Supreme Court New South Wales

• Medium Neutral Citation: Ryan v Forstaff Engineering Personnel Pty Ltd [2011] NSWSC 1009
• Hearing dates: 12 August 2011
• Decision date: 02 September 2011
• Before: Barr AJ

Decision

1. Grant leave to the plaintiff pursuant to s 151D Workers Compensation Act to commence proceedings against the defendant by 7 March 2011;

2. Order that the costs of motion be costs in the proceedings.

• Catchwords: PROCEDURE - notice of motion - leave sought under s 151D(2) of the Workers Compensation Act 1987 - leave granted
• Legislation Cited: Occupational Health and Safety Act 2000; Workers Compensation Act 1987; Workplace Injury Management and Workers Compensation Act 1998
• Cases Cited: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541; Capitol Construction Group Pty Ltd v Kazic [2007] NSWWCCPD 36; Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207; Pasminco Cockle Creek Smelter Pty Ltd v Gardner [2006] NSWWCCPD 108; Salido v Nominal Defendant (1993) 32 NSWLR 524; TNT Australia Pty Limited v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1; Wayne Lawrence Pty Limited v Hunt [1999] NSWSC 1044
• Category: Procedural and other rulings
• Parties: Mathew Ryan (Plaintiff); Forstaff Engineering Personnel Pty Ltd (Defendant)
• Representation: Counsel: Mr P Mahony SC with Mr A Joseph (Plaintiff); Mr P O'Connor (Defendant); Solicitors: Puleo Lawyers (Plaintiff); Holman Webb Lawyers (Defendant)
• File Number(s): 2011/79977

Judgment

1 The plaintiff, Mathew Ryan, was injured at work on 30 September 2006. His employer was the defendant, Forstaff Engineering Personnel Pty Ltd. He wishes to commence proceedings in this Court for common law damages. His statement of claim was not filed until 7 March 2011, a little more than one year and five months after the expiry of the limitation period set forth in the Workers Compensation Act 1987. Relevantly, s 151D is as follows: -

" 151D Time limit for commencement of court proceedings against employer for damages

...

(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.

(3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies.

..."

2 By his notice of motion the plaintiff seeks leave under s 151D(2) to commence proceedings on the day on which his statement of claim was filed.

3 In 2006 the plaintiff, a maintenance fitter, was told by a friend, Wayne Northey, that work that suited him was available at a company called Reckitt Benckiser ('Reckitt') and that to get the work he would have to go through a labour hire company trading as Ready Workforce. That company was the defendant. He applied to Ready Workforce and was told to go to Reckitt's premises at West Ryde. He did so and worked there for a week. At the end of the week Mr Northey, who also worked there, told the plaintiff that work might come available at another Reckitt work site at Wetherill Park. After work on the Friday Mr Northey telephoned him and told him that the Reckitt supervisor at Wetherill Park would like the two of them to work there on the following day. The plaintiff agreed. Mr Northey drove him there. He and Mr Northey were put to work dismantling a cool room. As he was carrying out that work on 30 September 2006 the plaintiff put his foot on a panel which gave way. He fell and sustained serious injuries to his spine.

4 The plaintiff made a claim against the defendant for workers compensation benefits, and benefits were paid. In October the plaintiff spoke to Mr John Puleo, solicitor. Mr Puleo was a colleague and was not then professionally acting for the plaintiff. The payment of the benefits continued until 1 December 2006, when QBE Worker's Compensation (NSW) Limited ('QBE') wrote to the plaintiff informing him that it denied liability 'as of' that day. The letter stated, among other things: -

" STATEMENT OF MATTER IN DISPUTE

Our evidence indicates that:

You were not a "worker" of Forstaff Engineering Personnel Pty Ltd when injured, or in the alternative;

The injury did not arise out of or in the course of your employment with Forstaff Engineering Personnel Pty Ltd, or in the alternative;

Your employment with Forstaff Engineering Personnel Pty Ltd was not a substantial contributing factor to the injury.

