Barrett v ITW Australia Pty Ltd

HIS HONOUR: On 15 March 2010, Mr Barrett was injured in the course of his employment with ITW Australia Pty Ltd. He commenced a claim for workers compensation benefits with ITW’s insurer shortly thereafter and has been in receipt of weekly wage benefits and reimbursement for his associated medical expenses since that time.

On 23 March 2016, Mr Barrett filed his statement of claim commencing these proceedings. Paragraph 12 of the defence filed on 26 May 2016 by ITW pleaded that his proceedings were commenced out of time having regard to the terms of s 151D of the Workers Compensation Act 1987 and that he was therefore prevented from proceeding with this claim.

By notice of motion filed on 24 August 2016, Mr Barrett sought an order that he be granted leave to commence and to pursue these proceedings pursuant to s 151D(2) of the Act. That section provides relevantly as follows:

Mr Barrett’s application is not now opposed, despite the terms of the defence to which I have referred. It is supported by Mr Barrett’s affidavit sworn 15 September 2016 and two affidavits of his solicitor Emma Mead sworn 24 August 2016 and 15 September 2016 respectively. These affidavits were read without objection. No one was cross-examined. ITW did not tender any evidence on this application.

Mr Barrett has been the subject of a series of cascading assessments of whole person impairment since shortly following his accident. On 14 July 2011, he was assessed as having a five percent whole person impairment by reason of injuries to his knees. He made a claim for lump sum compensation which was accepted by ITW’s insurer on 7 October 2011. By 6 July 2015, Mr Barrett had been assessed as suffering from a 29 percent whole person impairment as the result of workplace injuries arising from this accident.

On 14 September 2015, ITW was informed by letter of that date that Mr Barrett proposed to pursue a claim for work injury damages arising out of ITW’s alleged negligence and breach of statutory duty. On 21 December 2015, Matthew Soliman, a case manager employed by ITW’s insurer, wrote directly to Mr Barrett indicating, among other things, that Mr Soliman was now Mr Barrett’s “new case manager” and that he would “manage [Mr Barrett’s] claim until the claim for work injury damages/common law is resolved”.

The circumstances in which leave should be granted were authoritatively considered by Ipp AJA in Itex Graphix Pty Ltd v Elliot (2002) 54 NSWLR 207; [2002] NSWCA 104 at [78] as follows:

Sheller JA had earlier expressed his agreement with this approach at [3]-[4] of the reasons for judgment in that case as follows:

Mr Barrett argued that no such considerations applied in the present case.

First, he has provided an explanation for the delay. He initially had no entitlement to sue having regard to the degree of whole person impairment as originally assessed. His condition thereafter progressively deteriorated despite a course of ongoing treatment. When Mr Barrett’s treatment failed to have any significant beneficial effect, he immediately sought further legal advice. That was in 2014.

Secondly, and in a related sense, the delay in commencing these proceedings since then is attributable to the statutory process required to obtain a medical determination of whole person impairment greater than 15 percent. Such a determination is a precondition to the commencement of this litigation. Mr Barrett complied with all of the other statutory requirements that were necessary before proceedings could be commenced. He and his solicitor, as well as ITW and its insurer and lawyers, have attended to the statutory requirements promptly.

Thirdly, ITW and its insurer have suffered no actual prejudice. They have pointed to none. ITW and its insurer have been and continue to be provided on a regular basis with all contemporaneous medical records relating to Mr Barrett’s injuries and have been able to pursue their own independent inquiries and investigations into the circumstances of the accident. All relevant requests for particulars directed to Mr Barrett or his solicitor have been answered promptly and without complaint.

Finally, the delay in the commencement of the proceedings has not objectively prejudiced the prospect that the parties will be able to obtain a fair trial. Presumptive prejudice potentially emanating from the delay so far yields on closer inspection to the absence of any prejudice in fact. That is to be compared to the circumstances that indicate that Mr Barrett has sustained a severely debilitating and incapacitating injury, including a substantial associated reduction in his capacity to undertake any form of remunerative employment.

In my opinion, leave should be granted.

Mr Barrett asks for costs of the application. Costs are opposed by ITW, arguing that the costs of this application should abide the outcome in the proceedings.

By letter dated 4 July 2016, just short of six weeks following the filing of the defence in these proceedings, Mr Barrett’s solicitor sought particulars of that defence. Paragraph 2 of the letter was in these terms:

Any response to that letter is not in evidence before me.

Unless Mr Barrett had been prepared to run the risk that leave would be granted at a final hearing of these proceedings, a notice of motion, or more particularly an interlocutory hearing of some sort to determine the leave issue, would always have been necessary. That is so notwithstanding paragraph 12 of the defence or any later concession by ITW that it did not oppose the grant of leave. That was the position before me despite the original form of the defence.

The only real costs issue seems to me to be the extent to which, if at all, Mr Barrett has incurred costs on the present application that would not have been generated if the defence did not contain paragraph 12 or its equivalent. The statutory requirement for Mr Barrett to secure a grant of leave is not the product of ITW’s response to the claim. Success in the present application is in that sense not dissimilar in importance for Mr Barrett to success on the ultimate issues of liability in the proceedings. The present application is therefore but one step in the process between the commencement of the proceedings and the recovery of damages. ITW did not seek to obstruct that process.

In those circumstances I consider that Mr Barrett’s entitlement to the costs of the application for leave should be rise and fall with his entitlement to costs in the proceedings as a whole. ITW did not argue that it would not be liable for the costs of this application if it eventually became liable for the costs of the proceedings. It did argue that it should not be liable for those costs standing alone. Mr Barrett should not in my opinion be found to have an independent entitlement to recover the costs of this application unless he also becomes entitled to an order for the costs of the proceedings generally.

It was contended by Mr Barrett that costs should follow the event and that I should not, as it were, otherwise order. In my opinion the “event” in that context is not the outcome of the present motion. The event for presently relevant purposes in my view should be the result of these proceedings on a final basis. Accordingly, the costs of the present application should follow that event.

My orders therefore are as follows: