Lieng v Coles Group Supply Chain Pty Ltd

[2023] NSWDC 550

District Court

New South Wales

Medium Neutral Citation:

Lieng v Coles Group Supply Chain Pty Ltd [2023] NSWDC 550

Hearing dates:

6 October 2023

Date of orders:

11 December 2023

Decision date:

11 December 2023

Jurisdiction:

Civil

Before:

Waugh SC DCJ

Decision:

(1) Pursuant to s151D of the Workers Compensation Act, 1987, grant leave to the plaintiff nunc pro tunc to commence these proceedings

(2) The costs of the application be costs in the cause

(3) The exhibits may be returned

Catchwords:

NEGLIGENCE –Workers Compensation Act 1987 (NSW), s151D – three year time limit after date of injury - leave to commence proceedings out of time

Legislation Cited:

Workers Compensation Act 1987

Work Injury Management Act 1998

Workplace Injury Management and Workers Compensation Act 1998

Cases Cited:

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

Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207

Whisprun Pty Ltd the Sams [2002] NSWCA 167

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Bobby Lieng (Plaintiff)
Coles Group Supply Chain Pty Ltd (Defendant)

Representation:

Counsel:
Mr D Morgan (Plaintiff)
Mr I Todd (Defendant)

Solicitors:
Garling & Co Lawyers (Plaintiff)
Turks Legal (Defendant)

File Number(s):

2023/43590

Publication restriction:

Nil

Judgment

1. This is an application under section 151D of the Workers Compensation Act 1987 for leave to commence proceedings for work injury damages more than 3 years after the date on which the plaintiff received his injury.

2. The plaintiff was employed as a picker and packer working at the defendant’s distribution centre at Smeaton Grange (a suburb of Sydney) when, on 24 August 2017, he suffered an injury which, it is common ground, has resulted in a 23% whole-person impairment.

3. He commenced these proceedings by filing a statement of claim on 9 February 2023. Whilst this was more than five years after the date he received his injury, there were periods during that time when time did not run for the purposes of calculating the 3-year period under section 151D because of s.151DA. Counsel for the plaintiff, Mr Morgan, provided me with a document setting out 3 separate periods during which he submitted time did not run. As I understand it, the defendant did not cavil with those calculations. According to the plaintiff’s submissions time did not run for a total of 202 days. Counsel for the defendant, Mr Todd, submitted that the period of delay was one year, 9 months and 4 days. As I understand it, the plaintiff did not cavil with that. I therefore proceed on the basis that the period of delay, after allowing for the periods when time did not run, was as submitted by the defendant.

Legal principles

4. Notwithstanding that the 3-year period, after allowing for periods when time did not run, had expired before the plaintiff commenced these proceedings, the court may grant leave under section 151D nunc pro tunc, that is to say, now for then, or retrospectively, to the time the proceedings were actually commenced (:Whisprun Pty Ltd the Sams [2002] NSWCA 167).

5. The general principles which should guide a court when considering an application for leave under section 151D were considered by the Court of Appeal in Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207, [2002] NSWCA 207 and were summarised in Howley v Principal Healthcare Finance Pty Ltd [2014] NSWCA 447 by McColl JA (Meagher and Barrett JJA agreeing) at [43] – [52].

My conclusion

6. I am satisfied on the evidence before me that it is fair and just, or, putting the same thing in different words, that the justice of the case requires, that the court grant the plaintiff leave. I will explain why I have come to that view.

The nature of the evidence before me

7. The evidence before me consisted of an affidavit affirmed by the plaintiff, 2 affidavits affirmed by the solicitor for the plaintiff and an affidavit sworn by the solicitor for the defendant. The exhibits to the affidavits of the plaintiff’s solicitor included 6 lever arch folders of documents, the bulk of which included copies of the plaintiff’s pre-filing statement (required to be served under section 315 of the Work Injury Management Act, 1998) and the defendant’s pre-filing defence.

The statement of claim and defence

8. The defendant has filed a defence to the statement of claim.

9. The plaintiff has pleaded that his employment duties required him, at the direction of the defendant, to engage in manual handling of various stock items and to work to targets at a certain place. The plaintiff has pleaded that his duties required him to engage in heavy, repetitive and fast paced lifting, carrying and handling stock items.

10. The defendant admits that the plaintiff’s duties included manual handling of stock items and that he was required to complete his duties in accordance with the defendant’s pick rates.