REASONS FOR DENYING LIABILITY

An assessment of all available evidence in relation to your claim indicate that you are not a "worker" as defined in section 4 of the Workplace Injury Management Act 1998 , at the time of the injury.

In our opinion your alleged injury of 30 September 2006 was not related to your employment as required by Section 9A of the NSW Workers Compensation Act 1987 . Under this section compensation is not payable unless employment is a substantial contributing factor to the injury.

ISSUES RELEVANT TO THE DISPUTE

That at the time of your accident, you were not an employee of Forstaff Engineering Personnel Pty Ltd (Chandler McLeod) and that therefore your injury did not arise during the course of your employment.

REPORTS AND DOCUMENTS RELIED UPON BY QBE

We rely on the following evidence in support of our decision:

Document	Date	Author	Authors Speciality/Professional Qualifications
Factual Report	14 Nov 05	C&A Insurance Support Services	N/A
Timesheet	29 Sept 06	Mathew Ryan	N/A
Client/Job Order Details form	22 Sept 06	N/A	N/A
Incident Reporting and Investigation Form	3 Oct 06	Melinda Tan-Stephen	NSW OH&S Manager
Medical Report	13 Nov 06	Dr Andrew Cree	Orthopaedic Spinal Surgeon
Initial WorkCover Medical Certificate	3 Oct 06	Kristina Love	Intern for Dr Jonathon Clark, Liverpool Hospital
WorkCover Medical Certificates	30 Oct 06 17 Nov 06	Dr GS Sachawars	General Practitioner
Early Notification of Workplace Injury form	9 Oct 06	Ms Ann Hyde	NSW Rehabilitation Coordinator
Employee's Report of Injury	28 Nov 06	Mathew Ryan	N/A
Employers Report of Injury	28 Nov 06	Ms Ann Hyde	NSW Rehabilitation Coordinator

Copies of all of the above documents have been enclosed for your assistance in accordance with Section 74 of the NSW Workplace Injury Management and Workers Compensation Act 1998 and Clause 37 of the Workers Compensation Regulations 2003 .

DOCUMENTS THAT YOU HAVE PROVIDED TO QBE

We note that in addition to the above documents, you have provided us with the following ins support of your claim:

Document	Date	Author	Authors Speciality/Professional Qualification
Medical Report	13 Nov 06	Dr Andrew Cree	orthopaedic Spinal Surgeon
Initial WorkCover Medical Certificate	3 Oct 06	Kristina Love	Intern for Dr Jonathan Clark, Liverpool Hospital
WrokCover Medical	30 Oct 06 17 Nov 06	Dr Gs Sachawars	General Practitioner
Certificates
Statement	25 Oct 06	Mathew Ryan	N/A
Employee's Report of Injury	28 Nov 06	Mathew Ryan	N/A

5 The plaintiff was unwell and did not know what to do. In April or May 2007 an official of WorkCover Authority of NSW ('WorkCover') suggested that he claim compensation from Reckitt. He did so and on 9 May 2007, Allianz Australia Workers' Compensation (NSW) Limited denied liability on behalf of Reckitt.

6 The plaintiff continued to be treated and to be unfit for work. Early in 2008 he consulted Mr Puleo professionally. Mr Puleo sought an opinion from junior counsel, who advised that Mr Northey or Reckitt might be liable, but that it was unclear. Counsel asked for more information and Mr Puleo corresponded with Mr Northey, who told him that he had no insurance. Mr Puleo thought that the most likely cause of action would be against Reckitt.

7 In 2008 the plaintiff told Mr Puleo that WorkCover was investigating the accident in which he had been injured. Mr Puleo thought that no proceedings should be instituted until the result of that enquiry were known.

8 In December 2008, the Industrial Court of New South Wales began hearing a charge brought by WorkCover against Reckitt for a breach of the Occupational Health and Safety Act 2000 in that Reckitt had failed to ensure that a person other than its employee was not exposed to risks to his health and safety arising from the conduct of Reckitt's undertaking. Reckitt pleaded guilty.

