Papalii v IKEA Distribution Services Australia P/L

[2015] NSWDC 36

District Court

New South Wales

Medium Neutral Citation:	Papalii v IKEA Distribution Services Australia P/L [2015] NSWDC 36
Hearing dates:	26 March 2015
Date of orders:	31 March 2015
Decision date:	31 March 2015
Jurisdiction:	Civil
Before:	Levy SC DCJ
Decision:	1. Pursuant to s 109 of the Motor Accidents Compensation Act 1999, the time for the plaintiff to commence proceedings in respect of injuries he sustained in an accident at work on 15 April 2011 whilst in the employ of the defendant, is extended to 26 April 2014; 2.  The costs of the motion are to be costs in the cause; 3.  The proceedings are to be heard together with proceedings between the parties numbered 2015/53875; 4.  The proceedings are listed for directions on 1 April 2015 together with proceedings numbered 2015/53875 5.  Liberty to apply on 7 days notice if further or other orders are required.
Catchwords:	LIMITATION OF ACTIONS – motor vehicle accident involving use of forklift in the workplace – injury to employee driving forklift – proceedings commenced out of time – whether full and satisfactory explanation for delay in commencing proceedings – whether extension of time warranted in the circumstances
Legislation Cited:	Motor Accidents Compensation Act 1999 Workers Compensation Act 1987
Cases Cited:	Smith v Grant [2006] NSWCA 244; (2006) 67 NSWLR 735
Category:	Procedural and other rulings
Parties:	Sipaia Papalii (Plaintiff) IKEA Distribution Services Australia Pty Ltd (Defendant)
Representation:	Counsel: Mr G Beauchamp (Plaintiff) Mr A Hourigan (Defendant) Solicitors: PK Simpson & Co (Plaintiff) HWL Ebsworth Lawyers (Defendant)
File Number(s):	2014/250511
Publication restriction:	None

Judgment

Table of Contents

Notice of Motion	[1]
Evidence	[2]
Submissions of the parties	[3] – [5]
Facts	[6] – [24]
Consideration	[25] – [32]
Disposition	[33]
Costs	[34] – [36]
Orders	[37]

Notice of Motion

1. Pursuant to s 109 of the Motor Accidents Compensation Act 1999, the plaintiff, Sipaia Papalii, brings this application seeking leave to extend to 26 June 2014, the limitation period for commencing proceedings against his former employer, IKEA Distribution Services Australia Pty Ltd, in respect of injuries he sustained in a forklift truck accident in the course of his employment at the defendant’s warehouse on 15 April 2011.

Evidence

2. The plaintiff relied upon two affidavits sworn on 21 November 2014 and 23 March 2015, by his solicitor Ms Michelle Cheong together with voluminous exhibited material. The defendant did not tender any evidence and no oral evidence was called on the hearing of the notice of motion.

Submissions of the Parties

3. The submissions on behalf of the plaintiff were to the effect that the severity of the plaintiff’s injury (which has resulted in him incurring significant physical, mental and psychological incapacity) together with early factual confusion as to how the accident happened, and a related uncertainty over which particular statutory scheme of compensation applied to the plaintiff’s circumstances, constituted a full and satisfactory explanation for the delay incurred in commencing the proceedings.

4. The submissions on behalf of the defendant were to the effect that the delay incurred in commencing proceedings was neither full nor satisfactory within the meaning of s 109 and s 66(2) of the Motor Accidents Compensation Act 1999 [“MAC Act”].

5. The resolution of those two competing positions was dependent upon factual findings.

Facts

6. At about 6.30am on Friday 15 April 2011, in the course of his employment with the defendant, the plaintiff sustained serious spinal and head injuries whilst working with a forklift truck at the defendant’s warehouse when the load on the forklift, or goods stored on a nearby stacked pallet, became unstable and fell onto him with considerable force.

7. The plaintiff’s injuries subsequently required a spinal fusion operation. He has been left with significant neurological deficits. He also suffers from significant anxiety, depression and amotivation. Those problems have continued to afflict him. There is no issue concerning whether the plaintiff fulfils the quantum requirements of s 109(3)(b) of the MAC Act.

8. The evidence discloses that the circumstances of the accident are not entirely clear. The plaintiff has provided a statement in which he has said he has very little recollection of the accident. Although three factual witnesses were identified in the various notification forms, no evidence was called from those persons. Although the plaintiff could not precisely recall the precise sequence of the circumstances that led to his injury, that is not a focal point in this interlocutory application. Instead, it is an issue which should be reserved for the trial.

