Oddy v State of New South Wales

[2003] NSWCA 272

CITATION:	Oddy v State of New South Wales [2003] NSWCA 272
HEARING DATE(S):	01/10/2003
JUDGMENT DATE:	9 October 2003
JUDGMENT OF:	Hodgson JA at 1; Ipp JA at 6; Foster AJA at 13-39
DECISION:	1. That leave be granted; 2. That the appeal be upheld; 3. That the orders of the primary judge be set aside; 4. That the time for the bringing of the claimant's action be extended for 14 days from this date; 5. That the opponent pays the claimant's costs of this application and bear its own costs of the hearing in the Court below.
CATCHWORDS:	Leave to commence proceedings out of time against the opponent.
LEGISLATION CITED:	Motor Accidents Act, 1988 (NSW)
CASES CITED:	Salido v the Nominal Defendant (1993) 32 NSWLR 524
PARTIES :	Oddy State of New South Wales
FILE NUMBER(S):	CA 41249/02
COUNSEL:	Mr J.D. Hislop QC with Ms M. Kumar - Appellant Mr R.C. Tonner - Respondent
SOLICITORS:	Farrell Lusher - Applicant Turner Whelan - (Agents) Moray & Agnew - Respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	37/02
LOWER COURT JUDICIAL OFFICER :	Goldring J

CA 41249/02
DC 37/02

HODGSON JA
IPP JA
FOSTER AJA

THURSDAY, 9 OCTOBER, 2003

LAURENCE LEONARD ODDY v THE STATE OF NEW SOUTH WALES

Judgment

1 HODGSON JA: I agree with Ipp JA and Foster AJA.

2 One other matter which in my opinion is important in this case, and which was not taken into account by the primary judge, is this.

3 The Motor Accidents Act manifest a legislative intent to discourage small claims. Until the dramatic worsening of Mr. Oddy’s condition in October 2000, his claim could have been considered a small one. The real medical issue in the case, in relation to which the primary judge found prejudice, namely whether or not Mr. Oddy’s condition from October 2000 onwards was caused by the 1992 incident, was one which did not arise until October 2000.

4 This has the consequence referred to by Foster AJA, that it is unlikely that the State would have undertaken expensive radiological investigations in 1992 if notice had been given then. But it also has the consequence that, if proceedings had been commenced within the three-year time limit, it is probable that the real medical issue would not have arisen at all in the case (because the case would have been concluded before October 2000); and also the case might have been lost because statutory thresholds were not reached.

5 It appears that no relevant delay has occurred after the time when the only issue in respect of which prejudice is alleged first arose. In my opinion, this is relevant to the weight to be given to the alleged prejudice, and should have been taken into account.

6 IPP JA: I have read the reasons to be published by Foster AJA and agree with them.

7 The State complained that the delay on the part of Mr Oddy would cause it prejudice in investigating the cause of Mr Oddy’s present condition. Goldring DCJ upheld this submission. In my opinion, his Honour erred in this respect.

8 Firstly, Dr Searle, a specialist medical practitioner, who reported on behalf of Mr Oddy, said that it was “certainly possible for an appropriately qualified and experienced medical specialist” to express opinions as to the issues of causation that would arise in the trial. Thus, the issue of prejudice was squarely raised by Mr Oddy.

9 The State made no attempt to contradict Dr Searle. Indeed, the State led no evidence in this respect whatever. Dr Mellick, whose report was delivered some eight months after that of Dr Searle, is entirely silent on this issue. The inference is that he did not disagree with Dr Searle’s opinions in this regard.

10 Secondly, as Foster AJA has pointed out, neither Dr Mellick, on behalf of the State, nor Dr Searle, on behalf of Mr Oddy, appear to have had any difficulty whatever in expressing firm, but conflicting, views as to causation.

11 Thirdly, in the absence of any evidence on the issue, counsel for the State was compelled to rely on “commonsense” for his contention that the delay would prejudice the State. In my view, it would be quite wrong for the Court to take judicial notice of unproved facts relating to the physical condition of Mr Oddy and the medical investigations that have been carried out in that connection in order to arrive at a conclusion that there would be prejudice in determining the true cause of Mr Oddy’s injuries. I do not accept that this issue is capable of being resolved by commonsense.

