Lynch v VLI Drilling Pty Ltd

[2024] NSWSC 1370

Supreme Court

New South Wales

Medium Neutral Citation:

Lynch v VLI Drilling Pty Ltd [2024] NSWSC 1370

Hearing dates:

25 October 2024

Date of orders:

25 October 2024

Decision date:

25 October 2024

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Under s 151D of the Workers Compensation Act 1987 (NSW) grant leave to the plaintiff nunc pro tunc to commence these proceedings for damages for the injury suffered by him on 21 December 2013 by filing his statement of claim on 22 December 2023.

(2) I note the agreement of the parties that the costs of this application of each of them should be costs in the cause.

Catchwords:

WORKERS COMPENSATION – application extension of limitation period – application neither consented nor opposed – plaintiff’s reliance on solicitors’ advice – availability of witnesses – no forensic prejudice – discretion to grant leave exercised

Legislation Cited:

Motor Accidents Act 1988 (NSW), s 52(4)

Workers Compensation Act 1987 (NSW), ss 66, 67, 151A, 151D, Pt 3 Div 5

Cases Cited:

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

Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27

Salido v Nominal Defendant (1993) 32 NSWLR 524

The Commonwealth of Australia v Mewett (1997) 191 CLR 471; [1997] HCA 29

Category:

Procedural rulings

Parties:

James Francis Lynch (Plaintiff)
VLI Drilling Pty Ltd (Defendant)

Representation:

Counsel:
E O’Neill (Plaintiff)
J Webb (Solicitor)(Defendant)

Solicitors:
Brydens Lawyers (Plaintiff)
Hicksons Lawyers (Defendant)

File Number(s):

2023/465362

ex tempore JUDGMENT (revised)

1. By notice of motion filed on 17 May 2024 the plaintiff, James Lynch, seeks an order for the extension of time to commence proceedings for work injury damages against the defendant pursuant to s 151D Workers Compensation Act 1987 (NSW) (the “WCA”). Proceedings have already been commenced, albeit out of time, and if I am persuaded to grant leave to issue the proceedings out of time, he seeks an order nunc pro tunc to the filing of the statement of claim on 22 December 2023.

2. Mr Lynch sues in respect of an injury which occurred on 21 December 2013 and, accordingly, the limitation period of three years fixed under s 151D expired on or about 21 December 2016. So, these proceedings, when commenced, were approximately seven years out of time.

3. The defendant, VLI Drilling Pty Ltd, neither consents nor opposes leave being granted. Rather, it submits that it is a matter for the Court to determine whether the plaintiff ought to be granted leave to commence the proceedings. Having said that, I record that I discussed with Mr Webb, solicitor who appears for the defendant, that I had noticed that the statutory bar is raised in the defence filed, and that the affidavit of Ms Laura Charlton, solicitor, read in the defendant's case, seeks dismissal of the motion in express terms.

4. But Mr Webb has clarified that since that affidavit was sworn on 30 August 2024, other material has come to hand, particularly witness statements served by the plaintiff, and the defendant’s position now is that it neither consents nor opposes leave. Mr Webb accepts that the defendant does not point to any actual forensic prejudice that would mean it cannot have a fair trial. As I understand the position, the defendant still relies upon what is sometimes referred to as presumptive prejudice, having regard to the significant effluxion of time, in accordance with the oft-cited judgment of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25.

Evidence read

5. The plaintiff reads his affidavit filed on 17 May 2024 and two affidavits of the solicitor with the carriage of the matter, Mr David Le, of 17 May 2024 and 4 September 2024. I have also had the benefit of the very helpful written submissions prepared by Mr E O'Neill of learned counsel, who appears for the plaintiff. The defendant has read, as I have indicated, the affidavit of Ms Laura Charlton of 30 August 2024.

Background

6. By his statement of claim filed on 22 December 2023 the plaintiff alleges that he injured his right shoulder in the course of his employment by the defendant, VLI, on 21 December 2013. I should say that that was work “in or about a coal mine” for the purpose of the WCA and, accordingly, the plaintiff's right to work injury damages, if any, are determined according to the modified Common Law system of damages under Pt 5 Div 3 WCA as it was before the substantial amendments made in 2001, as is common ground between the parties.

7. The circumstances of the plaintiff's injury were that he was operating a drilling machine. The alleged injuries include pain and restriction of movement in his right shoulder consequent upon a tear in its anatomy, development of a consequential injury to his left shoulder due to overuse protective of his right shoulder, a complex regional pain syndrome which, as I understand the material before me, has now resolved, inability to lift heavy weights and other restrictions and disabilities.

