedicles which predispose to stenosis. There is also evidence of facetal hypertrophy, though without stenosis.

At L5-S1, there is a left posterolateral protrusion with a contained annular rent. This encroaches on the lateral recess of S1 on the left side and the proximal left L5 neural exit. There is some effacement of the perineural fat around the left S1 nerve root, though it is not displaced. There is also effacement of the perineural fat around the left L5 nerve."

Dr Hazan did not provide any synopsis, but it is clear that there was a tear of the annulus fibrosis of the L5-S1 disc, allowing the nucleus pulposus at that level to extrude and impinge upon the nerve roots.

30. The plaintiff was reviewed by Dr Diwan on 23 February 2010 and he recommend spinal injections. The cost of the first of those was $1,560, plus $430 for a facet block. This caused Allianz to question the necessity for the injections. However, they were eventually carried out. The evidence contains a certificate from the St George Hospital dated 14 June 2010. According to the plaintiff, that certificate follows upon the administration of the first of two injections performed by Dr Diwan. Dr Diwan reviewed the plaintiff of 21 July 2010 and reported thus:

"Hassan overall, has good relief since he first saw me. His primary diagnosis is that of an L5-S1 herniated nucleus pulposus. His predominant pain is now in the lower back and left buttock region, with occasional radiation to the leg. Sitting SLR today was negative.

He has had good relief with two injections and is keen to go back to his occupation as a roof carpenter. Though he has not worked since April 2009, I think it is a very feasible objective and he needs to work towards it. To help him cognitively and physically to obtain a full return to work, I have suggested he work with a therapist at the Special Spinal Rehab. I will have no hesitation in recommending that Hassan start return to work plan in a graduated manner."

31. Despite what Dr Diwan said, the plaintiff had, in fact, had some work in 2010, prior to the spinal injections. The plaintiff obtained work with Mohamed Chahine, who trades as Ozzy Tyres at Rockdale. I know that the plaintiff last worked for Mr Chahine on 17 March 2010. For exactly how long the plaintiff worked there is unclear. The plaintiff, in his statement of 9 February 2015, said that he worked "for a couple of months" for Mr Chahine. Ms Mehta, in her report of 13 September 2013, has this period of work extending for four months, but in 2011. 2011 is clearly inaccurate. It was in early 2010. According to Ms Mehta's report, the plaintiff's duties required him to sit at the front desk, to answer telephone calls, to manage the reception desk and to utilise a work-specific computer program. Other histories indicate that the plaintiff may have been trying to learn how to sell tyres. In an "Earning Capacity Assessment" made by Dr Robin Mitchell and Ms Helen Wallace, dated 10 January 2002, the work that the plaintiff performed with Ozzy Tyres was in February and March 2011 and was for three days per week, paying $300 per week and requiring the plaintiff to answer the phone and to learn how to sell tyres. According to that report, this was the reason the plaintiff stopped performing the work:    "Mr Khamiss stated that he was terminated because he frequently woke up late for work, was told there was no work and they did not want him to work there." There is another reference subsequently to the plaintiff’s being unable to get out of the bed to attend to things such as appointments and medical examinations, and trying to find work, and that may be because he has been prescribed Endone, an opiate-based medication, and according to Dr Stephenson's report of 28 January 2010, he had been placed on Endone at least since 1 December 2009 by Dr Ismail.

32. Before going further, I should comment upon the plaintiff's seeking legal advice about his rights. It is clear that after the incident on 9 February 2009, the plaintiff did not make any formal report of his injury or submit any appropriate documentation. According to the plaintiff's statement of 28 October 2009, he first mentioned the incident to his cousin, his effective employer, only after he had sought medical treatment. The plaintiff's statement of 28 October 2009 is somewhat confusing. He states that after he saw Dr An and was told to obtain an X-ray, but he did not obtain the X-ray results for "six or seven weeks." However, the CT Scan is dated 4 April 2010. The plaintiff then refers to telling Mr Youssef Khamiss of having been referred for the X-ray, but of then having to go to Lithgow for two weeks, which delayed the process. However, if that history be correct, the plaintiff would have worked on for six or seven weeks after having the X-ray performed, which appears to be somewhat at odds with what is actually known. In any event, it is clear that no formal report of the plaintiff's injuries was made at any time prior to his being dismissed by the defendant.

33. According to Mr Youssef Khamiss, he recalled having a conversation with the plaintiff, who advised him that he hurt his back whilst working for him, but the plaintiff told Mr Youssef Khamiss that he did not tell him about it because he was afraid of losing his job. It is clear that it took some time for the plaintiff to lodge a formal claim for workers compensation, and that it was then investigated by Allianz, both by appointing Brooksight Investigations and arranging for the plaintiff to be seen by Dr Stephenson. But after those investigations had been made, payments for compensation were made.