9 On 27 April 2009 the plaintiff told Mr Puleo that the WorkCover case against Reckitt had concluded and that the Court's decision was reserved. Mr Puleo was aware that time to commence proceedings was beginning to run out. He advised the plaintiff to bring his medical evidence up to date.

10 On 12 May 2009 the judgment of the Industrial Court was handed down. Reckitt was fined.

11 On 16 September 2009 the plaintiff provided Mr Puleo with further information, and he briefed counsel. Having received counsel's advice, Mr Puleo filed a statement of claim in the District Court on 30 September 2009 with Reckitt as defendant.

12 Those proceedings were managed and conducted normally. A timetable was set. In December 2009 Reckitt sent a lengthy request for particulars. Mr Puleo took steps to bring medical evidence up to date. He also arranged a conference to prepare a reply to Reckitt's request. One of the questions raised in the proceedings against Reckitt in the Industrial Court had been whether the plaintiff was a contractor or an employee of Reckitt or this defendant when he was injured. Mr Puleo thought it appropriate to obtain the advice of senior counsel about the manner in which the claim had been pleaded in the District Court and whether it might be appropriate to join other parties.

13 Senior Counsel advised Mr Puleo to serve the defendant with notice of a claim under s 281 of the Workplace Injury Management and Workers Compensation Act 1998 ('the WIM Act'). Mr Puleo did so by letter of 22 March 2010, claiming compensation under ss 66 and 67 of the Workers Compensation Act .

14 On 21 April 2010 an application was filed on behalf of the plaintiff in the Workers Compensation Commission ('the Commission'). The plaintiff was still unsure who was his employer, so he sought against the defendant and Reckitt an award for weekly payments, compensation for medical expenses and lump sum compensation under ss 66 and 67. On 9 June 2010 the Commission issued a certificate of determination that this defendant pay weekly payments for specified periods and continuing, together with s 60 expenses and costs. There was an award for Reckitt. A statement of the arbitrator's reasons accompanied the determination. That was the first judicial determination of who was the plaintiff's employer. The judgment of the Commission stands.

15 On 26 July 2010 the solicitor for the defendant wrote a letter conceding a 21% whole person impairment for the purposes of s 281(2)(a) of the WIM Act.

16 On 2 August 2010, QBE wrote to the plaintiff declining liability. Amongst other things, the letter said: -

"STATEMENT OF MATTERS IN DISPUTE

...

(2) Proceedings have not been commenced within three years of the alleged cause of action arising in accordance with S151D of the Workers Compensation Act 1987 ("WCA") and therefore proceedings commenced consequent on your claim against Forstaff are statute barred.

...

REASONS FOR DENYING LIABILITY

...

(2) S151D of the WCA requires that a person to whom compensation is payable in accordance with the WCA is not entitled to commence court proceedings for damage in respect of the injury concerned against the employer liable to pay that compensation more than three yeas(sic) after the date on which the injury is received, except with the leave of the court in which the proceedings are being taken. You sustained injury on 30 September 2006.

(3) QBE is prejudiced in its ability to defend your claim as a result of the significant delay in making your claim for work injury damages. To date not(sic) information has been advanced as to why leave should be granted to you to commence court proceedings out of time and no explanation has given for the delay.

...

ISSUE RELEVANT TO THE DISPUTE

...

(2) Proceedings have not been commenced within three years of the alleged cause of action arising in accordance with S151 of the Workers Compensation Act 1987 ("WCA") and therefore proceedings commenced consequent on your claim against Forstaff are statute barred. QBE is prejudiced in its ability to defend your claim as a result of the significant delay in making your claim for work injury damages. To date not(sic) information has been advanced as to why leave should be granted to you to commence court proceedings out of time and no explanation has given for the delay.