12 Accordingly, I agree with the orders proposed by Foster AJA.

13 FOSTER AJA: This is an application for leave and, if granted, to appeal from the decision of Goldring DCJ, given in the District Court of New South Wales on 9 September 2002. His Honour refused to grant to the claimant, Laurence Leonard Oddy (“Mr Oddy”), leave to commence proceedings out of time against the opponent, The State of New South Wales (“the State”), pursuant to the provisions of s 52(4) of the Motor Accidents Act 1988 NSW) (“The Act”).

14 Mr Oddy wished to sue the State in order to recover damages at common law for injuries received by him to his lower back in an accident occurring at his workplace on 2 March 1992, while he was unloading a 200kg drum of oil from the back of a truck. During the unloading process, it is alleged, the drum commenced to roll and Mr Oddy incurred his injury, whilst seeking to restrain it.

15 Mr Oddy did not consult a lawyer in respect of this accident until 29 November 2001 when, according to his case, he became aware, for the first time, that he might have a claim against the State under the Act. Leave to commence these proceedings out of time was sought by Notice of Motion filed on 12 March 2002, the motion being heard by his Honour on 19 August 2002 and 9 September 2002, with judgment being delivered on the latter date.

16 His Honour had before him a number of affidavits. Mr Oddy was the deponent in two of them, sworn 14 March 2002 and 22 August 2002. Mr Peter Smith, his solicitor, provided two affidavits, the first sworn 12 March 2002 and the second 19 August 2002. Mr Oddy also relied upon a statement of Stephen Wren, dated 3 September 2002.

17 Mr Oddy’s affidavit of 14 March 2002 annexed a copy of a lengthy statement made by him, together with numerous annexures, which he had supplied to the State and its relevant third party insurer, on 24 January 2002, when seeking to comply with his statutory obligation, pursuant to s 43A of the Act, to provide a full and satisfactory explanation in relation to his delay in making his claim.

18 His statement indicated that he was born on 11 April 1944 and had commenced work with a Government Department, known, in 2002, as the Department of Land and Water Conservation (“the Department”) in about 1977 and had worked with them continuously since that time. He had commenced as a Leading Hand progressing to an Overseer sometime in the early to mid 1980’s, when he supervised river management works, directing the work of a gang of four workmen.

19 He suffered his injury on 2 March 1992 in the manner which I have briefly described. The vehicle involved was owned and operated by the Department and was subject, in the usual way, to a third party insurance policy. He was working with Stephen Wren, whose statement, in general terms, corroborates Mr Oddy.

20 Mr Oddy suffered immediate severe pain in his lower back. He could not move without assistance. He obtained fairly immediate help from Mr Quilty, a local chiropractor. He saw Mr Quilty on a regular basis over the next week and obtained some relief from his pain. Mr Quilty’s certificate dated 24 March 1992 is annexed to the statement and corroborates his treatment.

21 Mr Oddy also saw his local medical practitioner, Dr Mellick on 4 March 1992, who gave him a certificate to cover a period off work until 15 March 1992. However, Mr Oddy saw him on 11 March 1992 and says that the doctor “cleared me fit for duties on 12 March 1992.” Appropriate certificates are annexed to Mr Oddy’s statement. Mr Oddy reported his injury to the Department on 2 March 1992, a copy of the report being annexed to his statement.

22 According to his affidavit, Mr Oddy, even though back at work, “still had niggling pain” in his lower back. He was “never pain free for any length of time” after returning to work. He continued to receive treatment from Mr Quilty over the years and, from time to time, would see Dr Mellick and other local doctors in the same practice. His work involved him in driving over rough roads. He said, “I felt that my back was gradually deteriorating in that the pain was becoming worse and I felt increasing stiffness and lack of flexibility in my back.”

23 Until he suffered an incident in October 2000, he continued to work and indicates that the last team that he supervised as an Overseer consisted of five men, the team being involved in the lopping and removal of willows from the Tumut River. He says that it did not occur to him to get compensation for his injury and loss because “I was still at work and I could work around my disabilities.”