34. The plaintiff did seek assistance from lawyers, at least by 26 February 2010. Before me is a letter from V A Lawyers of 26 February 2010 under the hand of Ms Lisa Amy. V A Lawyers of Kogarah eventually were incorporated into a firm known as One Group Legal, which practised from same premises at Kogarah. The letter from V A Lawyers to Allianz of 26 February 2010 clearly concerns a claim for workers compensation. In essence, the letter requests all the information then available to the insurer. The plaintiff, in his affidavit, said that he initially had contact with Lisa Amy, and then later with Mr Norman Ayoub. Essentially, they were advising him about his workers compensation rights. In paragraphs commencing at [9] of his affidavit, the plaintiff said this:

"I recall discussing with Amy and Norman of One Group Legal, making a claim for workers compensation. At no stage do I recall discussing with Amy or Norman making a claim for work injury damages at common law.

I had no independent knowledge that I could not make a claim for work injury damages at common law.

At no stage do I recall being informed that there was a limitation period of three years in relation to any claim that I might commence."

The plaintiff, who was cross-examined by Mr Flett, was not challenged about any of those matters at all.

35. Before turning to that issue, I had discussed the recommendations of Dr Diwan contained in his report of 21 July 2010. The evidence before me is completely silent as to what happened over the next year. The next document before me is a report of Dr Diwan of 11 August 2011. Dr Diwan's report of 11 August 2011 is addressed to Dr Ismail and copied to Allianz. The doctor records that the plaintiff continued to be disabled and off work. He complained of continuing low back pain radiating into the left leg about three times each week. There was also a complaint of occasional right leg pain. Nevertheless, straight leg raising was normal and there was no sensory or motor deficit. Dr Diwan went on to express this plan:

"I think Hassan has suffered for a very long duration of time and continues to be out of work. His best chance of getting rid of his pain appears to be the surgery. He will require decompression and fusion at the L5-S1. However, prior to advising him exactly what will help him, I have suggested he get a new MRI scan and an X-ray performed. I have referred him for the same. I will review him along with those investigations."

Dr Diwan provided an X-ray request to, it appears to be, Dr Kuan at the St George Hospital, on 11 August 2011, the same day that he wrote the report. However, that X-ray does not appear to be have been performed. Why, I do not know. An MRI scan was performed on 2 November 2011 by Dr Peter Kitchener at the request of Dr Ismail. Dr Kitchener reports the MRI scan as showing disc bulging at L5-S1. Nothing had changed since the early investigations of 2010.

36. It appears, however, that Allianz had decided to take some action. They arranged for the plaintiff to be assessed on both 8 September 2011 and 6 December 2011 by Dr Mitchell and Ms Wallace. Ms Wallace is a forensic psychologist. Their report, like many such reports, is lengthy. It comprises 27 pages when one includes the appendices. It merely tells me that the plaintiff was fit to work as a sales assistant, as a product assembler and as a packer. There is reference in the report to the plaintiff's psychological function. According to Dr Mitchell and Ms Wallace, the plaintiff did not report any significant psychological factors or issues, and therefore, none needed to be taken into account in assessing the plaintiff's fitness for alternative work. Dr Mitchell and Ms Wallace thought that he was fit to perform work for 40 hours per week. Perhaps they haven't caught up with the fact that most jobs these days are for 38 hours per week.

37. On 25 January 2012, the plaintiff was reviewed by Dr Diwan. He recommended posterior spinal decompression and fusion at the L5-S1 level - in other words, the usual laminectomy and fusion. The doctor provided details of the cost of this treatment. However, on 6 March 2012, Allianz declined liability to pay for the operative treatment proposed by Dr Diwan. In the interim, there were some developments. Prior to seeing Dr Diwan on 25 January 2012, the plaintiff was involved in an incident on 3 January. This is recorded by Dr Stephenson in his report of 29 March 2012. The history recorded is this:

"At Brighton Beach on 03/01/2012, he intervened to stop a fight between a jealous man, who had accused Hassan Khamiss's identical twin brother of looking at his girlfriend. Hassan said he put up his right leg as he intervened, and the man lacerated it with a knife. He was managed at St George Hospital. On examination, there is a 15-centimetre long transverse anterior and medial distal tibial scar situated 12 centimetres proximal to the medial malleolus. There was slight oedema distal to the scar and he [had] been wearing a double thickness, tubi-gauze stocking over it. Calf muscle wasting resulted and Hassan said it was more than it is now, but there is still two centimetres reduced circumference right calf due to that injury. Circumference right mid-calf 38 cm, circumference mid-left calf, 48 cm."