... "

17 The letter contained lists of documents it relied on. The documents comprised all those listed in the letter of 1 December 2006 together with: -

Document	Date	Author	Authors Speciality/Professional Qualifications
Medical report	5/2/2010	Dr Mastroianni	Consultant Occupational Physician
Terms of business for the supply of services	Undated	Reckitt Benckiser
Judgment: Inspector May v Reckitt Benckiser (Australia) Pty Ltd (2009) NSW IR Com 63	12/5/2009	Justice Marks
Letter	28/6/2010	Puleo Lawyers
Letter	20/4/2010	Holman Webb Lawyers
Workers Compensation Commission certificate of determination	9/6/2010	Arbitrator McManamey

18 Following receipt of the arbitrator's reasons and determination, Mr Puleo had sought a report from an expert on the defendant's liability. He received such a report on 29 November 2010.

19 On 7 December 2010 Mr Puleo served on the defendant a pre-filing statement pursuant to s 315 of the WIM Act. On 12 January 2011 he received a pre-filing defence from the solicitor for the defendant.

20 This notice of motion was filed on 7 March 2011.

21 The District Court proceedings against Reckitt were transferred to this Court on 31 March 2011.

22 There is a preliminary dispute between the parties about how long the plaintiff is out of time. The plaintiff says that he is entitled to rely on the provisions of s 151DA of the Workers Compensation Act , which relevantly is as follows: -

" 151DA Time not to run for commencement of proceedings in certain cases

(1) Time does not run for the purposes of section 151D:

(a1) while the determination of the claim concerned is delayed as permitted by section 281 of the 1998 Act, but not including delay beyond 2 months after the claimant has provided all relevant particulars about the claim as required by section 281 (2) (b) of that Act, or

Note. Delay in determining a claim beyond 2 months is only permitted on the basis that degree of permanent impairment is not fully ascertainable and the insurer has notified the claimant of this. In such a case, paragraph (a) of this subsection can apply (if a dispute about whether degree of permanent impairment is fully ascertainable is the subject of medical assessment) to further prevent time running for the purposes of section 151D.

...

(b) while a pre-filing statement served in accordance with section 315 of the 1998 Act in respect of the claim concerned remains current.

..."

23 It is common ground that if the plaintiff had the advantage of subs (1), the amount by which he was out of time would be reduced by two months under subs (1)(a1) and a further three months under subs (1)(b). That would mean that for the purposes of this motion he would be considered to have been about 370 days out of time.

24 The question raised is whether a plaintiff can avail himself of either of these provisions if the circumstances contemplated by subs (1)(a1) and (1)(b) do not arise until after the limitation period has expired. Mr O'Connor, for the defendant, submitted that in the present case the plaintiff's entitlement to rely on the provisions of the section ceased when the limitation period expired on 30 September 2009 and could not thereafter be resurrected. Mr O'Connor relied for that submission on statements of Hodgson and Bell JJA in Paper Coaters Pty Limited v Jessop [2009] NSWCA 1. Hodgson JA said at [3]: -

"Under s 151DA of the 1987 Act, the service of a pre-filing statement stops time running for limitation purposes while it remains current (and it remains current from the time it is served until it is struck out or withdrawn)."

25 Bell JA said at [50]: -

"The effect of service of the respondent's pre-filing statement is that time ceased to run under s 151D of the 1987 Act."

26 Mr O'Connor also relied on statements of Sheehan PJ in Pasminco Cockle Creek Smelter Pty Ltd v Gardner [2006] NSWWCCPD 108 and Capitol Construction Group Pty Ltd v Kazic [2007] NSWWCCPD 36. I will not repeat the statements. They simply state that the filing of a pre-filing statement before the expiry of the limitation period stops time from running.

27 All these cases were concerned with the operation of Part 6 of the WIM Act, whose purpose is to promote the timely settlement of claims and not with the effect of any pre-filing statement filed after the expiry of the limitation period. All the cases were concerned with the effect for the purposes of Part 6 of the filing of such a document before the expiration of the limitation period. None says anything about what the effect might be of such a statement filed after expiry.