24 On 3 October 2000, Mr Oddy suffered a severe increase of pain in his lower back whilst he was walking along a concrete path that ran parallel to the river where work was being done. The pain increased to the point where it was necessary for him to leave work that day and seek medical help. He reported the injury and a Workers’ Compensation claim form was duly completed. This referred to the onset of pain whilst walking on the concrete path on 3 October 2000 and referred to the previous injury in March 1992, whilst unloading the drum from the back of the utility. The onset of pain on 3 October 2000 was corroborated by a witness, Allan Barton, who made a witness statement to the Workers’ Compensation insurer.

25 There were appropriate medical examinations of Mr Oddy’s lower back, organised by Dr Chiang, who was, by then, Mr Oddy’s local practitioner. A CT scan revealed problems at the L3/4 level and L4/5 level of Mr Oddy’s spine.

26 Mr Oddy’s statement refers in some detail to the course of events and examinations that occurred after 3 October 2000. Medical examinations were conducted by medical practitioners on behalf of the Department including a reference to Dr Newcombe, a neurosurgeon, practising in Canberra, on 16 August 2001. Mr Oddy said that, as a result of the inquiries and medical reports, the Department “retired me from work as and from 20 December 2001.” On 14 December 2001, the Workers’ Compensation insurer denied liability to pay Workers’ Compensation, on the stated ground that, Mr Oddy’s injury was not related to his employment.

27 Mr Oddy asserted in his statement that he had never received any legal advice from the Department and had always regarded the 1992 injury as a work injury; likewise with “the aggravation in October 2000”. On 20 November 2001, however, as a result of something said by a receptionist in the surgery of Dr Davis, who was examining Mr Oddy on behalf of the Department, he realised that he should see a solicitor, because he thought that his job “was in jeopardy”. Accordingly, he saw Mr Smith, his present solicitor, on 29 November 2001, when he was advised that a claim might be brought in respect of the 1992 injury “under the Motor Accidents Act.” On advice from Mr Smith, he obtained the registration number of the vehicle involved in the 1992 accident and a duly completed claim form was lodged on his behalf on 6 December 2001. On 17 December 2001 he saw a consultant orthopaedic surgeon in Sydney, Dr Searle, who provided a report on 31 December 2001. Dr Searle provided the following opinion:-

“The injury at work on 2/3/92 caused cervical and lumbar ligament strains, and injury to the L5-S1 disc causing tear of the annulus, and possibly injuring the two discs above this which caused them to bulge as reported in the CT scan. The ongoing symptoms from this injury are permanent and cause a moderately severe degree of disability and there have been numerous temporary aggravations and exacerbations because of the general nature and conditions of his employment. Of these subsequent incidents the one in October 2000 produced only a transient exacerbation. But regularly driving over rough roads has probably gradually increased his arthritic changes in the facet joints. To this extent the nature and conditions of his employment have contributed in a small way to his present symptoms and disability.
Because of these injuries he is permanently unfit for work which requires prolonged sitting or prolonged standing, lifting or repeated bending, twisting movements of the trunk or regularly travelling moderate to long distances especially over rough roads.
With regard to prognosis there will be a gradual increase in the symptoms and disability with the passage of time as the degenerative changes progress.
Treatment will continue to be conservative, as at present, and current treatment costs will continue. If his symptoms increase sufficiently he may require a spinal fusion and this would cost $14,225.00 in today’s terms including hospital, surgical and anaesthetic fees and the cost of the implant.
Because of the injury on 2/3/92 and the subsequent nature and conditions of his employment this man has a 10 percent permanent impairment of his neck, a 30 percent permanent impairment of his back (including the thoracic spine), a 10 percent permanent loss of efficient use of the right leg at or above the knee to include the whole limb, and a 10 percent permanent loss of efficient use of the left leg at or above the knee to include the whole limb. Of the right leg disability approximately half is a result of his previous poliomyelitis. Of his back impairment four-fifths is a result of the injury on 2/3/92 and one-fifth a result of the nature and conditions of his employment after that date. These assessments are in proportion to a most extreme case. His employment was a substantial contributing factor. There was no pre-existing condition in his neck or back prior to the injury in March 1992. There was no pre-existing condition in his left leg.”