This incident caused, if my recollection serves me correctly from another history, the plaintiff to be in a hospital for five days and he was off his feet for the best part of a number of months. It is clear that Allianz suspected that the incident of 3 January 2012 may have caused the plaintiff's back problems to increase or deteriorate, but there is no evidence to support any such proposition. I do know that on 10 February 2012, the plaintiff had a right leg venous doppler study following upon what is referred to as a recent repair of his tendo Achilles. There was some superficial thrombophlebitis over the lower calf of the right leg.

38. This incident is a red herring, but appears to have been something which motivated Allianz to decline liability. Although Allianz declined liability, on 6 March 2012, on 13 March 2012, a response was made on behalf of Dr Diwan to an earlier communication from Allianz of 15 February 2012. The questions which Allianz had posed of Dr Diwan were these:

• "Please advise why spinal fusion is reasonable and necessary in Hassan Khamiss's case;

• Why is discectomy not appropriate in this case;

• Is the requirement for surgery related to a non-work-related accident in December 2011 [sic, scil. 3 January 2012]? Why or why not?"

The response made on behalf of Dr Diwan to those questions is this:

"This surgery has been recommended as the most appropriate for this client due to longevity of symptoms and chronicity of pain to be addressed. While there are no noted nerve compression signs, fusion is the optimal treatment for his spine, so as to address the aetiology of pain caused over time, with the herniation of nucleus pulposus and thus disc disruption and degeneration due to chronicity of his long-time injury, and the resultant disc and facetal issues that have developed. This cannot be adequately addressed by way of Microdiscectomy only, as Microdiscectomy is surgery to address radiculopathy, for which there is no indications for this client. The fusion would ensure disc height (vertical space) is maintained and stabilised at the problem area/s so as to address the pain that has been and continues to be generated at these levels at these areas since injury in 2009. Current and previous reports are attached for your reference to longevity of this issue for Mr Khamiss. The issues to be addressed by surgery are those present since 2009 and noted in consultation reports and MRIs done over this length of time".

One will note that there is no specific reference to the event 3 January 2012 in that advice.

39. The plaintiff was reviewed by Dr Stephenson on 23 March 2012, and Dr Stephenson prepared a report dated 29 March 2012. Dr Stephenson thought that surgical intervention was a relevant option. He thought that merely a discectomy, the removal of the disc, was not appropriate and there should be some stabilisation following a discectomy. The usual way of stabilising the spine after discectomy is, of course to carry out a fusion. Dr Stephenson expressed a view that the plaintiff had obtained advice about surgical treatment of his spinal condition, and that he realised the significance of that advice and was considering it. Dr Stephenson went on to express the view that the plaintiff had a 7% whole person impairment (WPI) as a result of the damage to his lumbar disc.

40. Despite the fact that the insurer of the defendant had denied liability for the surgery proposed by Dr Diwan, Dr Diwan's rooms continued to proceed with Dr Diwan's plans. They planned for the surgery to be performed on 25 July 2010 and for that purpose, the plaintiff attended a pre-operative consultation on 23 May 2012. This was essentially done to advise him of all that was involved. However, surgery was not practiced on 25 July 2012. On 7 June 2012, the plaintiff was referred by Dr Ismail to Dr Geoffrey Rosenberg, another orthopaedic surgeon practicing at St George Hospital. It appears that the plaintiff wanted a second opinion, as he was perfectly entitled to do, and was sent by Dr Ismail to Dr Rosenberg. The plaintiff saw Dr Rosenberg on 15 June 2012.

41. Dr Rosenberg noted the plaintiff had been seen by another orthopaedic surgeon who had made injections into his spine, but they were of no benefit to him. The jist of Dr Rosenberg's advice was this,

"Certainly, he is quite consistent and his story is suggestive of an unstable lumbrosacral disc. If symptoms are unmanageable, surgery could upgrade the situation. Appropriate surgery is lumbosacral discectomy and fusion. My favoured approach will be to do this anteriorly. His life seems to have been on hold for three years, he is treading water. He has been advised not to return to work, but he himself wants to and feels he can. I see there is no harm in attempting a return to work, as long as he listens to his back and adopts a common sense approach".

Dr Rosenberg left it up to the plaintiff to decide what he wished to do. The plaintiff saw Dr Rosenberg again on 16 August 2012. At that time, the plaintiff told the doctor his left leg pain had settled. There was, again, discussion of proposed surgery involving an anterior interbody fusion. One could understand the plaintiff’s being concerned about undergoing such a procedure at a very young age.