11. The plaintiff pleads that the nature and scope of the duty of care owed by the defendant included devising, implementing and enforcing a safe system of work and providing proper and sufficient equipment for that purpose. The plaintiff also pleads amongst other things that the defendant had a duty to provide suitable and adequate information, training and instruction. The defendant “disputes” these matters in its defence. Further, it alleges that the plaintiff was guilty of contributory negligence.

12. The “work injury” the plaintiff pleads that has caused him loss and damage and that was caused by breach of duty of care of the defendant is set out in paragraph 12 of the statement of claim as follows:

On or about 24 August 2017 the plaintiff was performing his employment duties requiring manual handling, lifting and carrying and attendant postures during which he suffered injury resulting in a level of impairment assessed pursuant to the Workers Compensation Act of 23% WPI.

13. In response, the defendant has pleaded that it does not admit these allegations, but does admit that on or about 24 August 2017, the plaintiff sustained an injury in respect of which he has been compensated for 23% WPI.

14. WPI is of course a reference to whole person impairment.

15. In his statement of particulars filed with the statement of claim, the plaintiff says that he received injuries to his lumbar spine and psychological injuries which have resulted in continuing disabilities of pain and restriction in his lumbar spine, radiation of pain from his lumbar spine into his lower limbs, aggravation of pain in his lumbar spine on bending, prolonged sitting, prolonged standing, prolonged walking and with heavy lifting. He includes amongst his disabilities, difficulty driving and lifting, an inability to participate in pre-accident recreational activities, insomnia, depression, anxiousness, social withdrawal, breakdown of relation relationship, loss of concentration and self esteem, low mood and motivation. He claims loss of income on the basis that he has been unable to work since the injury and that his loss of earning capacity is such that due to his ongoing injuries and disabilities, he is totally unfit to work and has no realistic capacity for work. He claims an ongoing loss until retirement age based on the earnings of comparable employees employed by the defendant in its distribution facility. The plaintiff is currently 49 years old.

Chronology

16. The evidence before me establishes the following chronology of events.

17. On the day of his injury, 24 August 2017, the plaintiff immediately reported his back pain to his manager. He was taken to the defendant’s sick bay and then subsequently by a colleague to his general practitioner Dr Nadia Khan.

18. The defendant more or less immediately began to keep records of the plaintiff’s presentation and complaints, and to carry out its own investigations and preserve its records. This is borne out for example in the creation and preservation of a first-aid employee statement completed on the day of the injury together with a detailed email from the defendant’s health and well-being advisor. By then the defendant had preserved an activity tracking spreadsheet showing the number of cartons and average weight picked by the plaintiff on the day of the injury, with a precise breakdown. The email of the health and well-being advisor indicated, amongst other things, that the defendant arranged for the plaintiff to be assessed by a paramedic, that an employee of the defendant actually spoke to the plaintiff’s GP after he was assessed by the GP as unfit, and that the defendant discussed arranging “surveillance” for a number of stated reasons. The same email indicates that the defendant had access to and was reviewing footage, presumably footage of the workplace at the time of the plaintiff’s injury. On the same day the defendant gave its own incident report by email and allocated an incident number.

19. On 22 September 2017, the plaintiff had an x-ray and MRI of his lumbar spine.

20. On 23 January 2018, a L5S1 discectomy and rhizolysis was carried out on the plaintiff by Dr Lee, orthopaedic surgeon.

21. On 15 February 2018, the plaintiff first consulted his solicitors, Garling & Co Lawyers. At that time, there was no dispute regarding the plaintiff’s claim, and his condition was not stable.

22. On 17 April 2018, the plaintiff first consulted Dr Darwish, neurosurgeon, upon referral from his GP because of ongoing problems.

23. On 8 May 2018, the plaintiff had an MRI of his lumbosacral spine.

24. On 3 July 2018, the plaintiff was seen and assessed by Dr Samuell, clinical and forensic psychiatrist, on behalf of the defendant.

25. On 9 July 2018, Dr Darwish recommended to the plaintiff that he undergo an L5/S1 laminectomy, discectomy, and fusion. Dr Darwish advised the plaintiff’s GP accordingly.

26. On or about 11 July 2018, the plaintiff advised his solicitors that he had been recommended to have fusion surgery.

27. On 20 July 2018, the plaintiff was examined by Dr Cochrane, neurosurgeon and spinal surgeon, on behalf of the defendant.

28. On 22 July 2018, Dr Samuell provided his report to the defendant.

29. On 3 August 2018, Dr Cochrane provided a report to the defendant.

30. On 24 August 2018, the defendant declined liability for the plaintiff’s fusion surgery and for psychological treatment.