9. Nevertheless, the plaintiff’s impaired recollection of the events has led to some uncertainty and confusion amongst his legal advisors as to whether the appropriate remedy for his injuries was to be found within the scheme within the provisions of the MAC Act as distinct from the scheme of the Workers Compensation Act 1987 and related legislation. This dilemma has led to some consequential delay in commencing the present proceedings.

10. On 28 April 2011, a worker's compensation injury claim form was provided to the plaintiff's employer. That form, which was ostensibly signed by the plaintiff on the same date, described the accident as having occurred when a 250kg load fell onto his head and neck whilst at work. That form made no mention of the involvement of a forklift having been involved in the accident.

11. On 3 May 2011, a more detailed description of the accident came from the employer's injury claim report that was submitted to the worker's compensation insurer. That form stated that the accident had occurred whilst the plaintiff was transporting a pallet load by forklift with the tines of the forklift raised when the pallet clipped another stored pallet, thereby dislodging an article which then fell onto the plaintiff. Presumably, this further level of detail was obtained as a result of inquiries made by the employer.

12. Subsequently, a motor accident personal injury claim form was signed by the plaintiff on 14 October 2011, and it was lodged on the same date. That form described the accident has having occurred when the plaintiff was driving a fully laden forklift known as a BT Turret Truck when it started to shake from side to side, causing a load there stated to be 350kg to catch against an aisle and strike the plaintiff on the left side of his neck, his left shoulder and the left side of his body. That form went on to describe the plaintiff as having suffered severe crushing injuries to those areas of his body.

13. That form further described the plaintiff's injuries as comprising a spinal cord injury requiring a fusion procedure. The form went on to describe the plaintiff as having ongoing neck and back problems. There is early medical certification that the plaintiff suffers from peri-paresis, with motor/sensory impairment and neurogenic bladder and bowel function. He must use a urinary catheter three times per day. At the outset of his treatment, the plaintiff was diagnosed with anxiety and depression. These problems have continued despite efforts at rehabilitation. He continues to suffer from pain, mood problems, including anxiety and depression. One of the plaintiff's treating doctors has described him as having marked psychological problems.

14. It is plain from the material tendered as to the plaintiff’s post-accident problems that he has much to be depressed about.

15. The plaintiff has remained totally unfit for work from the date of the subject accident. Consequently, he had required substantial amounts of domestic and personal assistance with the activities of daily living. The filed particulars of claim reiterate those matters.

16. On 23 June 2013, as part of his rehabilitation treatment, the plaintiff was assessed by Ms Sara Lucas, a neuropsychologist, who assessed him as having major adjustment problems, including anger issues, as well as being stressed. She also described him as being severely depressed, emotionally blunted, poorly motivated, and unable to focus on attempts at testing.

17. These recorded problems are both significant and disabling. There is no sound basis upon which to infer that these problems have abated to any material degree, and it is therefore safe to assume these problems still continue to afflict the plaintiff.

18. At the time the plaintiff's motor accident personal injury claim form was lodged, the plaintiff's present solicitors were acting for him, and that representation has continued. It was not suggested by the defendant that there had been any dilatoriness on the part of those solicitors in pursuing the plaintiff's claims.

19. On 17 October 2012, the Principal Claims Officer of the Motor Accidents Authority issued a certificate exempting the claim from the CARS assessment process pursuant to s 92(1)(a) of the MAC Act.

20. On 2 April 2014, some two weeks before the expiry of the 3 year limitation period, the plaintiff's solicitors were seeking particulars in the form of liability and claims assessment information from the defendant's solicitors with a view to briefing a liability expert to provide an opinion in relation to the plaintiff’s accident. As at 5 May 2014, those particulars remained outstanding. By then, the 3 year limitation period had expired.

21. On 14 August 2014, the solicitor for the plaintiff ultimately obtained an expert liability report from Dr George Rechnitzer, a safety and engineering consultant at the University of NSW. That report was necessarily based on limited assumptions.

22. It is plain that the preparation required on behalf of the plaintiff to meet the liability issues raised by this case is not yet in a final state. There are still factual matters to be explored and considered by the plaintiff's expert witness. Those avenues of preparation cannot proceed whilst the subject matter of the present notice of motion remains undetermined.