28 Dr Searle, in a separate report of the same day, also provided the following opinion:-

“It is certainly possible for an appropriately qualified and experienced medical specialist to express an opinion as to the relationship between his current disabilities and impairments and the incident on 2/3/92 and any other incident he may have suffered before or after 2.3.92.”

29 The learned primary judge also had for consideration the affidavit of Mr Smith, which indicated that he first saw Mr Oddy on 29 November 2001, when he obtained instructions in relation to the 1992 accident. The affidavit then sets out the extensive and comprehensive actions taken by Mr Smith on behalf of Mr Oddy in relation to the general preparation of his case and obtaining further medical evidence. There is no need to refer to detail of these matters, all of which were fully referred to in the affidavit and its annexures. However, it may be noted that there were included copies of correspondence to N.R.M.A. Insurance Limited, the relevant compulsory third party insurer, seeking to deal with that company’s assertion that “a full and satisfactory explanation for the delay in making this claim” had not been established.

30 The State, as the appropriate respondent to the Application before her Honour, tendered a report of Dr Mellick of 20 August 2002, referring to an examination of Mr Oddy on 1 August 2002. Dr Mellick is a consultant neurologist. His report is lengthy and comprehensive, containing a full history obtained from Mr Oddy and referring to previous x-rays of his lumbar-sacral spine and also MRI scans performed on 10 September 2001. It may be noted that, in many respects, Dr Mellick disputes the findings and opinions of Dr Searle. There is nothing in the report to suggest that Dr Mellick felt at any disadvantage in expressing the opinions that he did, having regard to the effluxion of time since the 1992 accident. Indeed, Dr Mellick’s opinion, in a closely reasoned report, is to the effect that Mr Oddy’s problems are not reasonably attributable to that incident.

31 The case before the learned primary judge was conducted on the basis of this written material with some cross-examination of Mr Oddy, followed by counsels’ addresses. His Honour gave what appears to be an ex tempore judgment at the conclusion of the addresses. He referred to the Application as being one for leave to commence an action under s 52D of the Motor Accidents Act. He referred to the facts of the 1992 accident as deposed to by Mr Oddy and also to the incident on 3 October 2000. He referred to the applicable test as being that “laid down by Chief Justice Gleeson in Salido v The Nominal Defendant (1993) 32 NSWLR 524”. He stated that “the main concern here is whether or not a fair trial can be obtained”. His Honour had previously indicated that he was satisfied that the plaintiff would have a good chance of succeeding on the issue of liability and that there was, on his part, “no want of forensic diligence.” His Honour, however, found in favour of the respondent. His reasons for so doing were as follows:-

“In this case the applicant’s condition since 2000 is well documented. There are records of his injury in 1992, however, there are some complicating matters which raise problems in this case which might not perhaps happen in other situations. In 1983 it appears that Mr Oddy saw a doctor for an injury to his spine when he had some back pain. He cannot remember this and like Mr Black, for the respondent, I am sure he is being honest. It is a long time ago and it may not have been a major injury. Nevertheless, it is something that a defendant would need to investigate if there were to be a fair trial.
Similarly, Mr Oddy unfortunately when he was a child suffered from polio, and as a result of that has walked with a limp ever since. Dr Mellick, who has examined him for the defendant, has raised an issue as to whether the damage to his back which has caused his present discomfort might be attributable to a degenerative condition.
Those are matters where the defendant is at a very significant disadvantage in that it has not been able to have Mr Oddy examined closer to the time. So because of those matters it seems to me that they raise such doubts that firstly, the defendant is at a significant disadvantage in relation to this matter, and there are also doubts about the applicant’s prospect of success. For those reasons leave is refused.”

32 It is, at first, difficult to understand his Honour’s reference to his doubts about the applicant’s prospect of success, in light of the fact that he had earlier indicated that he had been convinced by argument for the applicant that the plaintiff had a good chance of succeeding. The explanation most probably is that his Honour is referring not to doubt about Mr Oddy’s establishing liability in the State for the 1992 accident but to his prospects of establishing a connection between the accident and his physical disability, for the reasons he had already referred to.