31. The plaintiff’s solicitors then arranged for the plaintiff to be examined by Dr Bentivoglio. In reports dated 15 October 2018 and 22 November 2018, Dr Bentivoglio indicated that surgery was “reasonably necessary” and “not unreasonable”.

32. On 29 November 2018, the plaintiff’s solicitors filed an application to resolve a dispute in the Workers Compensation Commission regarding the plaintiff’s need for fusion surgery. The application proceeded to arbitration and on 25 February 2019 an arbitrator determined that fusion surgery was reasonably necessary.

33. On 11 May 2019 Dr Darwish performed the surgery, which involved an L5/S1 laminectomy, discectomy, pedicle osteotomy, bilateral L5 and S1 rhizolysis, posterior interbody fusion and posterior-lateral bone graft.

34. On 7 August 2019, the plaintiff was examined by Dr Bisht, psychiatrist, at the instigation of the plaintiff’s solicitors. Dr Bisht diagnosed the plaintiff with major depressive disorder, and indicated that he needed fortnightly psychologist appointments, trial medications and monthly review by a psychiatrist.

35. This caused the plaintiff’s solicitors to make another application to the Workers Compensation Commission to resolve a dispute. This time the dispute was about whether the plaintiff needed psychological treatment. The application was filed on 30 September 2019 and resolved during a telephone conference on 29 October 2019.

36. On 18 November 2019, the plaintiff underwent a CT scan of his lumbosacral spine, which showed good position of the screws and cage and early bone growth across the L5/S1 disc space.

37. The plaintiff’s solicitors therefore arranged for a whole person impairment assessment to be undertaken by Dr Bentivoglio, who assessed the plaintiff on 28 February 2020 and provided a report on 2 March 2020.

38. On 5 March 2020, the plaintiff’s solicitors served a claim on the defendant under section 66 of the Workers Compensation Act, 1987 for 24% whole person impairment.

39. The defendant then arranged for the plaintiff to be examined once again by Dr Cochrane, neurosurgeon, on its behalf. Dr Cochrane examined the plaintiff on 17 April 2020.

40. On 23 June 2020, the defendant having not responded to the claim for whole person impairment within the prescribed two months, the plaintiff’s solicitors filed another application to resolve a dispute in the Commission.

41. On 21 July 2020, the defendant served Dr Cochrane’s report dated 15 July 2020 and on the same day, 21 July 2020, the matter proceeded to telephone conference in the Commission and an award was made in the sum of $62,905.50 in respect of 23% whole person impairment and a Certificate of Determination – Consent Orders was issued.

42. On 9 August 2020, Mr Benad, psychologist, provided a report to the defendant.

43. On 17 August 2020, the plaintiff instructed his solicitors to commence a claim for work injury damages.

44. On 19 August 2020, the plaintiff’s solicitors served notice on the defendant in accordance with section 281 and 282 of the Workplace Injury Management and Workers Compensation Act 1998 of a work injury damages claim. Notice of the work injury damages claim was therefore given before the expiration of 3 years after the date of injury, the injury having occurred on 24 August 2017.

45. On 24 August 2020, the defendant requested further and better particulars, which were provided on 21 September 2020.

46. On 27 August 2020, the plaintiff’s solicitors served a Direction for Production on the defendant. This led to protracted correspondence between the plaintiffs and the defendant’s solicitors about the production of documents which continued until at least 11 August 2021 and remained unresolved.

47. During the same period, in April 2021 the plaintiff’s solicitors arranged for the plaintiff to be examined by Dr Low, occupational physician. His opinion was that the plaintiff was unfit for any type of gainful employment. The plaintiff’s solicitors continued to gather treating medical records.

48. On 19 November 2021, the defendant’s solicitors approached the plaintiff’s solicitors with a view to participating in an early Informal Settlement Conference.

49. On 13 December 2021, the plaintiff’s solicitors provided the defendant with information it had requested about the plaintiff’s cardiological condition.

50. On 14 December 2021, the plaintiff’s solicitors served reports of the plaintiff’s treating psychologist and medico-legal occupational physician.

51. On 15 December 2021, the parties held an Informal Settlement Conference without success.

52. On 9 February 2022 the defendant sought particulars of a prior motor vehicle accident, which the plaintiff’s solicitors provided on 14 February 2022.