28 The plain statement in s 151DA(1) is that in the circumstances it sets out time does not run for the purposes of s 151D (emphasis added). Given that applicants for leave under s 151D(2) are necessarily out of time, there seems no practical purpose to be served by extending relief where relevant events happen or commence during the limitation period but withholding it where they do not. The section does not in terms require it, nor does the context require the section to be understood in that way. There appears to be no authority for such a construction.

29 I think that the plaintiff can rely on s 151DA(1)(a)(b). In my opinion he was 370 days, that is one year and five days, out of time when his statement of claim was filed.

30 In Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; (2002) 54 NSWLR 207, Ipp AJA with whom Spigelman CJ and Sheller JA agreed, considered the proper approach to an application for leave under s 151D, where the legislature does not specify the circumstances to be taken into account by the court. Having reviewed previous authorities, Ipp AJA said at [87]: -

"In my opinion, in limitation legislation such as s 151D(2) of the Workers Compensation Act , where 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 (per Gleeson CJ in Salido). Or what does the justice of the case require (per McHugh J in Brisbane South Regional Health Authority). 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."

31 The four rationales identified by McHugh JA in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 were repeated thus by Ipp AJA at [78]: -

"McHugh J (at 552) identified four broad rationales for the enactment of limitation periods, generally. These 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;

(d) The public interest requires that disputes be settled as quickly as possible."

32 It seems to me that for present purposes the principal features of the case are these: -

(a) The delay is one year and five days.

(b) The defendant had notice before its letter of 1 December 2006 of the plaintiff's accident, of some account of how it happened and at least a preliminary indication of what the plaintiff's disabilities then appeared to be. The defendant had occasion to consider the circumstances in which the plaintiff was injured. In the course of considering the matter the defendant had the plaintiff's report, the employer's report and a factual report of C&A Support Services about the circumstances in which the plaintiff was injured. In addition it had medical reports.

(c) The notice of the plaintiff's claim pursuant to s 281 Workplace Injury Management Act 1998 was sent to the defendant on 22 March 2010, a little less than six months after the expiration of the limitation period. The defendant then knew that the plaintiff would pursue his claim.

(d) At all material times the defendant was in a better position than the plaintiff to know precisely what its arrangements were with Reckitt about the provision of labour.

(e) The plaintiff was in a difficult position because he could not be sure who his employer was. He engaged the services of a solicitor about that and the solicitor briefed counsel about it. Even then things did not become clear until the Commission determined the matter more than eight months after the limitation period had expired.

(f) By 30 September 2009, when the limitation period expired, the plaintiff still did not know the full extent of his injuries. It was not until Dr Mastroianni's report was received early in the following month that the plaintiff knew that he could cross the statutory threshold of 15% of whole person impairment.

(g) No suggestion is made by the defendant that it has suffered actual prejudice on account of the delay.

33 I bear in mind what McHugh JA said in Brisbane South Regional Health Authority v Taylor . In view of the plaintiff's not over-excessive delay and bearing in mind the fact that the defendant has known from very early times about the plaintiff's injury and the circumstances in which he received it, I think that the risk of prejudice to the defendant in letting the plaintiff in is minimal.

34 It is necessary to consider three further submissions made by Mr O'Connor. The first asserts that the plaintiff deliberately decided to allow the statutory period to expire and so ought not to be granted relief. Mr O'Connor relied on part of the headnote in the report of Itek Graphix Pty Limited v Elliot t.

35 It is plain from the judgments in Itek Graphix Pty Limited v Elliott that where a respondent is found to suffer no prejudice it does not follow that the Court will grant relief to an applicant if the applicant has made a fully informed decision not to commence proceedings within the limitation period. The facts are set forth in the judgment of Ipp JA. I will not repeat them but observe that it is clear that a fundamental reason for his Honour's decision is that the respondent made a fully informed decision not to commence proceedings within the limitation period. His Honour said at [33]: -

"As mentioned, the three year period in terms of s 151D(2) of the Workers Compensation Act 1987 expired on 24 October 1997. Prior to that date, the respondent had a conference with Mr Andrew Lidden, of counsel, and her solicitor, Mr Hagipantelis. At that conference she decided that she would not bring proceedings against the appellant for common law damages caused by the fall and would only pursue her claim for workers compensation. I shall later examine, in greater detail, the factual circumstances surrounding this decision. It is sufficient, at this stage, to note that the respondent decided, deliberately, and after receiving full legal advice from her barrister and solicitor on the issue, to allow the three year limitation period under s 151D(2) to expire."

37 Sheller JA said at [4]: -

"Ipp AJA has concluded that the appellant suffered no prejudice in consequence of the resultant delay but that the decision initially taken not to proceed at common law and allow the three year period under s 151D(2) of the Workers Compensation Act to expire were taken quite deliberately on a fully informed basis. The respondent further delayed for a significant period before changing her mind. I entirely agree that this in itself is a potent circumstance which must be taken into account and will ordinarily weigh heavily against an applicant."

38 It seems to me that the plaintiff acted reasonably throughout. He sought legally advice in a timely fashion. His solicitor sought the advice of junior counsel in a timely fashion. The case was attended by a peculiar difficulty, namely that of identifying the employer. To say that by 30 September 2009 the plaintiff decided to sue Reckitt is not to say that he had decided not to sue the defendant. He and his solicitor was still unsure who the employer really was. That was why senior counsel was consulted later on. The decision of the Commission, holding that the defendant was the employer and Reckitt was not, was not known until more than eight months after the expiry of the limitation period. That decision was made in an action brought against both putative employers, the plaintiff being unsure who his employer was.

39 For the principle explained in Itek Graphix Pty Limited v Taylor to be raised against an applicant, it has to be shown that the applicant was fully informed when he decided not to sue. I do not think that the principle applies here. Whilever he was unsure who his employer was, the plaintiff could not be said to be fully informed. Moreover, I do not think that in the circumstances a decision to sue Reckitt was tantamount to a decision not to sue the defendant.

40 Mr O'Connor drew attention to the onus cast on an applicant like the plaintiff to give a satisfactory explanation of his conduct. Reference was made to a statement of Ipp AJA in Itek Graphix Pty Limited v Taylor at [98], thus: -

"In my opinion, to grant leave to sue long after the expiry of a limitation period, when the applicant has made a deliberate decision to allow the statutory period to expire, in the absence of special circumstances explaining satisfactorily the conduct of the applicant, would set at naught the purpose of the legislation."

41 I have mentioned that in May 2008 junior counsel was approached for advice and that counsel sought further information, that information was supplied in September 2009 and that the statement of claim was filed against Reckitt on 30 September 2009. Mr Puleo gave evidence and Mr O'Connor asked him why the advice had not been annexed to his affidavit. Mr O'Connor called for the advice. It was produced to the Court and a claim of client legal privilege was made on behalf of the plaintiff. Mr O'Connor submitted that by the evidence given by Mr Puleo the plaintiff's privilege had been waived. I upheld the claim of privilege and stopped Mr O'Connor from adducing evidence about communications between junior counsel and Mr Puleo.

42 Mr O'Connor's submission was that the plaintiff relied on client legal privilege to restrict details of what might otherwise had been a much fuller explanation, to which, it was submitted, the Court was entitled and which it was required to consider before it could come to a decision to extend time. Reference was made to a statement of Hodgson CJ in Eq in Wayne Lawrence Pty Limited v Hunt [1999] NSWSC 1044 at [15]: -

"It appears to be the law that where legal professional privilege or other privilege is claimed, that of itself cannot be the basis of an adverse inference being drawn against the party claiming that privilege. However, in my opinion, where a party is claiming to make out a case, and that party bears the onus of proof, and where that case could be given positive support by calling evidence of legal advice or lack of legal advice, the failure of that party to call that evidence can be taken into account in deciding whether that party has discharged the onus of proof which it bears. The plaintiff's solicitor accepted that this was so during argument. I take that view into account in reaching the conclusion that I do reach, because my view that the upholding of privilege does not involve unfairness to the defendant does depend upon my view that the defendant is not precluded from commenting on, and relying on, the failure of the plaintiff to support its case by giving evidence about its legal advice, or lack of legal advice, on this point.