42. In January 2012, the plaintiff had met his cousin, Ms Mariam Droubi, whilst he was visiting his mother. Ms Droubi was a secretary at the firm of Drexlers Litigation Lawyers. She told the plaintiff if he required assistance with his worker's compensation matter, she could put him in touch with a solicitor who worked at that firm. In his affidavit, the plaintiff said at [13] that his relationship with Mr Ayoub had begun to deteriorate and he did not like the way that Mr Ayoub treated him. He said that in September 2012, he decided to change solicitors. He contacted his cousin, Mariam, and she put him in touch with Mr Hamad Zreika at Drexler Litigation Lawyers. According to Mr Zreika's affidavit, he saw the plaintiff on 21 September, 2012. The plaintiff instructed Mr Zreika to take over the running of his case. At that time Mr Zreika informed the plaintiff that he could make both a claim for workers' compensation and a claim for work injury damages at common law. I assume that by reference to "making a claim for workers' compensation," what was meant was a claim for lump sum workers' compensation, as, as I understand it, the plaintiff was then still in receipt of weekly payments of workers' compensation. At that time the plaintiff was also advised by Mr Zreika that there was a three year limitation period for the bringing of an action at common law for work injury damages, but at that time the limitation period had expired. It had clearly expired on 9 February 2012, well before the plaintiff saw Mr Zreika. However, the plaintiff was not able to bring a common law action at the time he saw Mr Zreika because there had been no finding or agreement between the plaintiff and the defendant that the plaintiff had at least a 20% WPI, the statutory threshold under the workers' compensation legislation for bringing an action for work injury damages. Furthermore, the same legislation requires that the plaintiff obtain his entitlements under ss 66 and 67 before he can prosecute his claim for work injury damages.

43. The plaintiff was reviewed by Dr Rosenberg on 14 November 2012. Dr Rosenberg noted the plaintiff was significantly hampered with back pain and pain his groin and occasionally in, probably, his left leg. The plaintiff told Dr Rosenberg that he felt that his life was on hold. He had been receiving physiotherapy for two years but had gained no improvement. The plaintiff told Dr Rosenberg that he had been, in essence, unable to work for the best part of three years. Dr Rosenberg expressed the view that it was reasonable that the plaintiff contemplate surgery and that he was "an ideal candidate" for anterior lumbosacral interbody fusion.

44. Chronologically the next document before me is a "labour market information report" dated 11 December 2012 requested by Allianz. However, that only gave upgraded the earnings for the three jobs for which the plaintiff had been found suitable by Dr Mitchell and Ms Wallace in their report of 10 January 2012.

45. On 8 February 2013 at St George Private Hospital, the plaintiff underwent anterior interbody fusion at the lumbosacral junction. The surgery was described thus by Dr Rosenberg,

"The patient was positioned supine. Through a midline incision and a rectus split, a retroperitoneal approach from the left side was performed to expose the anterior lumbar spine. Level was checked with an X-ray and a Synframe retractor and blades were then placed.

The disc was exposed, it was excised in a piecemeal manner. The endplates were prepared, the disc dilated. An ALIF was performed employing a Globus cage with three screws. Within the cage, I Factor was placed as a bone graft substitute. X-ray revealed satisfactory position of the implant. Gel foam was placed over the front of it.

The joint was lavaged, local infiltrate applied to the wound, closure was routine in layers."

X-ray performed that day and on subsequent occasions shows an anterior fixation plate and screws at the L5-S1 level. As I understand it that "hardware" remains in place. The plaintiff was reviewed by Dr Rosenberg on 20 March when he complained of some residual numbness in his groin, although, according to Dr Rosenberg, that was "diminishing daily." Dr Rosenberg also reviewed the plaintiff on 17 May 2013, three months after surgery. According to the Dr Rosenberg the plaintiff had no groin pain at that time but was still feeling uncomfortable, but different to the way he had felt prior to surgery. The plaintiff was swimming and walking regularly. The plaintiff was trying to wean himself off his medication. By 17 May, the plaintiff's wound was well healed. Dr Rosenberg expressed the view that as far as he knew, the plaintiff felt better than he had prior to surgery.

46. However, the plaintiff went back to see Dr Rosenberg on 11 July 2013. He reported, "several episodes of bed wetting at night, most recently one and a half weeks previously". Dr Rosenberg had no ready explanation for the plaintiff's urinary problems, but noted that they did tend to go hand in hand with back problems, and he thought that if they continued, the plaintiff should be seen by a urologist.