53. On 28 February 2022, the plaintiff’s solicitors sent a brief to counsel in the matter.

54. On 1 March 2022, counsel advised the plaintiff’s solicitors that a liability report should be obtained. The plaintiff’s solicitor with the present carriage of the matter (since February 2023) gave evidence that it appeared that a liability report had not been commissioned previously because the plaintiff’s solicitors had been seeking production of documents and then attempting to settle the matter without incurring expense.

55. On 18 May 2022 the plaintiff’s solicitors sent a letter of instruction to an expert for a report on liability.

56. On 9 August 2022, the defendant’s solicitor suggested holding another informal settlement conference. The plaintiff’s solicitors advised that they were almost in a position to file a Pre-Filing Statement and could likely attend a mediation by October.

57. On 17 August 2022, the plaintiff’s solicitors received a report from the liability expert.

58. On 28 September 2022 the plaintiff’s solicitors served a Pre-Filing Statement on the defendant’s solicitors. A copy of that pre-filing statement was in evidence before me and comprises 394 pages in a lever arch binder.

59. On 24 October 2022 the plaintiff’s solicitors received a pre-filing defence from the defendant’s solicitor. A copy of that pre-filing defence was in evidence before me and comprises 2087 pages in a little over 4 lever arch binders.

60. On 17 November 2022, the defendant served the plaintiff’s leave records.

61. On 5 December 2022, the defendant served three statements of employees of the defendant.

62. On 16 December 2022, the parties participated in an unsuccessful mediation held in the Personal Injury Commission.

63. The statement of claim commencing these proceedings was filed on 9 February 2023.

64. The defendant filed a defence on 6 March 2023.

Dr Miniter

65. I note that I was provided with a chronology by counsel for the plaintiff as an aid memoire. That chronology includes an entry for 15 September 2017, less than a month after the injury, which suggests that the plaintiff was examined by a Dr Miniter, orthopaedic surgeon, on behalf of the defendant. However I have been unable to locate a copy of the “report” said to contain that information. Although the fact that Dr Miniter had examined the plaintiff for the defendant on that date was expressly mentioned in oral submissions by counsel for the plaintiff and was unchallenged by counsel for the defendant, having regard to the fact that I have been unable to locate the report in the evidence I have not placed any reliance upon this entry in the aid memoire.

Satisfaction of statutory preconditions for commencing court proceedings for work injury damages

66. When considering the chronology of events, it is important to bear in mind that a plaintiff must go through a number of statutory gates before he or she can commence proceedings for work injury damages. Counsel for the plaintiff referred to these as “The 7 Steps”, which he described as procedural conditions to commencing court proceedings for work injury damages.

67. The first of those is that there must be an agreement or determination as to the level of impairment being at least 15% whole person impairment (: section 151H(1) of the Workers Compensation Act, 1987). This was satisfied on 21 July 2020.

68. The second is that a claim for lump sum compensation must be made (: section 280A of the Workplace Injury Management Act, 1988). That occurred on 5 March 2020.

69. The third applies to when the injured worker can “recover” damages, as opposed to make a claim. However, the requirement is that any permanent impairment compensation to which the worker is entitled in respect of the injury has been paid (: section 208B of the Workplace Injury Management Act, 1988). The date is not important, but it is common ground that the plaintiff has been paid.

70. The fourth is that a claim for work injury damages is made (: section 281 and section 282 of the Workplace Injury Management Act, 1998). This was done on 19 August 2020.

71. The fifth is that the plaintiff must serve a pre-filing statement (: section 315 of the Workplace Injury Management Act, 1998). The pre-filing statement was served on 28 September 2022.

72. The sixth is that the plaintiff must refer a claim for work injury damages for mediation (:section 318A(1) of the Workplace Injury Management Act, 1998). A mediation took place on 16 December 2022.

73. The seventh, and last, is that a certificate of mediation outcome is issued (:section 318B of the Workplace Injury Management Act, 1998). This occurred on 16 December 2022.

Prejudice to defendant

74. The evidence before me shows that the defendant was made aware of the injury on the day it happened and immediately went about collecting and preserving evidence relevant to the determination of liability. It has since then availed itself of the opportunity to closely monitor the plaintiff’s recovery and treatment from a medical point of view.

75. The defendant did not point to any actual prejudice if leave were granted. It did, of course, rely upon a presumption of prejudice due to the passage of time.

