Sharon Ann Roberts v King Tomislav Croatian Club Ltd

[2019] NSWDC 121

District Court

New South Wales

Medium Neutral Citation:	Sharon Ann Roberts v King Tomislav Croatian Club Ltd [2019] NSWDC 121
Hearing dates:	8 April 2019
Date of orders:	15 April 2019
Decision date:	15 April 2019
Jurisdiction:	Civil
Before:	J Smith SC DCJ
Decision:	(1) Plaintiff be granted leave to commence proceedings pursuant to s 151D(2) of the Workers Compensation Act 1987 (NSW) as from 24 August 2018 nunc pro tunc. (2) Costs of the plaintiff’s notice of motion dated 30 November 2018 be costs in the cause.
Catchwords:	PROCEDURE – application to commence proceedings under s 151D of the Workers Compensation Act 1987 – extensive delay in bringing proceedings – plaintiff’s ability to bring proceedings at the time due to injury – application allowed.
Legislation Cited:	Workers Compensation Act 1987 (NSW)
Cases Cited:	Brisbane South Regional Health Authority v Taylor (1986) 186 CLR 541 Gower v State of New South Wales [2018] NSWCA 132 Hunter Valley Developments v Cohen (1984) 3 FCR 344 Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477
Category:	Procedural and other rulings
Parties:	Sharon Ann Roberts – Plaintiff King Tomislav Croatian Club Ltd - Defendant
Representation:	Counsel: Mr J Dodd – Plaintiff   Solicitors: NSW Compensation Lawyers - Plaintiff Mr M Strachan, Hicksons Lawyers - Defendant
File Number(s):	2018/260995
Publication restriction:	No restriction

Judgment

1. In January 2004 the plaintiff was a casual employee of King Tomislav Croatian Club Ltd.

2. On the 18th of that month, after the club had closed to the public and as the staff were on their way out, there was an armed robbery at the club. The plaintiff had a gun held to her side by one of the robbers, she was pushed to the floor, and a gun was discharged causing plaster from the ceiling to fall onto her. As a consequence of those events the plaintiff claims that she has suffered psychiatric injury including PTSD. Her claim for workers compensation payments was accepted in 2016 on the basis of a 24% WPI (whole person impairment). On 24 August 2018 the plaintiff filed a Statement of Claim in this Court seeking work injury damages within the meaning of the Workers Compensation Act 1987 (NSW).

3. Section 151D of that Act relevantly provides:

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

4. The date on which the injury was received was 18 January 2004. The period of 3 years referred to in s 151D(2) expired on 18 January 2007. However, by notice of motion filed on 3 December 2018 the plaintiff seeks an order that she be given leave to bring these proceedings.

5. The first detailed consideration of s 151D by the NSW Court of Appeal was in Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207.

6. In that case, Ipp AJA explained, at [71], that Pt 5 of the Act (in which s 151D appears) is a scheme whereby the rights of persons claiming common law remedies from employers are limited and strictly controlled. The general tenure of the part indicates that Parliament, generally speaking, intends that claimants will have to exercise their rights to common law remedies in a closely defined way during the stipulated period, subject to the immediate leave provision contained in s 151D(2).

7. At [87] his Honour said:

“In my opinion in limitation legislation such as 151D(2) of the Workers Compensation Act were a broad discretion is conferred to grant leave to sue after expiry of the limitation period the general question that has to be asked is what is fair and just. Or what does the justice of the case require? 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 four rationales to which McHugh J referred.”

8. The rationales referred to by his Honour in that paragraph were set out at [78] in his judgment and explained by McHugh J in Brisbane South Regional Health Authority v Taylor (1986) 186 CLR 541 at 522:

“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 had 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. Meaning the community have a significant interest in knowing that they have no liabilities beyond a definite period;

d) the public interest requires that disputes be settled as quickly as possible.”

9. It may be noted that there are provisions in the Workers Compensation Act, such as s 151H that are anti-pathetic to the rationales for a limitation period identified by Justice McHugh in Brisbane South Regional Health Authority; see Gower v State of New South Wales [2018] NSWCA 132 at [186] (White JA). As the reasons in Gower reveal, the specific context of that Act must be borne in mind when determining whether to grant leave to bring proceedings.

10. In Gower Basten JA explained, at [4], that in order to obtain leave to commence proceedings out of time the appellant in that case had to establish three propositions:

1. there was a sufficient and acceptable explanation for each period of delay;

2. he had a reasonably arguable claim of negligence against the State; and

3. the conduct of a trial more than 12 years after the injury was suffered would not cause the State significant prejudice so as to render the trial unfair.

11. Those are matters that are commonly taken into account by courts considering the exercise of a power to extend a limitation period (see, for example, Hunter Valley Developments v Cohen (1984) 3 FCR 344. Although they are not necessarily the only matters that are, or may be, taken into account, neither party here suggested that there was anything else to be considered on the facts of this case.

The facts

12. The facts are found in 2 affidavits relied on by the plaintiff. It is useful to set out the principal facts that are established on that evidence by means of the following chronology prepared by the plaintiff:

“1962 Jan 3	Plaintiff’s (P) date of birth (now 57 years old)
2000 Apr 29	P employed by Defendant (D) as Bar and Gaming Attendant part time until 6 January 2002 P also employed full time at St Johns Bowling Club
2003 Sept 11	P re-employed by D
2004 Jan 18	P held up by armed robbers – off work for a number of shifts
Jan 19	P provided statement of NSW Police
Feb 6	D provided P with one counselling session
2004/2005	P drinking alcohol increasingly
2005 Nov 21	P subpoenaed to appear at trial of alleged robbers
2005 Nov 22	P ceased working for D – P left home and lived in her car
2006 Feb 7	P ceased working for St Johns Bowling Club
2008	P worked at sons’ school as teachers’ aide for 2 or 3 months
2009	P admitted to Corella Lodge for alcohol counselling
2010 Apr 10	P consults Dr Lopatko re excessive alcohol intake
2010 May 26	P completes 28 day Rehabilitation Program at Concord Hospital
Aug 17	P consults Dr Williams re excessive alcohol intake
2012 June 8	P charged with assaulting police officer
June 9	P treated in Emergency Department of Concord Hospital
Oct 7	P consulted Dr Furst regarding the assault – diagnosed with PTSD
Nov 7	Magistrate finds P mentally disabled
2014	P consults Dr Pukanic
May 30	P consults solicitor at NSWCL
June 5	Dr Pukanic completes WorkCover Certificate
June 6	Workers Compensation Insurer (QBE) of D backdates weekly benefits and payment of medical expenses to this date
June 10	P completes Workers Compensation Claim Form
July 1	P first consults Dr Stephenson
Sept 4	Claim Form and other documents submitted to QBE
Oct 15	P provides statement to investigators appointed by QBE (dated 7 November 2014)
Oct 24	NSW Police provide report re robbery of 18 January 2004
Nov 7	Abi Factual Investigation Report to QBE
Nov 10	D provides P’s employment details to Abi
Nov 18	Dr Martin qualified for QBE
Dec 3	QBE accepted P’s workers compensation claim
2015 May 22	WIRO funding obtained to investigate claim
July 6	P admitted to Wesley Hospital (Westmead) for treatment of PTSD and alcoholism for 3 weeks
2016 May 17	Dr Bertucen qualified for P – assesses 24% WPI for PTSD, depression and Chronic alcohol abuse
June 2	P makes section 66 claim and puts QBE on notice of possible WID claim
Aug 30	Dr Martin requalified for QBE regarding lump sum claim
Sept 15	QBE accepts section 66 claim at 24% WPI
Oct 4	Section 66A agreement finalised
2017 Aug 17	P confers with Counsel
Dec 7	Report by liability expert Mr Peter Smith
2018 Jan 21	Draft 281/282 Notice, Prefiling Statement, Statement, Statement of Claim and Part 15 Statement provided by Counsel
Jan 23	WID claim served on D and QBE
Jan 26	Dr Ting (vocational/functional report) qualified for (report dated 20 March 2018)
Feb 9	D’s solicitors requested particulars of WID claim
Mar 6	Manager of D provides Statement to Abi with annexures regarding Armed holdup response and cash handling
Mar 20	Particulars provided
Mar 26	Abi provide second investigation report to D’s solicitors
Apr 5	Pre-filing statement documents all served by this date
Apr 9	GIO (now the insurer) serves section 74 Notice disputing WID claim
Apr 27	Pre-filing Defence served
2018 May 15	Application made for WID Mediation
July 12	WID Mediation
Aug 24	Statement of Claim filed”

Reasons for the delay

13. The time period allowed by s 151D expired in January 2007. The statement of claim was not filed until August 2018. On any view, that is an extensive delay. However, as the chronology reveals, there are distinct periods within the overall period after January 2007 until the commencement of these proceedings. The critical period, in my view, is that between 2007 and 2014 when the plaintiff first saw her lawyers. That is a period of 7 years and is still extensive.

14. Essentially, the reason for the plaintiff’s delay in bringing these proceedings is that she was in an alcoholic daze for many years. She took many years to appreciate the impact of the hold up on her mental health and, in the meantime consumed increasingly large amounts of alcohol. This led to her leaving her family and, for many months, living out of her car before going to live with a friend.