8. By its defence filed on 22 April 2024, quite apart from raising the statutory bar, the defendant denies negligence, pleads contributory negligence and relies upon the statutory provisions in Pt 5 Div 3 WCA which modify the damages available.

The plaintiff’s case

9. The plaintiff is now aged 57 years, and he is a directional inseam driller by occupation. That is a skilled occupation, as the name suggests. He commenced employment with the defendant in 2008, and his primary duties were to drill holes in the peripheral wall of the underground coal mine to ensure that the buildup of gas that might otherwise occur did not exceed levels specified in the appropriate standards governing the work, health and safety requirements of underground coal mining work.

10. This work was normally performed by two men operating a large machine, and that was the situation on 21 December 2013. The plaintiff says that on 21 December 2013 the drill rig was positioned in a hole or niche, and the trailer which carried the drill rods that needed to be added for the purpose of the drilling operation was at a difficult angle. Moreover, because of the nature of the work being performed on that particular day he says that the trailer was over-stacked with drill rods, and this combination of factors meant that the manual handling aspects of obtaining the rods from the trailer, lifting them and positioning them to be added to the drill assembly had to be done above shoulder height.

11. Each drill rod was about three metres in length and weighed in the range of 25 to 28 kilograms. As many as 100 of those rods had to be assembled on to the drill assembly to drill the holes to the depth necessary. The disadvantageous position of the equipment, and the added difficulty of what was already a heavy job anyway, caused the plaintiff, on his case, to complain to his supervisor, a Mr Scott Casey, about the arduousness work that day; to which Mr Casey responded, "Coring just needed to get done," and the plaintiff got on with his work.

Available evidence

12. While undertaking this heavy manual work, Mr Lynch noticed pain in his right shoulder which he reported to Mr Casey, who filled out an incident report which is extant. Mr Lynch’s account of the nature and conditions of the work are supported by statements that have been obtained from his drilling offsider, Mr Daniel Adlington, and VLI's safety manager at the time, Mr Heath Kilah.

13. I should also say that from Ms Charlton's affidavit it is evident that, with some effort, Mr Casey has now been located. He is alive and although he has expressed a reluctance to get involved, and perhaps understandably, claims no real recollection of the events. I observe that it does not seem anyone has sought to show him the incident report which he completed, and ask him about it. In particular, no inquiry has been made as to whether, having seen the incident report, his recollection has been refreshed.

14. After reporting the injury on 21 December 2013 the plaintiff, I infer perhaps after the Christmas public holidays, continued to work. His pain continued, and he consulted his local general practitioner on or around 20 January 2014. He was referred to an orthopaedic surgeon and underwent surgical repair in June 2024.

Subsequent progress

15. After a period of convalescence, including convalescence from the complex regional pain syndrome I infer, the applicant returned to light duties work in VLI's office, but ultimately returned to his drilling work underground. He continued to perform that work, albeit with difficulty, until he left VLI in or about 2017 because he had obtained another position with another underground operator as a directional driller. That was with a company referred to as Peabody, and he worked in that position until being made redundant in June 2020.

16. He again, after his redundancy, secured similar employment in the same capacity with a company referred to as CH4. However, he says his difficulties worsened and he eventually was forced to cease work earlier than he normally would have, given his relative youth, in November 2022.

Steps to obtain legal advice and explanation for delay

17. He says that whilst working at Peabody one of his workmates who knew of his difficulties suggested that he may have further entitlement to compensation. He did not act upon until after he left Peabody, and consulted his solicitors, Brydens, on 23 June 2021. At that time, he was inquiring, I infer, about additional workers' compensation rights. I note that before this, he had not made any inquiries about any entitlement to permanent loss compensation for any impairment of his right arm.

18. It should be said that after consulting Brydens he was given advice about the possibility of claiming common law damages for the first time. Brydens initiated investigations in that regard. It should be borne in mind that the middle of 2021 was the period of the second lockdown due to the COVID pandemic and related social distancing regulations which slowed the pace of legal and other practice. He had a conference online with senior counsel very experienced in the field, Mr P Khandar SC. Brydens organised medicolegal examinations on Mr Lynch’s behalf with Dr John Davis and Dr Peter Giblin. Those examinations took place on 15 March 2022 and 4 April 2022 respectively, but the reports did not become available until 12 and 13 July 2022.