The Appeal

33 There was no issue before his Honour, or before this Court as to failure on the part of the claimant to provide a satisfactory explanation of delay or to display a suitable level of forensic diligence. In its written submissions, the opponent has submitted that it labours under some disadvantage as a result of not having been able fully to investigate the accident in 1992, at or about the time that it happened. It is submitted that, had the action been brought within the limitation period, it would have had an opportunity to do so. It is not clear whether this issue was raised before the trial judge. In any event, I am satisfied that it has no merit. The facts of the accident were simple. It was reported promptly, in circumstances where an investigation into the safety of this operation was reasonably called for on the part of the opponent, as Mr Oddy’s employer. There is no suggestion that witnesses are no longer available and adequate descriptions of the accident were provided in the report and statements made at the time.

34 The real question in this application is whether his Honour demonstrably erred in finding in favour of the opponent on what has been described, in submissions, as the issue of “medical prejudice”. It is submitted on behalf of Mr Oddy that he did so and that this error was so fundamental as to lead to the miscarriage of his discretion.

35 The first matter upon which his Honour placed emphasis, as is demonstrated from the passage set out above, was the happening of a prior accident in 1983 when, according to the record of a general practitioner at that time, Mr Oddy had had a slipping accident in which he had hurt his back. It was successfully submitted that through the failure of Mr Oddy to bring his action within time, the State was robbed of the opportunity to investigate this accident and to consider whether it had caused the problems in Mr Oddy’s back, which led to his being required to give up work. It may be noted that the accident in respect of which he seeks to sue occurred some nine years after this un-investigated earlier mishap. In light of this, there was a very real question whether it was something which the State really needed to investigate in order to obtain a fair trial. Mr Oddy had honestly forgotten it, as his Honour found. It entered the case only because there was a reference to it in the clinical notes of a general practitioner. Those same notes indicated that the affected area was in the thoracic spine, well above the level of the injury allegedly sustained in the 1992 accident. Also, the notes further indicated that any problem relating to it cleared up in a short time. Also, Mr Oddy continued his employment thereafter.

36 The second matter to which his Honour attributed importance was the effect of early poliomyelitis on Mr Oddy’s right foot and leg. This caused him to walk with a limp. It is plain that he had had that affliction since childhood and that, notwithstanding its adverse effect upon his ordinary walking gait, had successfully worked in his chosen vocation. Dr. Mellick has provided a considered opinion as to its effect upon the development of the low back symptoms. It is most difficult to see how the cogency of this opinion can reasonably be said to have been affected by the fact that the plaintiff did not bring his action within three years of his accident in 1992. Significantly, Dr Mellick makes no complaint as to any difficulty experienced by him in assessing the effect of this earlier poliomyelitis, through inability to make any particular type of investigation or examination earlier than he did. Specifically, Dr Mellick does not dispute Dr Searle’s view in the second passage cited above.

37 I am satisfied, with respect, that his Honour erred in the exercise of his discretion, in attributing, in all the circumstances, far too much weight to these two matters. Neither of them, in my view, were capable of establishing a degree of prejudice to the State such as to render it unjust that the claimant’s Application for extension be granted. Even if Mr Oddy had given the appropriate notice and brought action within three years of the 1992 accident, there is no reason to expect, on the evidence before his Honour, that the State would have undertaken expensive radiological investigations at that time. Mr Oddy had been put off work for less than two weeks and, at that time, was experiencing only minor back symptoms.

38 For these reasons, I am of the view that his Honour’s exercise of discretion has miscarried and his decision should be set aside. I consider it possible for this Court to re-exercise the discretion on the material before it. I consider that it should be exercised in favour of the claimant and that, in all the circumstances, it is just and reasonable that the time for bringing of the claimant’s action against the opponent be appropriately extended.

39 Consequently, I propose the following orders:-

1. That leave be granted.

2. That the appeal be upheld.

3. That the orders of the primary judge be set aside.

4. That the time for the bringing of the claimant’s action be extended for 14 days from this date.

5. That the opponent pays the claimant’s costs of this application and bear its own costs of the hearing in the Court below.

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Last Modified: 10/09/2003