Philippe v Fantastic Furniture Holdings Ltd

[2025] NSWDC 55

District Court

New South Wales

Medium Neutral Citation:

Philippe v Fantastic Furniture Holdings Ltd [2025] NSWDC 55

Hearing dates:

11 – 12 March 2025

Date of orders:

13 March 2025

Decision date:

13 March 2025

Jurisdiction:

Civil

Before:

Waugh SC DCJ

Decision:

(1) Pursuant to s.151D of the Workers Compensation Act, 1987, grant leave to the plaintiff retrospectively to commence these proceedings.

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

Catchwords:

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

Legislation Cited:

s151D Workers Compensation Act 1987

Cases Cited:

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

Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207, [2002] NSWCA 207

Whisprun Pty Ltd the Sams [2002] NSWCA 167

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Joseph Philippe (Plaintiff)
Fantastic Furniture Holdings Ltd (Defendant)

Representation:

Counsel:
Mr M Cleary (Plaintiff)
Mr M Best (Defendant)

Solicitors:
Gerard Malouf & Partners (Plaintiff)
Rankin Ellison (Defendant)

File Number(s):

24/247907

Publication restriction:

Nil

Judgment

1. The plaintiff, Mr Philippe, is 40 years old. He will shortly turn 41. He was employed as a warehouse labourer at the defendant’s warehouse at 71 Sackville Street, Fairfield East when, on 30 October 2007, he suffered an injury which, it is common ground, has resulted in a 34% whole person impairment.

2. He applies retrospectively for leave under section 151D of the Workers Compensation Act 1987 to commence proceedings in this Court for work injury damages more than 3 years after the date on which he received his injury.

3. Mr Philippe in fact commenced proceedings by filing a statement of claim on 5 July 2024. This was 16 years and 8 months after the date on which he received his injury. Counsel for the defendant calculated, which is not disputed, that allowing for time that did not run under the relevant statute, the period of delay between the date of injury and the commencement of proceedings was 16 years, 2 months and 25 days. This means that the proceedings were commenced more than 13 years after the 3 year period stipulated by s.151D. On any view, there has been a very long period of delay.

4. I will come to Mr Philippe’s explanation for delay in due course. The defendant submits that his explanation is not sufficient and acceptable. It also raises questions of actual and presumptive prejudice.

A. Legal principles

5. Notwithstanding that the 3-year period had expired before Mr Philippe commenced these proceedings, the court may grant leave under section 151D retrospectively to the time the proceedings were actually commenced (: Whisprun Pty Ltd the Sams [2002] NSWCA 167).

6. The general principles which should guide a court when considering an application for leave under section 151D are longstanding. They 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].

7. In Itek Graphix, Ipp A-JA (Spigelman CJ and Sheller JA agreeing) said that in limitation legislation such as s.151D, where a broad discretion is conferred to grant to sue after expiry of the limitation period, the general question that has to be asked is what and what is fair and just (per Gleeson CJ in the case of Salido), or what does the justice of the case require (per McHugh J in the case of Brisbane South Regional Health Authority). Ipp A-JA said in answering such a question, the justice of the case must be evaluated by reference to the rationales of the limitation period that has barred the action, including the 4 rationales to which McHugh J referred. His Honour had stated earlier in his judgment that McHugh J had identified 4 broad rationales for the enactment of limitation periods generally, and they were: (a) as time goes by relevant evidence is likely to be lost; (b) it is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed; (c) it is desirable for people in the community to be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Many in the community have a significant interest in knowing that they have no liabilities beyond a definite period; and (d) the public interest requires that disputes be settled as quickly as possible. Ipp A-JA also said that often, a failure satisfactorily to explain the delay will not be decisive. Ordinarily, the issue of prejudice will be of paramount importance.

8. In Howley, as I have said, McColl JA summarised the relevant principles applicable to s.151D. One general principle identified by her Honour was that the effect of Brisbane South is that an application for an extension of time under limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant, and that significant prejudice means such prejudice as would make the chances of a fair trial unlikely.

B. The nature of the evidence and representation before me

9. The evidence before me consisted of 2 affidavits sworn by Mr Philippe, one affidavit sworn by his solicitor (with exhibits) and one affidavit of the defendant’s solicitor (with an annexures).

10. Both parties were represented by counsel. Mr M A Cleary, counsel for the plaintiff, provided a written outline of submissions. Mr Best counsel for the defendant, provided a detailed chronology by way of an aide memoire. Both counsel made oral submissions.

C. The statement of claim, statement of particulars and the defence

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

12. In his statement of claim, the plaintiff has pleaded the material facts of the incident as follows (at paragraph 4):

“On or about 30 October 2007, in the course of his employment with the Defendant, the Plaintiff was moving a heavy lounge upon a two-wheeled trolley, with the lounge orientated vertically in accordance with standard protocols. In the course of this activity, an identification sticker dislodged from the lounge (being something that regularly occurred in the warehouse), landing upon the concrete floor of the warehouse, and causing the Plaintiff’s left foot (which inadvertently stepped upon the dislodged identification sticker) to slip, by reason of which the Plaintiff lost balance. As a result of this, whilst attempting to maintain control over the large and heavy lounge on the two-wheeled trolley, the Plaintiff’s spine was subjected to extreme forces and the Plaintiff suffered a significant low back injury.”