74. The defendant sought to identify a possible source of prejudice which it submitted arose out of a potential uncertainty in the case it was being asked to meet in the event that leave was granted. That uncertainty was said to arise out of the service of a statement of the plaintiff dated 23 September 2020 with the pre-filing statement when read with the plaintiff’s expert report of Mr Dubos of 17 August 2022. In his statement, the plaintiff explained that he had been working for the defendant since 2007 and in paragraphs [15] to [33] he gave a detailed description of how he was required to go about his work. He also stated in paragraph [19] that he had previously complained along with other employees about the repetitive awkward lifting that he was required to do. He referred to a union delegate also making complaints. He stated that the last time he received training in lifting and bending was some five years prior to his injury. Included with the documents and instructions provided to the expert, were records of the defendant dating back to 2007 and 2008. In paragraph [25] of his report, the expert then sought to draw conclusions about what the plaintiff had been required to do “throughout the course of his employment” and on the day of the injury.

75. Whilst the defendant acknowledged that the plaintiff’s pleaded claim was for an injury suffered while performing his duties on or about a particular day, namely 24 August 2017, it was concerned that the plaintiff may later seek to amend his claim to allege an injury caused by the nature and conditions of his employment over the full course of his employment in light of paragraph [25] of the expert’s report and the matters I have referred to in the previous paragraph. In that event, so it submitted, the defendant would need to seek to marshal further evidence in the form of records and witnesses going as far back as 2007 and perhaps before, something that would place it in a position of prejudice because the relevant records and witnesses may no longer be available.

76. In my view, I must proceed on the basis that the plaintiff seeks leave, albeit retrospectively, to bring the claim that he has pleaded in his statement of claim. At the present time the possible source of prejudice sought to be identified by the defendant, based on a concern that the plaintiff may seek to amend, in my opinion, is purely speculative and is not something I ought to take into account.

My further findings

79. The plaintiff’s explanation for delay is that he has left the conduct of what have been and continue to be the various disputes with the defendant about his injury in the hands of his solicitors. The plaintiff says, and I accept, that at all times he has relied upon his lawyers to pursue his workers compensation and work injury damages rights, and that he has always provided any information or documentation requested by his solicitors in a timely manner. This is borne out by the fact that he has retained the same firm of solicitors throughout.

80. My impression is, and I find, that the plaintiff’s solicitors have pursued his claim doggedly and appropriately in light of all the circumstances. Whilst there may perhaps have been a little too much time exhausted on attempting to extract production of documents from the defendant, it was, in my opinion, reasonable to have made that attempt in the circumstances of this case where all of the records and knowledge of the defendant’s system of work lay in the hands of the defendant. And further, as was submitted by counsel for the plaintiff, the plaintiff’s need to collect all of the evidence he could before bringing a claim for personal injury damages was critical because he (and his solicitors) had to comply with the statutory requirement to include the evidence he wished to rely on with his pre-filing statement before commencing proceedings (section 315 of the Workplace Injury Management Act, 1998).

81. Part of the reason for delay in being in a position to be able to bring proceedings, particularly in the initial stages, was the need to wait until the plaintiff’s condition had stabilised before it was appropriate to seek to determine his level of permanent impairment. The plaintiff had his first operation, at the hands of Dr Lee, on 23 January 2018. That surgery turned out not to be as effective as at first hoped. Whilst Dr Darwish recommended in July 2018 that the plaintiff have further surgery, the idea was resisted by the defendant and the plaintiff was required to lodge an application with the Workers Compensation Commission before the surgery could be performed by Dr Darwish in May 2019. It was not until after the results of that surgery were known that the plaintiff could be assessed by Dr Bentevoglio in February 2020 for his whole person impairment.

82. Part of the reason for the delay, particularly in the later stages, has been the need to pass through the statutory gates or meet the procedural requirements of the Workplace Injury Management Act, 1998.

Costs

83. The plaintiff submitted that in the event I grant leave, costs should follow the event because he has been successful on his application. The defendant submitted that costs be reserved.

84. In my opinion it is not appropriate to order that the defendant pay the plaintiff’s costs of the application, notwithstanding the usual rule that costs follow the event, for two reasons. First, because in effect the plaintiff has sought and obtained an indulgence to bring his proceedings out of time. Second, whilst the defendant opposed the application, the question of leave was always a matter for the court and the defendant’s opposition was not vigorous.

85. In in all the circumstances, in my opinion the appropriate order is that the costs of the application be costs in the cause.

Order

86. For those reasons, I make the following orders:

1. Pursuant to s.151D of the Workers Compensation Act, 1987, grant leave to the plaintiff nunc pro tunc to commence these proceedings.

2. The costs of the application are to be costs in the cause.

3. The exhibits may be returned

**********

Decision last updated: 29 February 2024