43 Notwithstanding the absence of evidence of anything that junior counsel wrote or said to Mr Puleo, the inference seems inescapable that the advice was to do what was then immediately done, namely to commence proceedings at common law in the District Court, naming Reckitt as defendant. In my opinion the plaintiff adequately explained the state of his knowledge from time to time and why he did what he did. I do not regard the maintenance on his behalf of the claim of privilege as throwing any doubt on that or as amounting to a failure to call evidence that he ought to have called.

44 Mr O'Connor submitted that in order to discharge his onus of proving that a fair trial could be had, the plaintiff should have given the Court more information than he did. There was this submission: -

"... the Court should have been informed, in our submission, that the plaintiff's injuries occurred in that particular set of circumstances, relevant witnesses to that would be nominated individuals and the Court should have been told that those witnesses are all, or some, still alive, and their whereabouts are known. That has not happened."

45 Mr O'Connor did not cite authority in support of his submission. I doubt whether at an interlocutory stage the plaintiff must go to such lengths to demonstrate that the defendant can have a fair trial, particularly when the delay is not excessive and the defendant makes no claim to have suffered actual prejudice.

46 The third submission was that the Court should not grant an extension of time because it would be futile to grant it. Mr O'Connor referred to the statement of Gleeson CJ to that effect in Salido v Nominal Defendant (1993) 32 NSWLR 524 at 532. The submission continued: -

"In every case in which the Courts have considered the "non delegable" duty of care is owed by a labour hire company to an employee working for a host employer, the employee, when injured, has been working at a place and/or was doing work, in a general sense, of which the labour hire company knew.

The evidence before the Court here is that the Forstaff did not have actual knowledge of what work the applicant was doing when injured nor did it know that the applicant know that was working at a site other than the site to which it had sent the applicant to work.

It is well settled that the "non delegable" duty owed by an employer is a duty to take care as a reasonable employer to avoid or minimise a risk of injury of which the reasonable employer knew or ought to have known.

It is respectfully submitted that it follows from this that a reasonable employer is not liable for injury to an employee if that injury occurred in circumstances of which it did not know and of which, as a reasonable employer it could not have known.

It is further respectfully submitted that there is no evidence (which must necessarily have come from the applicant in these circumstances) that the employer ought to have known. It is, of course, not in issue that the employer did not have actual knowledge.

It is respectfully submitted that, in the absence of evidence that the employer ought to have known of a risk of injury, the applicant has not established that there was, in fact, a "duty" in the circumstances."

47 It does not seem to me as though the plaintiff must fail in his action. Whether the defendant ought to have known what the risk of injury to the plaintiff was is a matter for legal argument based on the whole of the evidence. Whether an employer may be found to have breached a non-delegable duty of care regardless of fault may be the subject of argument, as to which see the judgment of Mason P in TNT Australia Pty Limited v Christie [2003] NSWCA 47; (2003) 65 NSWLR 1 at [47]. In my opinion the Court should be wary of deciding at an interlocutory stage that the plaintiff could never succeed. Thee issues are best reserved for the trial. It is sufficient if the plaintiff has an arguable case, and that seems to be so.

48 I propose to grant the relief sought.

49 Submissions were made both ways about costs but it seems to me to be just to order that costs be costs in the proceedings.

50 I make the following orders: -

1. Grant leave to the plaintiff pursuant to s 151D Workers Compensation Act to commence proceedings against the defendant by 7 March 2011;

2. Order that the costs of motion be costs in the proceedings.

**********

Decision last updated: 02 September 2011