13. In pleading a breach of duty of care, the plaintiff alleges this about the risk of harm (paragraph 6):

“The risk of harm was that the Plaintiff would suffer injury as the result of being required to physically manoeuvre a large and heavy lounge vertically on a two-wheeled trolley in circumstances where the Plaintiff was unable to maintain secure footing by reason of the identification sticker which dislodged and landed on the floor, with the likely result of serious injury being sustained by the Plaintiff.”

14. The particulars of negligence include (paragraph 9):

1. Failing to provide and maintain a safe system of work;

2. Devising a system of work involving the manoeuvring of large and heavy sofas on two-wheeled trolleys, with the lounges orientated vertically, being an inherently unsafe system of work;

3. Devising a system of transporting large lounges on two-wheeled trolleys when it had the foreseeable risk of injury to workers, due to the inherent instability of lounges being transported in that fashion;

4. Failing to ensure that identification stickers were firmly affixed to lounges;

5. Failing to take steps to avoid the dislodging of identification stickers from lounges;

6. Failing to provide mechanical assistance (such as a forklift) to be used to move large and heavy lounges;

7. Failing to conduct any or any adequate risk assessment of the subject work activities;

15. By its defence, the defendant “admits the plaintiff suffered a compensable work-related injury arising out of or in the course of his employment on 30 October 2007” but otherwise does not admit the material facts pleaded in paragraph 4 of the statement of claim, which I set out above.

16. The defendant pleads, and it is common ground, that it has made payments to, for and on behalf of the plaintiff pursuant to the provisions of the Workers Compensation Act 1987.

17. In his statement of particulars filed with the statement of claim, Mr Philippe says that he received injury to his lumbar spine, suffers a sleep disorder and has psychological sequel which have resulted in continuing disabilities of pain, discomfort and restriction of movement of the lumbar spine, significant sleep interference, inability to engage in pre-accident employment, interference with ability to perform tasks of the personal and domestic nature, depressed mood, interference with ability to perform personal tasks such as showering, hairdressing and dressing and the need for ongoing medical treatment.

18. Mr Philippe gives particulars of his past economic loss as follows. At the time he received his injury he was typically earning a base salary of $500 net per week. He was also studying towards an apprenticeship as a plumber and was contracted with New South Wales Waratahs Rugby Union Club. Following the injury, he was absent from his employment for approximately 4 weeks before returning on light duties until, on an authorised lunch break, on 7 December 2007 he was involved in a minor motor accident. (The date here is an obvious mistake – it should be 17 December 2007.) He says that thereafter he was unable to return to any form of employment until attempting like plumbing work in 2010 with his brother-in-law, Fred for a period of 2 weeks only. He says that on 3 September 2019 he underwent surgery performed by Dr Steele in the form of an L5/S1 disc arthroplasty procedure. (I understand that is common ground.) He alleges that his capacity for any form of employment has been very significantly diminished by reason of the subject injuries. He claims that he has suffered economic losses including (a) loss of earnings made from the defendant at not less than $500 net per week; (b) loss of earnings of an advanced apprentice plumber, and ultimately tradesmen plumber; and (c) loss of earnings of a professional rugby union player, noting that the subject injuries occurred early in his career and that but for the injury he had prospects of progressing to a successful career in Super Rugby at the Waratahs. Factoring in the above he claims past economic loss of the rate of $2,000 net per week to date, together with 11% for past loss of superannuation. He claims a future loss of earning capacity at the rate of $1500 net per week to age 67, less 15% for vicissitudes was 14% loss of superannuation. He also claims the Fox v Wood component at 20%.

D. The chronology of events

19. It is necessary to consider the chronology of events from the date of the injury (30 October 2007) up to the time Mr Philippe commence proceedings (5 July 2024). The events are set out in the affidavits I have referred to or in the documents exhibited or annexed to those affidavits. The chronology is as follows.

20. Mr Philippe was injured at work on 30 October 2007.

21. On 31 October 2007 Mr Philippe attended Superscan Radiology & Nuclear Medicine on referral by Dr C Fernandopulle. X-rays were taken of his thoracic spine and lumbosacral spine. The radiologist reported that the clinical history was “lower back pain”.

22. On 1 November 2007 entries were made in the daily record of the patient medical history of Mr Philippe at Bankstown medical Centre. The person who made the record is not identified in the evidence, nor is the source of the information. In any event, the entry includes: “Pulled his upper back yesterday while lifting furniture – saw his doctor and had x-ray of thoracic and lumbar spine – nothing broken – still painful”.

23. On 7 November 2007:

23.1 The defendant wrote to Mr Philippe stating, amongst other things: “this letter is to confirm that we have received your notification of injury on 30^th October 2007”. The letter invited Mr Philippe to complete an Allianz Claim Form and return it to the writer should he wish to put in a claim.

23.2 The defendant’s workers compensation insurer, Allianz, wrote to Mr Philippe stating, amongst other things under the heading “Date of injury: 31/10/2007”: “this is to advise that Allianz Australia Workers Compensation (NSW) Ltd has received notification of your workplace injury, and your claim number is”.

23.3 The defendant received a WorkCover NSW Medical Certificate, which I assume was passed on to its insurer because it has been produced in evidence. The certificate was signed by Dr Alkudi. The date of the injury was given as 30 October 2007. How the injury occurred was stated as “pulled his back while lifting furniture”. The diagnosis stated as “upper and lower back strain”.