23. Meanwhile, on behalf of the plaintiff, proceedings have been brought pursuant to both the motor accident and workers’ compensation schemes for compensation. If the plaintiff is entitled to proceed with his motor accident claim the damages assessable under that scheme are more advantageous to him than under the scheme of the workers’ compensation legislation but that is not a relevant consideration for a grant of leave to proceed.

24. The pivotal question is whether the plaintiff’s mental capacity is a relevant factor. Such a factor is contemplated by s 109(4) of the MAC Act, although the term has been left undefined in that Act.

Consideration

25. To succeed in his application for leave to extend the limitation period for his motor accident claim, the plaintiff must provide a full and satisfactory explanation for the delay in initiating the claim: s 109(1) and s 109(3)(a) of the MAC Act. An explanation may be taken to be satisfactory if a reasonable person in the position of the claimant would have been justified in experiencing the same delay which is the subject of the explanation: s 66(2) of the MAC Act.

26. A salient feature of what a reasonable person in the position of the claimant would have experienced in the circumstances must include the circumstances and the effect of the plaintiff’s mental capacity. That term is undefined in the MAC Act.

27. In this case, the undisputed evidence is that the plaintiff’s mental capacity is afflicted by amotivation, anxiety and depression, as influenced by the background of his severe physical limitations and problems.

28. In considering the fullness of the explanation of the delay in bringing proceedings it is significant that there was some doubt about the circumstances of the accident that caused some confusion and uncertainty for the plaintiff’s legal advisors which delayed the lodgement of the motor accident claim. That conclusion should not be read as a criticism of the plaintiff’s legal advisors. The plaintiff was justified in his circumstances in leaving the matter of choice of avenues of compensation to his legal advisors. Given the plaintiff’s psychological state, a more fulsome explanation is not required in the circumstances of this case. The delay incurred on that account should not have the result of penalising the plaintiff: Smith v Grant [2006] NSWCA 244; (2006) 67 NSWLR 735, at [60].

29. The relevant delays requiring explanation and consideration for the purposes of determination of the present notice of motion are: first, the effluxion of time between the date of accident on 15 April 2011 and the expiry of the 3 year limitation period on 15 April 2014; secondly, the 10 week delay between the expiry of the limitation period and the filing of these proceedings on 26 June 2014; and thirdly, the further delay of 5 months between the filing of the proceedings until the filing of the present notice of motion, which occurred on 24 November 2014.

30. The plaintiff’s problems as summarised in paragraph [16] above have impacted upon him as a continuum since the subject accident.

31. In those circumstances, I consider that in respect of each of the three components of the period of delay requiring explanation, the explanation for the delay proffered on behalf of the plaintiff is one that is both full and satisfactory for the purposes of a grant of the leave as claimed. I consider that the interests of justice demand that conclusion when applying the statutory criteria in this case.

32. The defendant did not tender any material that might have suggested the existence of material prejudice that might operate as a restraint or contra-indication on the exercise of discretion to extend the time for the commencement of the proceedings. No such prejudice is otherwise evident.

Disposition

33. It follows that the plaintiff has established an entitlement to orders extending the time for filing of proceedings claiming damages pursuant to the generally applicable provisions of the MAC Act.

Costs

34. It was mandatory for the plaintiff to pursue the present application for leave to proceed. It was open to the defendant to accede to the application if it thought fit to do so. The defendant also had the right to resist and test the plaintiff’s application. The defendant took that latter option.

35. In circumstances where, in this Court, as is evident in the present case, there are related proceedings between the parties arising out of the same incident, and where it is also plain that those proceedings should be heard together, the question of the plaintiff’s entitlement to damages under the scheme of the MAC Act, as distinct from his workers’ compensation rights, remains a matter to be determined.

36. In those circumstances, I consider that the appropriate order for the costs of the motion under present consideration is that those costs should be assessed as costs in the cause.

Orders

37. I make the following orders:

1. Pursuant to s 109 of the Motor Accidents Compensation Act 1999, the time for the plaintiff to commence proceedings in respect of injuries he sustained in an accident at work on 15 April 2011 whilst in the employ of the defendant, is extended to 26 April 2014;

2. The costs of the motion are to be costs in the cause;

3. The proceedings are to be heard together with proceedings between the parties numbered 2015/53875;

4. The proceedings are listed for directions on 1 April 2015 together with proceedings numbered 2015/53875

5. Liberty to apply on 7 days notice if further or other orders are required.

**********

Decision last updated: 31 March 2015