15. While she took steps to address her alcoholism in 2009 and 2010, it was not until 2012, when the plaintiff was arrested and charged with assaulting a police officer, that she was properly diagnosed with a mental illness with some connection to the hold up. In 2014 she was finally referred to a psychiatrist and subsequently introduced to her current lawyers by a friend. There was no real delay after that point – the steps taken by the plaintiff until filing the statement of claim in 2018 were effectively driven by the dictates of the workers compensation legislation.

16. This history, including that given by the plaintiff to the various medical experts, suggests that much of the delay was brought about by the effects of her alcohol dependency and, in turn, by the consequences of the armed hold up. In my view, even though the delay here is significant, these facts provide both a reasonable and satisfactory explanation for that delay.

Prejudice

17. The question of prejudice was examined at some length by White JA in Gower. His Honour reviewed a number of authorities and concluded that the ultimate onus was on the applicant to prove that there would not be such prejudice as would make the chances of an acceptable fair trial unlikely: [180], referring to South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477. This was another formulation of what McHugh J had said in Brisbane South Regional Health Authority that if there is a significant chance that the defendant would not be able fairly defend himself or herself, actual prejudice is established.

18. His Honour also noted, at [183], that McColl JA had said, in Salvation Army (South Australia Property Trust) v Rundle [2008] NSWCA 347 that for a trial to be fair, it need not be perfect or ideal.

19. In this respect, his Honour found that the loss of evidence did not necessarily affect the chance of a fair trial.

20. Here, it may be presumed that there was some prejudice to the defendant as a result of the long delay since the injury occurred. However, I am satisfied that that prejudice was not such as to make the chances of an acceptably fair trial unlikely.

21. First, a police investigation followed shortly after the hold up and there was a trial of at least one of the perpetrators. The plaintiff was one of the witnesses who gave a statement to the police and she also gave evidence at the trial. It is most likely in those circumstances that there exists the ready means of knowing the identity, if not also the means of contacting, the majority of the witnesses to the injury as well as the management at the time.

22. Secondly, there has been one recent investigation conducted into the question of liability at the request of the lawyers for the defendant. That investigation was, on its face, fairly cursory as it appears to have been limited to questions asked of the current general manager, Mr Estephan. However, apart from one matter, there is no suggestion in the report of that investigation that any evidence has been lost. The exception to this may be the statement that “nil further witnesses (were) identified by Mr Estephan.” However, given what I have said above, and the generality of the statement, I do not accept that it means that some critical (or any other) witness is no longer available.

23. Thirdly, the plaintiff’s current injury was assessed by a Dr Martin in 2016 on behalf of the workers compensation insurer and, on the basis of his report, the plaintiff’s claim for a lump sum for 24% whole person impairment was accepted. The passage of time might make it more difficult to test the assumptions of that report and those relied on by the plaintiff, however, it is significant that there was a sufficient basis for an expert to give this opinion.

Prospects

24. The plaintiff claims that her injuries were caused by the defendant’s omissions to take certain precautions against the risk of an armed robbery. Those omissions are set out at paragraph 5 of the statement of claim and need not be repeated here.

25. Her assertions are based on the report of Peter Smith, an expert in security risk management in respect of licensed premises. Mr Smith states that armed robberies are a foreseeable risk for such premises and explains that there are a number of steps that may be taken to reduce that risk. The plaintiff claims that the defendant was negligent by fail to take a number of those steps. Although the ultimate conclusion on liability will require an analysis of other factors including the costs of the particular measures in question, on a prima facie basis it appears to me on the strength of Mr Smith’s report that the plaintiff has a reasonably strong case on liability.

26. Similarly, once it is accepted that the plaintiff was the victim of the armed robbery and, indeed, was directly threatened with a gun, and also that she suffered the long-term psychological impact of the threat to her life, the case on damages also appears to be strong.

Conclusion

27. Although the plaintiff’s delay in bringing these proceedings was extensive, I am satisfied that there was an adequate explanation of that delay. I am also satisfied that the prejudice is not such as to affect the likelihood of a fair trial and that the plaintiff has a reasonably strong case. In those circumstances, justice requires that leave be granted to the plaintiff to bring these proceedings and that that leave be made effective from the date of the commencement of the proceedings. I will make the following orders:

1. The plaintiff be granted leave to commence proceedings pursuant to s 151D(2) of the Workers Compensation Act 1987 (NSW) as from 24 August 2018 nunc pro tunc.

2. Costs of the plaintiff’s notice of motion dated 30 November 2018 be costs in the cause.

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Decision last updated: 20 May 2019