24. On 22 November 2007 a WorkCover NSW Medical Certificate was provided to the defendant. The certificate was signed by Dr Chugh. The date of injury was given as 31 October 2007. How the injury occurred was stated as “back sprained”. The diagnosis stated as “back injury”.

25. On 11 January 2008:

25.1 A WorkCover NSW Medical Certificate was provided to the defendant. The certificate was signed by Dr Chalasani. The date of injury was given as 17 December 2007. How the injury occurred was described as: “injured his back on 17 December 2007 when he was a passenger in a car driven by his fiancée during lunch break at his work”. The diagnosis was given as “back pain – muscular strain”.

25.2 The defendant lodged an electronic notification with its insurer, Allianz, about the motor vehicle accident on 17 December 2007.

26. On 16 January 2008 Mr Philippe signed an Allianz Workers Compensation Claim Form. The form states that it was given to the employer and to the insurer on 23 January 2008. It has a “received” stamp on it dated 24 January 2008. The date of injury is stated as 17 December 2007. The part of the body stated to be injured was “back”. The injury details were described in handwriting as “lifting a lounge and it is believed the car accident during work hours brought the pain back”.

27. Between April to July 2008, the Plaintiff came under the care of psychologist, Robert Gachon Psych Plus Pty Ltd in Parramatta.

28. In July 2008, the Plaintiff consulted Neurosurgeon, Dr J M Matheson in Sydney on behalf of the Defendant. Dr Mattheson was of the view the Plaintiff’s injuries had not stabilised for assessment of whole person impairment at that stage.

29. On 18 August 2009, Sanford legal, solicitors of Burwood wrote to Allianz Workers Compensation Ltd stating that they had instructions to act for Mr Philippe in relation to a request for previous claims. In their letter they referred to the date of injury of 17 December 2007 and asked Allianz to advise whether Mr Philippe had made any previous claims against Allianz, of which they sought details. The letter enclosed a signed authority from Mr Philippe of the same date.

30. In about September 2009, the Plaintiff came under the care of General Practitioner, Dr George Kassar in Bankstown.

31. In about October 2009, Dr Kassar referred the Plaintiff to Orthopaedic Surgeon, Dr Rosenberg. Dr Rosenberg indicated surgical intervention as the last resort in the form of an anterior discectomy would be required.

32. In February 2010, Dr Kassar referred the Plaintiff to see neurosurgeon, Dr Mark Davis in Kogarah for a second opinion on the need for spinal surgery.

33. On 10 May 2010, David Legal, solicitors of Fairfield, wrote to Allianz advising that “we now act for the above named claimant”, said to be Mr Philippe in relation to the date of injury of 17 December 2007. They asked for all medical reports from treating doctors and all correspondence to and from the claimant open quotes and all other documents relating to injuries received by our client in the employment of your client”.

34. On 19 May 2010, David Legal, wrote again to Allianz referring to Allianz’s letter of 17 May 2010, this time enclosing Mr Philippe’s authority and asking again for the requested documents. The authority signed by Mr Philippe and provided to Allianz stated “You are hereby authorised and directed to forward all medical reports from treating doctors, all correspondence to me (and from me), and all other documents which you hold relating to injuries received by me in the employment Of Fantastic Lounge Factory, to my solicitors, David Legal solicitors 3/43 Harris Street Fairfield”.

35. In about May 2010, the Plaintiff consulted upon Dr Davis. Dr Davis agreed surgical intervention was required if ongoing conservative treatment such as ongoing physical therapy and cortisone injections was not successful to manage the Plaintiff’s ongoing pain and restrictions.

36. On 18 March 2011, Mr Philippe signed an “Employee’s Recurrence Claim Form” which was provided to Allianz. The date of the original injury was stated as 30 October 2007. The nature of the original injury was described as “disc damage to the lower back” and the part of the body injured was stated to be “lower back”. The date of the recurrence of injury was stated to be 9 March 2010. As to how the recurrence of injury occurred it was stated “notice that I couldn’t attend to any duties without my lower back being in pain”. What we’re doing when the recurrence of injury occurred “plumbing”. The injury condition and parts of body injured was stated to be “3 seater lounge fell on my back as I tried to resist the lounge, I felt pressure down my lower back and leg”. The recurrence is stated to be sued sustained with a different employer, one named Plum Group.

37. In May 2011, the Plaintiff consulted Orthopaedic Surgeon, Professor Ehrlich on behalf of the Defendant. Professor Ehrlich was of the view that spinal fusion would be a possibility in the future if symptoms persisted but was not appropriate at that time.

38. On 27 May 2011 Professor Ehrlich provided Allianz with a detailed 5 ½ page report of his consultation with Mr Philippe that day. The letter commenced by stating that Professor Ehrlich had been provided with at least 20 listed documents for his review, the first of which was a referral letter with instructions from Allianz, the 2^nd of which was a workers compensation claim form from Mr Philippe dated 15 January 2008, the 3^rd of which was a notification of injury from Mr Philippe dated 11 January 2008, the 4^th of which was a letter from Mr Philippe to Mr David Svec, not dated, the 5^th of which was a questionnaire response from Allianz to Ms Rima Moussa (an employee of the defendant) dated 12 March 2008, the 6^th of which was a letter from the defendant to Mr Philippe dated 8 August 2008, the 7^th and 8^th of which were surveillance reports and case notes, the 18^th document was a workplace assessment report by rehabilitation consultants dated 3 March 2008, the 19^th document is an initial assessment report from the same rehabilitation consultants stated 8 April 2008. The balance of the documents appear to be medical records, reports and certificates, apart from the recurrence form from Mr Philippe dated 18 March 2011. Quoting directly from Professor Ehrlich’s report, it included the following:

38.1 Under the heading “History”: “He said that his relevant injury occurred on 30 October 2007 when he was wheeling a lounge. As he did this he somehow slipped and wrenched his back which was followed by an instant searing pain down his left lower limb as far as the ankle. He said that it was only momentary and he had to limp for a while but over lunch the discomfort settled and he was able to complete the days work. Overnight the pain became much worse and he could barely move.”.

