Forbes v Nepean Transport Pty Ltd (NSWDC 2024)

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Key Takeaways

• In deciding whether to grant leave to a worker under s151D(2) of the WC Act 1987 to commence proceedings for work injury damages out of time, the Court will consider:
  • whether the worker has a satisfactory explanation for the delay in issue;
  • whether the worker has an arguable case in negligence and;
  • whether there is significant prejudice suffered by the defendant by reason of that delay so as to undermine the prospects of a fair trial.
• Delay caused by a worker meeting the legislative requirements to bring a work injury damages claim will be considered by the Court to be a satisfactory reason for delay in commencing proceedings.
• Prejudice is minimised where the defendant has witness evidence which can attest to the employer’s system of work and its implementation in circumstances where the passage of time has resulted in the unavailability of documentation in support of a defence to the claim.

Legislation

Section 151H WC Act 1987 provides that no damages may be awarded unless the injury results in the death of the worker or at least 15% WPI.

Section s151D (2) WC Act 1987 states that a worker is not entitled to commence proceedings for work injury damages more than 3 years after the date on which the injury was received except with the leave of the court.

Brief Facts

The worker sustained an injury during his employment over a period from April 2012 and June 2013. He alleged that his duties involved repetitively lifting and carrying items and equipment which caused bilateral wrist injuries and carpal tunnel syndrome.

The nature and extent of the worker’s injury however was not realised until his initial attendance on his General Practitioner in or about December 2015.

Notably, the worker conceded that he first sought legal advice in regard to his injury in March 2018. At this time he received advice regarding weekly compensation and a potential right to sue his former employer in negligence if the permanent impairment threshold prescribed by s151H WC Act 1987 was met.

The worker underwent bilateral carpal tunnel surgery in July 2018. In February 2019 he was assessed for permanent impairment, at which time his injury was determined to have resulted in 9% WPI prompting the worker’s solicitors to appropriately advise that he did not satisfy the requisite s151H threshold.

It was not until the worker was assessed by the employer’s independent medical expert at 17% WPI and was advised of such by the insurer on 22 July 2022 that he realised he had an entitlement to pursue a claim for work injury damages.

The worker provided instructions to his solicitors who issued a work injury damages claim on 29 September 2022, by which time the worker was well outside the three year timeframe to bring his claim per s151D of the WC Act 1987.

By Notice of Motion filed on 22 July 2024, the worker sought leave pursuant to s151D(2) to commence and maintain proceedings in the District Court of NSW, being approximately 11 years since he sustained his work injury.

The defendant employer opposed the grant of leave, asserting that the worker had been aware that his condition was related to employment for an extended period though did nothing. Further, the worker was initially advised of a potential entitlement to pursue a work injury damages claim in March 2018. The employer argued it should have been put on notice at that time as it is likely that documents relevant to its system of work which were no longer available would have been preserved.

Judgment

Consistent with the decision of the Court of Appeal in Gower v Sate of New South Wales [2018] NSWCA 132, Castanos SC DCJ noted that the Court was required to consider the following questions:

• is there a sufficient and acceptable explanation for the delay;
• does the worker have a reasonably arguable claim in negligence; and
• would conduct of the trial cause the defendant significant prejudice so as to render the trial unfair?

Delay

Catsanos DCJ observed that it was uncontroversial that the worker first learnt of his potential entitlements at the time that he consulted lawyers in March 2018, however the evidence was silent on why it took him so long to seek that advice.

The Court noted that the worker’s injury was one which developed gradually, such that its relationship to employment may not have been readily apparent. In the opinion of his Honour, this provided some justification for the worker’s delay and so the Court was not critical of the worker’s initial apparent ambivalence about his legal rights.

The significant factor for his Honour was that even if the worker had been more diligent in pursuing his claim, delay would necessarily have arisen by reason of the permanent impairment assessment process mandated by the legislation and the requirement that the worker satisfy the 15% WPI threshold prescribed by s151H of the WC Act 1987.

Noting that a damages claim was not accessible to the worker at the time of the first assessment, and that it was diligently pursued on learning of the insurer’s 17% WPI assessment, it was considered the worker had provided an adequate and acceptable explanation for the delay.

Reasonably arguable case in negligence

Referring to the comments of White JA in Gower, Catsanos DCJ noted that when exercising the Court’s discretion to permit leave for the commencement of proceedings, the Court is likely to be “highly influenced” by whether the claim is apparently meritorious.

His Honour went on to state that when undertaking a preliminary assessment of the strengths of the worker’s claim, he considered the opinion of the worker’s liability expert and the medical evidence satisfied the requirement of establishing a reasonably arguable case.

Prejudice

In balancing the length and cause of the worker’s delay with the question of prejudice, Catsanos DCJ considered it a salient factor that the employer was able to produce a witness with good knowledge and recollection of the issues, even though the employer no longer had documentary evidence.

Further, while documentary evidence might bolster the employer’s position, in his Honour’s opinion evidence as to the actual implementation of the employer’s system of work was of greater probative value than the content of records in any event.

Referring to the observations of McColl JA in Howley v Principal Healthcare Finance Pty Ltd (NSWCA 2014), Catsanos DCJ noted that he was to consider whether the prejudice suffered by the employer made the chances of a fair trial unlikely.

Catsanos DCJ concluded that a grant of leave to the worker would not result in significant prejudice to the defendant, as the defendant had access to evidence sufficient to meet the worker’s case.

Comment

This decision confirms the issues that a Court will consider when called upon to exercise its discretion to grant leave to a worker in accordance with s151D (2) of the WC Act 1987.

Whilst each matter must be considered on its merits, it can be stated with some confidence that the Court will likely excuse a worker’s delay where the injury is one that has progressed or evolved over time necessarily delaying an assessment of WPI and satisfaction of the 15% legislative threshold.

The Court does not need to be satisfied that a “perfect or ideal” trial can be held. It will be sufficient that a fair trial can still be had to answer the submission that the worker’s delay has resulted in prejudice to the defendant.