19. In June 2022 the solicitors organised private investigators to locate and obtain statements from the two witnesses to whom I have made reference, Mr Adlington and Mr Kilah. They were promptly obtained by the investigators on 23 June 2022 and 19 June 2022, respectively. There was a further conference with Mr Khandar. Having received further advice, the plaintiff, as he was required to do under the continuing effect of s 151A WCA, as it applies to coal miners, on 29 August 2022 elected to claim modified common law damages rather than permanent loss compensation.

20. Quite appropriately, before commencing proceedings, the solicitors qualified Dr Bruce Hepplewhite, a mining engineer who is well known in this area, to provide his expert opinion as to the safety of the system of work and whether other measures should have been adopted by an employer in accordance with the usual industry practice in relation to the work being performed by the plaintiff. The expert's report was obtained on 25 October 2022. Dr Hepplewhite’s report was generally supportive of Mr Lynch’s claim and senior counsel was briefed to further advise.

21. Although up until October 2022 there seems to have been appropriate forensic diligence by the solicitors on the part of the plaintiff, it was not until, as I have said, 23 December 2023 that the statement of claim was actually filed. That is not really well explained in the material before me other than by Mr Lynch, who says that he relied on his solicitors at all times to promote his legal rights and he complied with all requests by them for action on his part. I accept his evidence in that regard.

22. But Mr Le in his affidavit says that there was an oversight in Brydens' office in the preparations, since a letter requesting tax returns for the preparation of statements of particulars, had been prepared in November 2022 but was not sent out until July 2023 because of that oversight. Mr Lynch says that he provided the returns shortly after receiving the request, so it is still a little difficult to understand what happened between July and December 2023, which I suppose is not very long in the overall scheme of the passing of time relevant to this case.

Legal principles

23. In The Commonwealth of Australia v Mewett (1997) 191 CLR 471; [1997] HCA 29 at 534 Gummow and Kirby JJ said:

“...a statutory bar, at least in the case of a statute of limitations in the traditional form, does not go to the jurisdiction of the court to entertain the claim but to the remedy available and hence to the defences which may be pleaded. The cause of action has not been extinguished. Absent an appropriate plea, the matter of the statutory bar does not arise for the consideration of the court. This is so at least where the limitation period is not annexed by statute to a right which it creates so as to be of the essence of that right. Secondly, in the circumstances the defendant may be estopped from pleading the statutory bar or otherwise be deemed to have waived the right to do so.”

24. There is no doubt that s 151D is a statute of limitations in the traditional form, which bars the remedy but not the right. It is for the defendant to plead the statutory bar as the defendant has done here. It also carries the onus of proof in regard to the statute of limitation; Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27. And of course in the present circumstances of this case we have no difficulty doing so.

25. Section 151D(2) is in the following terms:

“A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.”

26. One might observe that s 151D(2) is subject to a very flexible discretionary power in the court to extend time which is not limited by any temporal long-stop by which a cause of action is extinguished. Moreover, s 151D, as Mr O'Neill pointed out in his written submissions, does not spell out any specific criteria or statutory conditions which limit or restrict the circumstances in which the court may exercise the power to grant leave out of time that it confers.

27. The provision is identical to s 52(4) Motor Accidents Act 1988 (NSW) as originally enacted, which was the subject of interpretation by the Court of Appeal in Salido v Nominal Defendant (1993) 32 NSWLR 524. In that case Gleeson CJ (at 532; Kirby P and Powell JA agreeing with separate reasons) said that the proper question for the judge to ask, in dealing with an application for leave to proceed, is whether it would be fair and just to grant leave. It is not necessary that there be special or exceptional circumstances.

28. Salido (at 532-3) and subsequent decisions applying it identified, as relevant factors for the court to consider in determining that question, inter alia, whether the plaintiff has exercised forensic diligence in the promotion of his own legal rights. Generally, that requirement requires the plaintiff to provide a full and satisfactory explanation for the delay in commencing proceedings. And the second and perhaps more significant question is whether a defendant would be subject to irremediable forensic prejudice if a plaintiff were given leave to proceed out of time. That question comes down to whether the delay in all the circumstances had made the chances of a fair trial unlikely.

29. Both of those questions have to be approached bearing in mind the rationales which motivate the legislature to enact limitation periods and, as I have said already, those considerations are articulated in McHugh J's judgment in Brisbane South.

Decision

30. In the present circumstances, I can perhaps deal with the second question first. It may be taken from the stance, with respect, appropriately adopted by the defendant that it does not argue that the circumstances are such, notwithstanding the long delay, that it cannot now have a fair trial of Mr Lynch's work injury damages case.