47. In the meantime, the plaintiff had been seeking legal assistance. On 7 May 2013, he attended a conference with Mr Baran of counsel, arranged by Mr Zreika. Since Mr Zreika had been retained on 21 September 2012, he had been trying to obtain the file of the former solicitor. If I may say so, the former solicitor was very tardy in providing the plaintiff's file to Mr Zreika. Paragraphs [6] to [25] of Mr Zreika's affidavit are primarily concerned at his attempts to obtain the earlier file. Eventually the file was obtained on 24 July 2013.

48. On 2 September 2013 the plaintiff was assessed by Ms Abhi Mehta, a "Workplace Rehabilitation Consultant" who prepared a report bearing date 13 September 2013; I have already commented about that report. The purpose of it was to identify suitable employment and the plaintiff's capacity to earn in accordance with s 32A of the Worker's Compensation Act 1987. Essentially this was an assessment as to how much the plaintiff might recover in weekly payments of worker's compensation. Ms Mehta thought the plaintiff was fit for work as a sales representation, as a customer service representative and as a real estate agent. At the time that she interviewed the plaintiff, he was still prescribed and taking Endone. Dr Ismail at the time was still certifying the plaintiff as totally incapacitated for work. Dr Ismail advised Ms Mehta that the plaintiff had severe anxiety and major depression. The plaintiff himself told Ms Mehta that his sleep was disturbed, and that accordingly he needed to sometimes sleep during the day. Ms Mehta recommended that Allianz give approval for the plaintiff to be seen by a psychologist as advised by Dr Ismail.

49. On 14 October 2013, the plaintiff saw Dr Noel Dan, a well-respected neurosurgeon. Dr Dan noted the plaintiff was suffering some severe depression and was being treated for it by that time. Dr Dan thought the plaintiff was fit for some light semi-sedentary activities which allowed him to move around from time to time and did not involve lifting, bending or carrying. He agreed the plaintiff was totally unfit for any work, as a result of the spinal surgery, for six months following it - that is, roughly until the commencement of August 2013. Dr Dan thought if the plaintiff could return to work, it should be initially on limited hours and on alternate days of the week until the plaintiff got used to the regime.

50. The primary purpose of Mr Zreika's qualifying Dr Dan was for Dan to assess the plaintiff's WPI. He assessed it at 22% having added to a basic 20% a further 2% impairment because of the plaintiff's requirement for assistance in caring for home care. Dr Dan's report bears date 17 October 2013. It is not clear when that was received by Mr Zreika. Since the examination was on the tenth and the report is dated the 17th, one would expect the report to have been made on 17 October 2013. Some medical practitioners always date their reports the date of the examination but often there can be months between the report's date and its actually being issued. Unfortunately, I do not know when Mr Zreika received Dr Dan's report of 17 October 2013. Clearly, a 22% WPI, if accepted by the defendant, would permit the plaintiff to pass the statutory threshold to enable him to bring a claim for work injury damages. What the plaintiff needed, following upon Dr Dan's assessment, was the agreement of the defendant that he had at least a 20% WPI or if that could not be agreed, it would need to be found by an appropriate body, whether it be by an approved medical specialist or some other entity.

LUNCHEON ADJOURNMENT

51. Before the luncheon adjournment I mentioned that I do not know when the plaintiff's solicitor received Dr Dan's report of 17 October 2013. The plaintiff's solicitor's affidavit continues thus:

"36. On 21 November 2013, I forwarded Dr Dan's medical report to David Baran of counsel in preparation for a conference with David Baran, the Plaintiff and myself as to how this matter should move forward.

37. On 16 December 2013, I sent a letter to Youssef Khamiss, the owner of the defendant and the plaintiff's former boss, making a formal claim for $37,537.50 for WPI pursuant to s 66 of the Workers Compensation Act 1987 (NSW) and $35,000 for pain and suffering pursuant to s 67 of the Workers Compensation Act 1987 (NSW).

38. On 18 December 2013, I sent a letter to Michelle Simonovski of Allianz, the workers compensation insurer of the plaintiff's former employer, making a formal claim for $37,537.50 for WPI pursuant to s 66 of the Workers Compensation Act 1987 (NSW) and $35,000 for pain and suffering pursuant to s 67 of the Workers Compensation Act 1987 (NSW).

39. On 2 January 2014, Claire Russell, a legal specialist at Allianz, responded to my letter of 18 December 2013. She proposed the plaintiff be examined by their own medical expert, Dr Robert Drummond, on 18 February 2014."