38.2 Under the heading “Opinion”: “This gentleman should be considered to have sustained a significant back strain in the incident of October 2007. I do not believe there was any significant worsening in the car accident 6 weeks after that event, but symptoms have persisted since. … Lumbosacral anterolisthesis is often associated with some disc damage at that level and if one accepts his account of events as being truthful (and it was delivered without any equivocation) then it would be difficult to deny the proposition that a significant degree of damage occurred to the lumbosacral joint in the October 2007 incident.” …. “If his symptoms were at a significantly more severe level than the possibility of, say, lumbosacral fusion, might be considered but I do not believe that this is appropriate for this young man at this stage.”.

38.3 In response to the specific question “In your opinion, is this recurrence related to the workplace injury of 17/12/2007?”: “The significant workplace injury was actually 6 weeks earlier on 30 October, he said. The car accident on 17 December 2007 may have produced a temporary aggravation of the problem which, apparently, had been well-established since the October incident.”. And in response to the following question: “The main contributing factor is the incident of 30 October 2007 when he was wheeling the lounge”.

39. The Plaintiff continued with conversative treatment until he attended upon Dr Rosenberg again on about 14 July 2011.

40. On 18 August 2011 by letter, Dr Rosenberg formally requested approval for spinal surgery.

41. On 26 August 2011 by letter, the workers compensation insurer declined liability for lumbar spine surgery.

42. On 15 June 2012 Peter Ruggeri and Associates, solicitors, wrote to Allianz setting out an offer to agree to a Whole Person Impairment for a combined total of 12%; 5% of which was said to relate to injury to spine (lumbar), and 5% to injury to spine (thoracic).

43. On the same day, 15 June 2012, Mr Ruggeri also wrote to Mr Philippe. He noted that Dr Bentivoglio had assessed Mr Philippe at 12% WPI and that should he proceed to the type of surgery as indicated by Dr Rosenberg, Davies and also Dr Bentivoglio his assessment would be 20% plus. The letter continued:

“However we cannot guarantee that if you were to commence a work place injury claim (i.e. common law claim), you would still need to show that your employer was negligent in not providing a safe system of work whereby you were not required to do the lifting on your own and/or that the workplace was kept cleaner whereby you would not have slipped on the ticketing paper which you instruct caused you to lose your footing.

The amount claimed are the maximum allowable pursuant to the relevant legislation based on the assessments noted in the reports.

We anticipate that the insurer may arrange their own medical assessments. We confirm our prior advice that unless an assessment of 15% WPI or greater is received that you have no common law entitlement to commence proceedings in negligence against your employer.”

44. In his second affidavit, Mr Phillipe said he had no memory of the advice included in Mr Ruggeri’s letter.

45. On 23 August 2012, the Plaintiff attended upon Orthopaedic Surgeon, Dr Michael Shatwell on behalf of the Defendant. Dr Shatwell was of the view that spinal surgery would not assist the Plaintiff at that time.

46. On about 19 September 2012, the Plaintiff consulted Dr Rosenberg who remained of the view that he required lumbar spine surgery.

47. On 5 October 2012 by letter, the workers compensation insurer declined liability for surgery in the form of discectomy and fusion.

48. On 28 November 2012 Peter Ruggeri and Assoc Lawyers lodged an Application to Resolve a Dispute with the Workers Compensation Commission on behalf of Mr Philippe. The matters in dispute were stated to be medical expenses, lump sum compensation where liability in dispute, compensation for pain and suffering and lump sum compensation where degree of permanent impairment in dispute. I quote from parts of the application:

48.1 In Part 4 – Injury Details, the date of injury is stated to be 17 December 2007 and 31 October 2007. The injury description is “Injury to back (L5/S1 disc lesion with bi-lateral radiculopathy, T6/7 disc injury)”. How the injury occurred is described as “Worker injured his back on 31/10/2007 after slipping and wrenching his back whilst lifting a three seater lounge. On 17/12/2007 he further injured his back when his vehicle was hit at the rear by another vehicle.”.

48.2 The claim for Whole Person Impairment was put at a combined total of 12%; 5% of which was said to relate to injury to spine (lumbar), and 5% to injury to spine (thoracic). A letter from Peter Ruggeri and Associates to Allianz dated 15 June 2012 accompanied the application and restated the claimed to a combined total of 12% Whole Person Impairment.

48.3 The application was accompanied by written submissions dated 27 November 2012 prepared by Mr Ruggeri, the plaintiff’s solicitor. The submissions included the following description of both injuries:

“On the 30/10/2007 Mr Philippe Injured his back at work whilst lifting a three seater lounge off a trolley, his left foot slipped on some packaging material on the floor which caused him to awkwardly wrench/twist his back from mid thoracic level to lower lumbar spine Level followed by an instant searing pain down his left lower limb to his ankle.