31. As the decision in Brisbane South establishes, the persuasive onus at all times lies on the plaintiff and never shifts, including the onus of persuading the court that a fair trial is likely. The defendant has an evidential onus to point to any specific matter of prejudice which it says makes a fair trial unlikely. And in the absence of a discharge of that evidential onus, the court may proceed on the basis that there is no specific matter which denies the defendant the opportunity of a fair trial, to which it is entitled.

32. I should say positively in this case that from Ms Charlton's affidavit, it is clear that there was a large body of extant documentation relevant to the defence of the case. This includes the plaintiff’s personnel file, I will call it, demonstrating the training provided to him for the purpose of performing his work and other documentation relevant to the defendant's work, health and safety obligations as an employer engaged in the coal mining industry. It is also clear that there are wage records and the like, and records of toolbox meetings. The incident form that Mr Casey completed on or about 21 December 2013, as I have said, is also extant.

33. More specifically, Mr Adlington and Mr Kilah, both relevant witnesses, each has what appears to be a good actual recollection of relevant facts concerning the issues that are likely to be litigated on liability.

34. As I have already said, it is not clear to me that Mr Casey, if shown his incident report, would not have a recollection that would be important to a determination of the circumstances, not just of the injuries suffered by the plaintiff, but of factors relevant to the question of legal liability.

35. I remind myself the onus lies upon the plaintiff. However, experience suggests that it is likely that a person in Mr Casey's position, if shown the incident report, would have something of evidential value to say about it. And I am not persuaded that his profession of a lack of recall is the final word that he would have if he were properly interviewed about the circumstances. I am satisfied that, notwithstanding the great effluxion of time, there can be a fair trial of all the issues if I grant leave to proceed.

36. I turn then to the question of forensic diligence and the explanation for the delay. I think that is to be found, as Mr O'Neill submitted, really in the circumstance that the plaintiff apparently made a good initial recovery from his injury following his surgery after his complex regional pain syndrome settled down, but the effect of the injury on his shoulder was somewhat insidious and, as he continued to perform this heavy work, he did so with increasing difficulty notwithstanding his determination, as I would infer, to continue in that occupation. And it was not really until November 2022 that the injury came against him, and he was forced into what might be regarded as very early retirement from heavy work as an underground coalminer.

37. If one looks at the position as at the date of the expiration of the limitation period, it is understandable that a person in his position would not take proceedings. He had had surgery. He had been paid compensation for his time off work. His medical bills had been paid and he had returned substantially to his same well paid pre-injury occupation. Looked at from the standpoint of the expiration of limitation period, a reasonable person would be justified in thinking it was not in his interest to bring common law proceedings inasmuch as at that point in time the damages might not have been worth, as it might be put, “powder and shot”.

30. However, that circumstance had changed by the time he did consult Brydens in June 2021, when he was having increasing difficulty performing his work even though he was still working, and he was forced out of the workforce in November 2022 because of his injuries. There still may have been a question about whether the likely damages recoverable were worth the effort. And to my mind it was only at that stage, even though investigations had been underway prior thereto, that he was justified in making the decision to elect to claim common law damages rather than relying upon his rights to permanent loss compensation under ss 66 and 67 WCA.

31. If one looks at it in that light, and also takes into account his evidence that at all times in any event he did what was asked of him by his solicitors and relied upon them to advance his case, I am of the view, from his standpoint, that the explanation he has given and the additional factors which I find are implicit in the facts of the case as I have described them, are full and satisfactory enough to justify my forming the conclusion. This is especially so given the absence of forensic prejudice, that it is fair and just that he be given leave to bring the proceedings out of time.

32. I should say this. The case is somewhat unusual inasmuch as after a period of 10 years the parties, and in particular the defendant, are still in a position to properly and fairly litigate the necessary issues. Normally, one might be reluctant to consider that such a long effluxion of time was not a matter which made it very difficult for a plaintiff to establish it was fair and just that he be allowed to proceed. But one cannot set any benchmark. The only relevant benchmark is the benchmark set by Parliament of the initial limitation period of three years, subject to the general discretion to extend time.

33. For those reasons I make the following orders:

1. Under s 151D of the Workers Compensation Act 1987 (NSW) I grant leave to the plaintiff nunc pro tunc to commence these proceedings for damages for the injury suffered by him on 21 December 2013 by filing his statement of claim on 22 December 2023.

2. I note the agreement of the parties that the costs of this application of each of them should be costs in the cause.

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Decision last updated: 29 October 2024