52. In between the making of the claims under ss 66 and 67 of the Workers Compensation Act and Mr Zreika’s telephone attendance upon Ms Russell, the plaintiff was seen by Ms Mehta who obtained a history from the plaintiff that he was depressed and that the injury had affected his physical health, because of a loss of strength in his muscles. Ms Mehta noted that the plaintiff was seeing a psychologist, to whom she refers as Dr Kassem, to whom the plaintiff had been referred by Dr Ismail. The plaintiff also told Ms Mehta that he had been referred by Dr Ismail to a psychiatrist, Dr Ashraf Ali. The evidence does not contain any reports from Dr Kassem or Dr Ali. The substance of Ms Mehta's report was to advise what was happening as far as the plaintiff's seeking suitable employment was concerned.

53. The plaintiff was seen by Dr Robert Drummond on 18 February 2014. Dr Drummond's report bears the same date. The plaintiff described to Dr Drummond what Dr Drummond considered to be both anxiety and depression which had been present for the past 18 months. The plaintiff told Dr Drummond that he was still taking Endone. The only difference between Dr Dan's assessment and Dr Drummond's assessment was a difference of 2%. He said this: "My opinion differs only that Dr Noel Dan on 17 October 2013 allocated a 2% impairment for [activities of daily living]. I do not agree with that addition." He accepted, therefore, the plaintiff had WPI of 20%. In a supplementary opinion of 15 April 2014, Dr Drummond expressed the view the plaintiff was fit for working a normal working week, that is 38 hours a week, as either a sales representative, a customer service representative or a real estate agent.

54. A remaining question, of course, is whether Allianz would accept the assessment made by Dr Drummond of WPI of 20%. Concerning that, Mr Zreika's affidavit says this:

"40. On 21 March 2014, Clare Russell…responded to my letter of 18 December 2013. She informed me that Dr Robert Drummond had assessed the plaintiff's WPI at 20%. She offered a sum of $31,762.50 by way of compensation for WPI pursuant to s 66…and $10,000 for pain and suffering pursuant to s 67…

51. Where an extension of time is sought to extend time to bring proceedings pursuant to s 151D(2), "it is for the person seeking to be freed from the constraint imposed by the limitation statute to show that the relevant delay is not likely to make the proceedings unfair or to cause real prejudice to the proposed defendant, that is, the person having the benefit of the time bar": Gallagher Bassett Services NSW Pty Limited v Murdock [2013] NSWCA 386; (2013) 86 NSWLR 13 (at [26]) per Barrett JA (Gleeson and Leeming JJA agreeing); see also Brisbane South (at 550) per Toohey and Gummow JJ; Sea Coatings (Australia) Pty Limited v Pascoe [2008] NSWCA 54 (at [27]) per Handley AJA (Hodgson and Tobias JJA agreeing) ("Sea Coatings").

52. Factors contributing to the justice of this case included the respondent's concession that the appellant had a prima facie case on liability. It would be otherwise if she had had a weak case, as "the apparent weakness of the plaintiff's case is a factor which militates against an extension of time": Commonwealth of Australia v Shaw [2006] NSWCA 209; 66 NSWLR 325 (at [40], [83]) per Basten JA (Handley and Ipp JJA agreeing), referred to with approval in Sea Coatings (at [51]).

Adequacy of the explanation

53. The primary judge did not accept that the appellant could rely upon evidence from her solicitor explaining why she contacted her solicitor when she did. She did not say why, even though she recorded that Mr Moran had not been required for cross-examination.

54. An applicant for relief pursuant to s 151D(2) should ordinarily lead evidence "appropriate to give the Court a satisfactory understanding of why it was that proceedings were not commenced in time.": ASB-Tech Services Pty Ltd (In Liq) v Doeland [2003] NSWCA 167 ("Doeland") (at [30]) per Hodgson JA (Handley JA and Cripps AJA agreeing).

55. However, the statement in Doeland does not mean the applicant must personally give such evidence. As the appellant submits, Mr Moran's evidence was admissible pursuant to s 75 of the Evidence Act. Accordingly the hearsay rule did not apply, and the appellant's statements recited by Mr Moran were admissible "to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation": see s 59(1), Evidence Act. Provided the relevant requirements of the legislation were satisfied by the evidence, the source of that evidence was irrelevant so long as it was otherwise admissible on an interlocutory application of the kind in question: Richard Crookes Constructions Pty Ltd v Kozul [2005] NSWCA 312 ("Kozul") (at [21]) per Tobias JA (with whom Young CJ in Eq and Hunt AJA agreed) explaining Doeland; see also (at [41]) per Young CJ in Eq. Kozul concerned an application for an extension of time pursuant to s 60C(2) Limitation Act 1969 (NSW), however in my view their Honours' observations have equal application in the present context. Further, the fact that the evidence was hearsay did not permit "the primary judge to do other than address it on its terms as reasonably understood": Brierley v Ellis [2014] NSWCA 230; (2014) 67 MVR 282 (at [28]) per Meagher JA (Basten and Gleeson JJA agreeing).

56. While appearing to reject the explanation proffered through Mr Moran, the primary judge nevertheless appeared to criticise it on the basis that there was no explanation why the appellant did not consult a solicitor prior to September 2010. She also rejected it because she was "not persuaded that the level of her symptoms over that period is sufficient". That bald statement does not demonstrate any reasoned analysis of the explanation.

57. There was nothing inherently incredible in the appellant's explanation of the deterioration in her condition which led her to consult a surgeon. It was supported by the medical evidence to which Mr Moran referred. It may be that there was a report which was open to the interpretation that the appellant had suffered ongoing pain over three years prior to 2010. However the nub of the appellant's explanation was that she had managed to continue to work despite pain (for which she had medicated) and it was not until 2010 that there was a sharp deterioration leading to the advice to submit to surgery as the appellant in due course did. The primary judge failed to give that evidence any proper consideration and, in this respect, in my view fell into error.

58. Further, the primary judge failed to take into account Ipp JA's statement in Itek Graphix (at [88]) that a failure to give a satisfactory explanation will often not be decisive and that ordinarily the issue of prejudice will be paramount. As Hodgson JA explained in Doeland (at [34]), the question of an explanation is not a discrete one. Rather:

"[36] ... the test to be applied is whether it is fair and just that an extension be granted, and the strength of the explanation and the degree of presumptive and actual prejudice are matters to be taken into account, together, in coming to a conclusion on this question. Where the prejudice is such that a fair trial is unlikely, it will as a general rule not be fair and just to grant the extension. However, where there is prejudice falling short of this, that prejudice will still weigh in the assessment, and is a matter to be considered along with the adequacy of the explanation in making the ultimate determination."”   

66. That judgment, and the judgments of my colleagues to which I have referred, should be read in conjunction with what fell from the High Court of Australia in Prince Alfred College Incorporated v ADC [2016] HCA 37. The Prince Alfred College case is a very different case to the one currently before me and to most claims for work injury damages. However, the plurality (French CJ, Keifel, Bell, Keane and Nettle JJ) did not limit what they said about Brisbane South Regional Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 to cases of the type that was dealt with in the Prince Alfred College case. Their Honours said this:

"99. In considering the exercise of the discretion under s 48(3) of the Limitations Act, two fundamental propositions established by this Court's decision in Brisbane South Regional Health Authority v Taylor must be borne in mind. First, an applicant for an extension of time must prove the facts which enliven the discretion to grant the extension and also show good reason for exercising the discretion in his or her favour. An extension of time is not a presumptive entitlement which arises upon satisfaction of the pre-conditions that enliven the discretion. The onus of persuasion is upon the applicant for an extension of time. The exercise of the discretion to grant an extension of time must take account of the reasons for the limitation regime, and the discretionary nature of the decision to be made must be respected when conducting appellate review of a primary judge's decision. In Brisbane South Regional Health Authority v Taylor, McHugh J said:

"The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates'."

100. Secondly, the purpose of the legislative conferral of the discretion is to ensure a fair trial on the merits of the case. The loss of evidence which will tend against the prospects of a fair trial will usually be a fatal deficit in an argument that good reason has been shown to exercise the discretion to grant an extension. As McHugh J pointed out in Brisbane South Regional Health Authority v Taylor, the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of the delay, is unable fairly to defend itself or is otherwise prejudiced. His Honour had earlier observed that, in cases of long delay, prejudice may exist without the parties or anyone else realising that it exists." (References omitted)

67. If I may be permitted to approach the matter in accordance with what fell from the High Court of Australia in the Prince Alfred College case. The plurality pointed out that the applicant for an extension of time must prove facts which enliven the discretion to grant the extension and show good reason for exercising the discretion in his favour. Here, the plaintiff has an arguable cause of action. Although the defendant has pleaded that the plaintiff was guilty of contributory negligence, I find it difficult to see on the facts alleged that the plaintiff was guilty of any such negligence, but, of course, one is completely in the plaintiff's hands in that regard and will remain in the plaintiff's hands until he has been cross-examined at a hearing, if such is to occur. The other thing about the plaintiff's case is that he has sustained a very serious injury at a very young age and the quantum of his damages might be particularly large. I wholly realise that claims for work injury damages in this State are limited to the recovery of economic loss. However, at the time of the accident, the plaintiff was only 22 years old and, as I have already stated, he is now 30 years old. The extent of his economic loss, bearing in mind his background, education, lack of training and his age, could be huge.

68. The next thing to note is that the plaintiff could not bring an action for work injury damages until after the limitation period had expired, until after 19 May 2014. By that time five years had already elapsed. By that time, poorly trained human memories may have been dimmed, but that is the inevitable consequence of the statutory scheme rather than the inevitable consequence of the plaintiff's delay. The delay was forced upon the plaintiff by the statutory scheme. As was pointed out in the High Court, the purpose of the legislative conferral of a discretion is to ensure that there is a fair trial on the merits of the case. A fair trial does not mean an ideal trial. What the case law requires me to find is whether there is any significant prejudice and significant prejudice is prejudice that would make chances of a fair trial unlikely.

69. What significant prejudice can be pointed to? The first consideration is the scene of the accident. Surprisingly, the accident scene has not been visited by anybody, as far as I am aware. In particular, it was not visited by Mr Adams as one would normally expect. At the commencement of the report dated 7 September 2015, Mr Adams said this:

"This is report is prepared following a conference with Mr Khamiss, held in my Bulli premises on 14 April, 2015. I have not seen the specific wall panels or work situation associated with Mr Khamiss's development of injury and culminating injury occurrence. For the purposes of this report, I have accepted his detailed descriptions of the task, timber frames and panels and activities with which he was engaged. I have previously made inspections in a variety of building frame fabrication factories and have some familiarity with the kinds of tasks associated with Mr Khamiss's injury occurrence (or, more correctly, development of injury)."

Dr Adams then goes on to set out what was provided to him by the plaintiff's solicitor. I do not know whether the factory premises at which the plaintiff's accident occurred on 9 February 2009 at 6 Centenary Avenue, Moorebank are exactly the same now as they then were. No-one has pointed to any prejudice arising from the passage of time as far as identifying the place where the injury occurred and, for example, the groove in the cement of the parking area or driveway where the wheel of the trolley/skateboard became stuck.

70. I have already commented at some length upon the discrepancies concerning who the witnesses might be and whether they are currently available or not. It would appear that the plaintiff and Mr Abel Kingi are available and will give evidence in the plaintiff's case. As I have said, I am not persuaded that the witnesses referred to as Oscar, Jesse and Jeromee/Doti are not available. Although the legal onus of proof in these proceedings remains upon the plaintiff, the evidentiary onus can pass to the defendant. Here the evidentiary onus does pass because the defendant has not put before me the report of Brooksight Investigations of 17 June 2016. Furthermore, it appears to me to be unlikely that any of those witnesses may be of any utility to the defendant. One of the contemporaneous histories, or near contemporaneous histories, given by the plaintiff is that one other of the workers was injured at the same time that he was. A more fruitful avenue for investigation by the defendant may be histories given to Dr An and Dr Ismail but there is no suggestion that those histories could not be obtained by serving subpoenas for production upon the medical practitioners concerned. I am not persuaded on the balance of probabilities that there is any significant prejudice which would make the chance of a fair trial unlikely.

71. The walls which were being constructed to be erected at the Wolgan Valley Resort would no doubt be the subject of plans and the like drawn by architects or builders which could easily be found by way of the service of subpoenas. Their weights could be easily ascertained by any expert, indeed, by any carpenter or builder who made a replica of the type of walls that were being constructed by the plaintiff. Furthermore, the type of trolley/skateboard that is referred to as the item on which the prefabricated walls were being moved could easily be reproduced by the plaintiff himself by pointing out the size of the item, its construction, material, and the type of wheels which were attached to whatever it was that was the "trolley".

72. True it is that there has been, in my view, a lack of expedition by the plaintiff's solicitor in pressing on with the plaintiff's claim after his telephone discussion with Ms Claire Russell on 21 March 2014. But such lack of expedition is, unfortunately, frequently encountered and has not been the subject of any adverse criticism, nor the subject of any evidence to suggest that the delay was so extraordinary that it is beyond good professional practice. As I said, some of the delay can be explained by taking a very prudent course, for example, qualifying Dr Canaris, then qualifying Mr Adams and arranging for his report to be in a satisfactory state for the purpose of presentation to the Court. However, bearing in mind the time between 19 May 2015 and the commencement of these proceedings, bearing in mind that in some of that period time was not running, and bearing in mind that if there were any prejudice to the defendant, the prejudice probably occurred in the period before the plaintiff was entitled to bring a claim for workplace injury damages, I am persuaded that the plaintiff has established grounds for the extension of the limitation period.

73. For those reasons, I grant leave to the plaintiff to commence proceedings in respect of the cause of action alleged on 9 February 2009 on 18 March 2016.

(SUBMISSIONS RE COSTS)

74. HIS HONOUR: The costs of this application, being the costs of the notice of motion filed on 8 September 2016, are to be costs in the cause. I confirm the hearing date of 15 May 2017.

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Decision last updated: 17 March 2017