He continued working that day with difficulty but overnight the pain became much worse and took some two weeks off work.

He returned to light duties till the 17/12/2007 whilst driving to obtain some lunch his vehicle was hit from the left side causing him to further injure his back temporarily aggravating the same and thereafter returning to its pre MVA status not long thereafter.”

48.4 The application was also accompanied by a statement signed by Mr Philippe and dated 20 November 2012.

49. On 11 September 2013, Personal Injury Commission (PIC) Medical Assessor Dr Ian Meakin issued a Certificate following his examination of the Plaintiff on 2 September 2023. Assessor Meakin found that the surgery recommended by Dr Rosenberg was reasonable and necessary as a result of the subject accident with aggravation by the subsequent motor vehicle accident. The surgery was to perform discectomy and fusion via an anterior approach. In his Medical Assessment Certificate, the description of the history relating to the injury as described by Dr Meakin included the following:

“On 31 October 2007 Mr Philippe was lifting a three-seater lounge off a trolley when his foot slipped and he fell and while attempting to stop injuring himself he pushed upwards on the heavy lounge and felt the immediate onset of low back pain.”

50. On 16 October 2013, a Certificate of Determination was issued by PIC, determining, inter alia, that the Defendant is to pay the costs of lumbar spine surgery and all associated medical and related treatment costs.

51. On 18 October 2013, the Plaintiff consulted Dr Kassar and advised he has decided he will proceed with the fusion. The Plaintiff also discussed his ongoing struggles with his mental health.

52. On 10 December 2013, the Plaintiff consulted Dr Kassar to advise he is unable to see Dr Davis due to his limited availability. I take this to be a reference to Dr Davis’ limited availability, not Mr Philippe’s. In his affidavit, Mr Philippe said that Dr Kassar advised him that it was difficult to get appointments with Dr Davis due to limited availability, and so in April 2014 he was referred to Associate Professor Timothy Steele.

53. In April 2014, the Plaintiff consulted Orthopaedic Surgeon, of Associate Professor Timothy Steel. Dr Steel noted that the Plaintiff’s symptoms have been slowly progressing since his accident and sought approval from the workers compensation insurer for a bone scan. Dr Steel also recommended ongoing conservative treatment in the form of cortisone injections to defer surgery as much as possible.

54. Throughout the rest of 2014 and early 2015, the Plaintiff continued under the care of Dr Kassar.

55. In about April 2015, the Plaintiff consulted upon Dr Steel who recommended bilaterial L2/3 facet joint injections.

56. In July 2015, the Plaintiff returned to see Dr Steele reporting ongoing radiculopathy and pain. A CT scan was requested for approval by the workers compensation insurer for ongoing review and investigation.

57. In early 2016 the Plaintiff made an attempt at returning to light duties as a plumber’s assistant, but after attempting this for one month it was clear that he could not manage and so he discontinued that work.

58. Throughout 2016 and 2017, the Plaintiff continued under the care of Dr Krishnakumar Sellathurai at Primary Health Care Medical & Dental Care.

59. In May 2017, the Plaintiff consulted Dr Steel again for a review. It is noted on that occasion that the Plaintiff’s symptoms had intensified in the last month. Dr Steel requested urgent approval of an updated MRI scan of the lumbar spine and various other scans and studies.

60. In August 2017, the Plaintiff returned to Dr Steel who was of the opinion that surgical intervention was not necessary at that time as symptoms had improved over the last few months.

61. Throughout 2018, the Plaintiff continued conversative treatment under the care of his GP Dr Sellathurai.

62. In May 2019, the Plaintiff consulted Dr Steel again who was of the opinion surgical intervention in the form of an L5/L1 anterior lumbar discectomy and insertion of a disc replacement was now necessary. Dr Steel indicated he would seek approval from the worker’s compensation insurer for the surgery.

63. In May 2019, the Plaintiff retained his current solicitors.

64. In May 2019, the Plaintiff attended upon Neurosurgeon, Dr Paul Carney on behalf of the Defendant. Dr Carney was of the view that the Plaintiff was not medically stabilised for the purpose of whole person impairment and found spinal surgery to be reasonable cause of treatment.

65. In June and July 2019, the Plaintiff consulted Dr Steel again various times to discuss the results of his various scans of the lumbar spine.

66. On about August 2019, Worker’s Compensation Insurer approved the request for spinal surgery.

67. On 3 September 2019, the Plaintiff underwent spinal surgery performed by Dr Steel and Associate Professor Ravi Huilgol at St Vincent’s Private Hospital.

68. In January 2020 the Plaintiff consulted Dr Steel’s rooms. Dr Ellen Frydenberg, Spine Fellow to Dr Steel noted that over the last 3 months, the Plaintiff has had ongoing severe pain requiring regular supply of Endone and is stopping him from doing activities of daily living.

69. In mid 2020, the Plaintiff also received a right sided cortisone injection organised by Dr Saeed Kohan.

70. In September 2020 came under the care of Respiratory and Sleep Specialist, Dr David Freigberg.

71. In October 2020, the Plaintiff underwent a supervised diagnosed polysomnogram and it was noted he was obese at that time, having gained 30% of his body weight subsequent to his accident as a result of immobility by reason of his injuries in the subject accident.

72. In November and December 2020 the plaintiff continued to consult Dr Freigberg for ongoing care and management of his severe obstructive sleep apnoea.

73. In December 2020, the Plaintiff consulted Dr Steel who records that despite it being over twelve months since his surgery, the Plaintiff still has significant symptoms and had developed pains around both hips. Dr Steel recommended further scans and recommended another urgent cortisone injection of the spine.

74. In February 2021, the Plaintiff underwent further left L5-S1 facet join injection.

75. In May 2021, the Plaintiff underwent CPAP therapy for his sleep apnoea and it was noted that he was still hypersomnolent but it had gone from severe to mild.

76. On 10 November 2021, the plaintiff was examined by Dr David Freiberg, Respiratory & Sleep physician for medico-legal purposes.

77. On 10 December 2021, the plaintiff was examined by Dr Vijay Maniam, Orthopaedic Surgeon for medico-legal purposes.

78. On 7 February 2022, the plaintiff was examined by Dr John Bentivoglio, Orthopaedic Surgeon for medico-legal purposes on behalf of the defendant.

79. On 21 February 2022, by way of letter, a letter of claim pursuant to Section 66 of the Workers Compensation Act 1987 NSW was made for 33% whole person impairment in reliance of Dr Freiberg’s report dated 10 November 2021 and Dr Maniam’s report dated 13 December 2021.

80. In May 2022, the Plaintiff was examined by Dr Anthony Johnson, Respiratory & Sleep Physician for medico-legal purposes on behalf of the Defendant.

81. On 29 July 2022, by way of later, the insurer conveyed a Permanent Impairment counter offer of 34% whole person impairment and served the reports of Dr Bentivoglio dated 17 February 2022 and 16 March 2022 and Dr Anthony Johnson dated 30 Jun 2022.

82. On 10 October 2022, the Plaintiff accepted the insurer’s offer of 34% whole person impairment and the s66 claim was resolved accordingly by way of a Complying Agreement.

83. On 30 January 2023, the Plaintiff was examined by Dr Porteous, Occupational Physician for medico-legal purposes.

84. In September 2023, Ms To, the solicitor who has current conduct of the matter for Mr Philippe, took over carriage of the matter.

85. On 3 October 2023, the Plaintiff conferred with Ms Gardiner and Mr Mark Cleary of counsel.

86. On 14 November 2023, by way of letter, a Notice of Claim for work injury damages pursuant to Section 282 of the Act was served on the defendant. The notice included the following description of the injury:

“The plaintiff sustained significant injury as a result of slipping on a sticker whilst he was in the process of wheeling a trolley with a lounge at the defendant's premises in Fairfield. It is alleged that the sticker which was used to identify where the lounges in the docking area was to be transported to have fallen away from one of the lounges and onto the floor causing a slipping hazard.”

87. On 28 November 2023 the defendant requested further and better particulars of the claim.

88. On 29 November 2023 the plaintiff’s solicitors provided particulars. Those particulars included that a witness to the plaintiff’s injury was his supervisor, Colin Auld; and that the plaintiff’s supervisors at the time of the injury were Gary Gannon and Colin Auld.

89. On 12 December 2023, the Plaintiff was interviewed by Vocational Assessor, Mr Steven Buddle for medico-legal purposes.

90. On 25 January 2024, a pre filing statement was served, which has the statutory effect of stopping running of time.

91. At some stage prior to early March 2024 or thereabouts, the defendant’s solicitors commissioned The Procare Group to undertake factual investigations of Mr Philippe’s work injury damages claim.

92. On 6 March 2024, Mr Andrew Katz of The Procare Group provided a report to the defendant’s solicitors, titled “First Factual Report”. Some features of the report are:

92.1 In the body of the report, under the heading “Scene”, the investigator noted that the plaintiff was employed at the insured’s warehouse located at 71 Seville Street, Fairfield East and that the insured still occupies that site. The investigator stated that they had been advised that whereas in 2007/2008 the site manufactured and dispatched lounges, changes were made a couple of years ago with the activities on the site being split into 2 entities. Apparently one entity manufactures lounges on the site and the 2^nd receives imports, and dispatches both imports and manufactured items to the insured’s stores.

92.2 The report included a statement from Jennifer Ringor dated 1 March 2024. Ms Ringor or is currently employed in the role of head of health, safety and well-being for the defendant and has been employed by the defendant for about 18 months. In her statement Ms Ringor said that she had been contacted by Mr Katz and “asked to provide copies of documents relevant to Mr Philippe’s employment and workers compensation claim”. The statement went on, and I quote:

“7.    Upon receipt of that request, I contacted various teams within Fantastic, and sought responses regarding the availability of documentation.

8.    After receiving responses from the team, I can confirm that Fantastic do not have copies of Mr Philippe's personnel file, training and induction records, job description (at the time), contract of employment, or any wage records for him. We are required to hold those documents for 7 years, and those records have been securely destroyed.

9.    I also confirm that we do not have any first aid records or copies of any incident/injury reports for injuries in October 2007 and January 2008, as those documents have been securely destroyed.

…

12.   A search of our records, and enquiries with current employees confirm, that Gary Gannon finished employment with Fantastic about 10 years ago, and we do not have a forwarding address”

92.3 The report included a statement of Cam Huynh dated 4 March 2024. He was then employed by the defendant as a component supervisor. He had been with the defendant for about 29 years in total. He worked in the factory located in several Street and had previously worked in the role of supervisor “in the timber section, for about 25 years”. He said that this was a different section to the dispatch area of the site and that the supervisors of that area were Colin Auld and Gary Gannon, both of whom are no longer employed by the defendant. Mr Huynh described the induction training given to new employees at the present time and said that “However, in 2007/2008, new employees were inducted onto the site and trained by the supervisors. The employee would then be placed with an experienced employee, for ‘hands-on’ training on the work system, and methods”. He said that his recollection of the system of work and dispatch in 2007/2008 came from his observations only, as he was working in a different section. He did recall that the warehouse operators would take the lounges from the line and place them into bays, which were marked in chalk, and with the names of the stores that they were to be dispatched to. He was asked about “labels” that were used in 2007/2008 and was able to provide a reasonably detailed description (paragraphs 12 to 15 of his statement). He ended by the describing the way that wrapped lounges were tipped onto a 2-wheel trolley by the warehouse operator, by tipping them into an upright or vertical position; the lounge was then wheeled into a designated bay for dispatch.

92.4 The report included a statement from Veli Sivac dated 4 March 2024. At the time he was employed by the defendant as a warehouse operator, working in the dispatch area of the Seville Street warehouse. He had been with the defendant since 2007. He was able to describe the induction training he received from Colin Auld and Gary Gannon when he commenced work. He was also able to describe in reasonable detail the system in place in 2007/2008 for moving lounges and the use of labels in the dispatch area.

92.5 The report included a “conversation log” of a telephone conversation between Mr Katz and Mr Colin Auld on 4 March 2024 Mr Auld said that he could recall Mr Philippe but could not recall any injury. He could not recall witnessing an incident where Mr Philippe was moving a lounge on the hand trolley, when his foot slipped on a tag, and he tried to regain his balance and hurt his back. Mr Auld said that in 2007 he was a supervisor and if he had seen any such incident or it had been reported to him, he would have filled out an injury report form. He has no memory of doing that. He was able to provide some information about the method used for site induction for a new employee in 2007, but he could not recall who trained Mr Philippe or what training he received. Mr Auld does not appear to have been asked about the use of labels in 2007. Mr Auld did not know the whereabouts of Gary Gannon and the last time he had spoken to him was about 3 to 4 years before. When asked if he would provide a written statement, Mr Auld said that he did not want to get involved.

92.6 In the body of his report, Mr Katz said that he had not had any success in locating Mr Gannon.

93. On 7 March 2024, a pre-filing defence was served by those representing the defendant.

94. On 4 June 2024, a work injury damages mediation took place in the Personal Injury Commission, but settlement could not be achieved.

95. On 5 July 2024, the plaintiff commenced these proceedings by filing a Statement of Claim.

E. Legal advice received by Mr Philippe

96. The above chronology shows that Mr Philippe consulted Sanford Legal, solicitors in August 2009 and David Legal, solicitors in May 2010. The evidence does not reveal what, if any, advice either of those solicitors gave Mr Philippe about his common law rights.

97. The chronology also shows that by June 2012, Mr Philippe had retained Peter Ruggeri and Associates, solicitors. Those solicitors continued to act for him throughout 2012. At the time they were acting for Mr Philippe the medical evidence established that Mr Philippe had a 12% whole person impairment. It is common ground that he had no entitlement to bring a claim for work injury damages to vindicate his common law rights unless he had an assessment of at least 15% whole person impairment. Mr Ruggeri confirmed this in his letter to the Philippe on 12 June 2012, the details of which I set out. In his second affidavit, Mr Philippe said that he had no memory of the advice given in the letter – something that strikes me as unremarkable given the passage of time. He also said that having read the letter again, it is consistent with the advice that his current lawyers gave him and which led him to agreeing to pursue a work injury damages claim.

98. In his first affidavit Mr Philippe said that his solicitors have explained to him that generally there is a “limitation period” of 3 years from the date of an injury or accident, and that court proceedings are usually required to be commenced within that period he said that it has further been explained to in the court that the court has a discretion pursuant to section 151D to grant leave for proceedings which are commenced outside this 3 year period.

F. The parties’ submissions and my analysis

99. It is common ground that Mr Philippe has an arguable case. It follows that the strength or otherwise of his claim does not factor into my decision.

100. Counsel for Mr Philippe submitted that in essence the fundamental explanation for delay is that it was not until the plaintiff underwent spinal surgery on 3 September 2019, and subsequently agreement as to whole person impairment was reached in October 2022, that the necessary foundation of pursuing a work injury damages claim was established. He submitted that the course of events between this 2007 accident and the commencement of these proceedings is comprehensively explained in the evidence presented to the court. Counsel submitted that the plaintiff had provided an acceptable explanation of delay.

101. On the question of the explanation for the delay, counsel for the defendant submitted that it had to be sufficient and acceptable. Counsel submitted that the explanation was lacking in that the plaintiff’s evidence did not address the question of what if any legal advice Sanford Legal solicitors and David Legal solicitors had given Mr Philippe in 2009 and 2010 about time limits and pursuing his common law rights. Criticism was also made of the fact that the plaintiff’s current solicitors did not provide evidence of what advice they had given Mr Philippe.

102. Counsel for the defendant did not submit, and upon enquiry disabused any notion of suggesting, that the plaintiff had been advised of his common law rights and had made a conscious and deliberate decision not to pursue them.

103. The letter from Mr Ruggeri in June 2012 provides clear evidence of the advice that Mr Philippe was given at that time. It is totally unsurprising that Mr Philippe would not remember being given that advice. Further, it appears that both counsel agreed that the advice was entirely orthodox and unsurprising in itself.

104. Having regard to all of the evidence, most of which I have referred to in the chronology of events, and the party submissions, I am satisfied that the plaintiff has provided an acceptable and sufficient explanation for delay.

105. The question of prejudice arises in the context, as I said at the outset, that there has been a very long period of delay. The delay between the date of injury and the commencement of proceedings was 16 years 2 months and 25 days, allowing for the time that did not run under the relevant statute. By the calendar it was 16 years and 8 months.

106. This brings into consideration each of the 4 rationales identified by McHugh J that as time goes by relevant evidence is likely to be lost; it is oppressive to the defendant to allow an action to be brought long after the circumstances that gave rise to it have passed; it is desirable for people in the community to be able to arrange their affairs and utilise the resources on the basis the claims can no longer be made against them; and the public interest requires that disputes be settled as quickly as possible.

107. Counsel for the plaintiff submitted that in essence there has been no prejudice to the defendant caused by the delay from a medical investigation standpoint because the defendant and its insurer were notified of the injury when it occurred and have had the opportunity to have the plaintiff examined from time to time as a result of his pursuit of his right to claim for weekly payments and medical expenses under the workers compensation scheme. In the course of doing that, it was also submitted the defendant has in effect been informed about what the plaintiff alleges is the mechanism of injury.

108. As I understand it, given the chronology of events I have set out, the defendant did not suggest that it was prejudiced by losing the opportunity to have Mr Philippe medically assessed from time to time.

109. Counsel for the defendant did submit, however, that the defendant has been prejudiced and will be prejudiced if the matter goes to hearing by reason of the fact that it did not undertake any factual investigations from a negligence point of view, as opposed to the much simpler enquiry required upon receipt of a workers compensation claim, until after the plaintiff gave notice of a claim for work injury damages in November 2023 with the consequence that relevant records and evidence has been destroyed, at least one important witness cannot be located and the passage of time has no doubt affected the memories of those who can.

110. The factual investigation report, including the witness statements referred to in it, which I have referred to in the chronology demonstrates that documents have been destroyed and Mr Gannon, who the plaintiff alleges witnessed his accident and both parties agree was his supervisor at the time, cannot be located. However, the chronology also demonstrates that there are witnesses who still work for the defendant who profess to have reasonable, and perhaps even good, recollections of the system of work that was in place at the time of Mr Philippe’s injury. In this context it is also important, in my view, to recognise that the workplace and the system of work, as described by both the plaintiff and the persons interviewed by the investigator for the defendant, was a relatively simple setup and operation. To the extent that documents have been destroyed, there are unlikely to have been any detailed written instruction manuals or induction manuals in light of the statements of Mr Sevic and Mr Huynh.

111. The defendant submitted that it was understandable that factual investigations had not been carried out earlier because of the way the plaintiff had described the incident when pursuing his workers compensation claim. It was submitted that the first reference to the plaintiff having “slipped” did not occur until 28 November 2012 when Mr Ruggeri lodged an application to resolve a dispute with the Workers Compensation Commission, and that there was no reference to “slipping on a sticker” until November 2023 when serving a notice of claim for work injury damages. The suggestion was that the defendant was not on notice that it was advisable to undertake factual investigations and preserve records to guard against the possibility of a common law claim.

112. Upon closer examination of the evidence, it is not correct to say that the first reference to slipping was in November 2012 and the first reference to slipping on a sticker was in November 2023. I have sought to highlight the earlier and other references to those matters in the chronology. The first reference to slipping in documents provided to the defendants insurer was in the report of Professor Ehrlich 27 May 2011. I have set out the details of his report in the chronology. The most critical document, however, in my view were the written submissions dated 27 November 2012 prepared and provided by Mr Ruggeri with the application to the Commission of 28 November 2012. I have quoted from it in the chronology. The description of the injury set out there is very similar to the description provided in the statement of claim commencing these proceedings. In his certificate of 11 September 2013 the Personal Injury Commission medical assessor Dr Meakin described the history of slipping.

113. Counsel for the plaintiff submitted that Professor Ehrlich’s report of 27 May 2011 should have at least given a hint, or perhaps raised a red flag or alarm that there was a distinct possibility that Mr Philippe may wish to pursue a common law claim given the description of the history of his injury, Professor Ehrlich’s opinion of a significant back strain, his comment that if his symptoms were at a significantly more severe level then the possibility of lumbosacral fusion might be considered, and his attribution of the cause to the injury that occurred on 30 October 2007. A 2^nd red flag or alarm would have or should have been raised by Mr Ruggeri’s submissions of 27 November 2012. And a third and possibly larger red flag or louder alarm, should have been registered with the medical assessor’s certificate of 11 September 2013 finding that there was a need for surgery caused by the lifting accident. I agree with those submissions.

114. This somewhat undermines the defendant’s complaint that it has suffered and will suffer prejudice by reason of not being able to make factual investigations at an earlier point in time.

115. On balance, for those reasons in particular, but having regard to all of the submissions by the parties, in my view it is fair and just, or the justice of the case requires, that Mr Philippe ought to be allowed to pursue his claim for work injury damages.

116. For those reasons, he ought to be granted leave.

117. In the event that the court granted leave, the plaintiff proposed that the costs of the application be costs in the cause. The defendant did not seek to argue against that.

G. Orders

118. I make the following orders:

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

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

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Decision last updated: 13 March 2025