Simply a hurdle or the new way to defend WID claims?
In Carrington v State of NSW (Department of Education)  NSWDC (unrep, Robison DCJ, 6 October 2020), the NSW District Court dismissed the plaintiff’s motion seeking leave to proceed with her work injury damages (‘WID’) claim out of time under Section 151D of the Workers Compensation Act 1987 (NSW) (‘the Act’).
Whilst Judge Robison considered the usual issues of explanation of delay and prejudice in his decision, emphasis was placed on the weakness of the plaintiff’s claim in negligence and the inadequacy of the pleadings that had been filed, as being critical to the reason not to grant leave to proceed.
On 20 June 2012 the plaintiff, Ms Carrington, suffered an injury to her right foot, ankle and shoulder after tripping over a rock in a school carpark. Prior to this, she suffered a multitude of workplace and other personal injuries that were not disclosed despite particulars of such injuries being requested.
In July 2016, she was assessed as reaching maximum medical improvement for the purposes of ascertaining her whole person impairment (‘WPI’). An IME report was obtained in May 2017 that placed her WPI assessment over the threshold contained in Section 151H of the Act to bring a claim for WID.
A notice of claim for WID was served on June 2017. Further and better particulars were only received in June 2019. After a failed Mediation, the plaintiff commenced proceedings in the District Court on 6 March 2020. A Notice of Motion was then filed seeking leave to commence proceedings under Section 151D.
Section 151D of the Act states that court proceedings for WID claim must be commenced within three years from the date of injury, unless leave is granted by the Court to extend the limitation period. In Gower v The State of New South Wales  NSWCA 132 (‘Gower’) the NSW Court of Appeal identified three discretionary factors that the plaintiff must satisfy in order for an extension of time application to be successful:
There is a sufficient and acceptable explanation for each period of delay;
The plaintiff has a reasonably arguable claim in negligence; and
The conduct of the trial would not cause significant prejudice to the defendant if leave was to be granted.
Judge Robison refused to grant the plaintiff an extension of time. He concluded the plaintiff had not met the criteria established by Gower; providing the following reasoning:
Explanation for Delay
The plaintiff was unable to provide any explanation for the periods of delay.
In particular, she was unable to explain why there had been a delay in obtaining an IME report assessing her WPI after she had reached maximum medical improvement. She also could not explain why there had been a delay in providing particulars, particularly with respect to her prior workplace injuries.
The plaintiff maintained that she left full control of her claim in the hands of her solicitors and relied on them to take the necessary steps to progress her claim. Judge Robison did not accept this explanation.
The plaintiff’s claim was plagued with factual inconsistencies regarding the mechanism of her injury.
What had always been described as a ‘tripping on a rock’ incident, had changed into an allegation that she tripped ‘on an uneven surface’ by the time the Statement of Claim was filed. The case pleaded was entirely inconsistent with the evidence.
Judge Robison found that the Statement of Claim completely failed to plead the essential elements for a claim in employer negligence. Quoting Gower, he confirmed the plaintiff was ‘duty-bound to plead what was the alleged risk or risks of harm, what precaution was required to be taken, [and] what precaution ought to have been taken’.
Importantly, the Statement of Claim had failed to precisely identify the system of work the plaintiff says ought to have been in place which would have prevented the injury. In this regard, Judge Robison was critical of the fact that no expert evidence had been served outlining a proposed system of work; despite the Statement of Claim referring to such a report.
Given the above inadequacies, the Judge concluded that the pleadings were so defective that it would lead to speculation as to the case the defendant was required to meet; and would otherwise warrant an order that it be struck out.
Finally, Judge Robison found that actual prejudice had been established given the delay by the plaintiff in bringing her claim. This was compounded by the inconsistent and broadly pleaded Statement of Claim and the inadequate disclosure of prior injuries.
The decision serves as an ever-growing reminder not to discount Section 151D as a defence to a WID claim, particularly where the plaintiff’s case is broadly framed and plagued with inconsistencies.
In conjunction with the primary factors of delay and prejudice, the Court will have high regard to whether the plaintiff has an arguable claim in negligence when deciding whether to grant an extension of time to proceed with a WID claim.
The decision also highlights the importance of employers and insurers knowing exactly what case in negligence is being pleaded against them. It is not enough for the plaintiff to make a claim for WID based on broad allegations of negligence that do not specify the precise risk of harm or identify an alternative system of work.
Author: Durga Shivaji
Contributing partner: Michael Lamproglou