Ward v Les Russell & Son Pty Limited and Warkworth Mining Limited

Before the Court are three notices of motion for determination.

The plaintiff’s further amended notice of motion of 3 August 2020 seeks the following orders:

The first defendant’s notice of motion of 19 September 2019 seeks the following orders:

The second defendant’s notice of motion of 20 September 2019 seeks the following orders:

The entirety of the documentary evidence was contained in a Court Book which was admitted without objection. [1]

The plaintiff read his affidavits dated 13 February 2019, 25 November 2019 and 31 July 2020, along with the affidavit of Heidi Lewis dated 9 May 2019.

The first defendant read the affidavit of Michael Moore dated 19 September 2019.

The second defendant read the affidavit of Navjeet Kaur Tut dated 7 November 2019.

In September 1998 the plaintiff was employed as a fascia gutter fixer for a company known as NFAGS and suffered an injury whilst carrying heavy plant on an access way (the 1998 accident). [2] He subsequently made an application for workers compensation payments and was paid weekly amounts as well as medical expenses. [3]

Following the 1998 accident the plaintiff consulted Mr Manion, a solicitor who then practiced at a firm known as MRM Solicitors. Having done so, the plaintiff brought common law proceedings for damages against his then employer. [4] He agreed that under the guidance of Mr Manion he brought those proceedings because he asserted that the 1998 accident was his employer’s fault. [5]

Following a mediation, those proceedings were settled on the basis of the defendant paying a sum of $250,000.00, of which the plaintiff received an amount of $185,000.00. [6] Whilst the plaintiff agreed that he understood that this amount had been paid to him because his employer had admitted that its negligence had caused his injuries, he maintained that he thought that the sum received represented payment for medical expenses. [7]

As to his understanding of the difference between workers compensation payments and common law damages, the plaintiff was asked: [8]

The plaintiff agreed that Mr Manion had retained counsel in those proceedings, and that counsel was present at the mediation. [9] The plaintiff reiterated that he had trusted his legal representatives to guide him in the right direction in connection with those proceedings. [10]

The plaintiff commenced working for the first defendant in 2008 as a plant operator, following which he progressed to the position of senior plant operator. [11] In each of those positions, he operated various types of machinery in an open cut coal mine, including a front end loader, an excavator, a backhoe, and a dump truck.

On 30 April 2009 the plaintiff was injured whilst employed by the first defendant (the subject accident). The plaintiff explained the circumstances of the subject accident in his affidavit of 13 February 2019: [12]

The plaintiff expanded on those circumstances in his affidavit of 31 July 2020: [13]

The plaintiff was cross-examined about the subject accident as follows: [14]

The plaintiff agreed that at the time of the subject accident he was aware that the first defendant was not operating the entire mine site. He was asked: [15]

In relation to the actions of Mr McCluskey at the time of the subject accident, the plaintiff was asked: [16]

Following the subject accident, the plaintiff was treated by a number of medical practitioners. [17] His employment with the first defendant was terminated on 20 April 2011. [18]

On or about 6 May 2011 the plaintiff contacted Mr Manion who by this time had left MRM Solicitors and was practising at Rankin Nathan Lawyers. The plaintiff said that he was prompted to seek legal advice due to the termination of his employment and also because his wife had suggested that he do so. [19] In terms of his initial meeting with Mr Manion, the plaintiff said: [20]

Although the plaintiff had referred in his affidavit to having had a “meeting" with Mr Manion, his recollection in cross-examination was that he in fact spoke with Mr Manion by telephone. [21] Irrespective of whether the consultation took place in person or by telephone, Mr Manion recorded the following instructions in a file note: [22]

The plaintiff was cross-examined about whether or not he told Mr Manion about the further detail of the subject accident which he disclosed in his affidavit of 31 July 2020. He maintained that he had done so. [23] He specifically denied the suggestion that he had not told Mr Manion about the lump of clay against the headboard of the truck [24] and also denied the suggestion that his affidavit of 31 July 2020 represented the first occasion on which he had disclosed such matters to anyone. [25] It was put to the plaintiff: [26]

The plaintiff agreed that in the two-year period between the time of the subject accident and the time that he spoke with Mr Manion he considered that his injuries had been caused by the fault of someone else. [27] He said that he had not sought any advice in that period because he was he was obtaining medical treatment in the hope of getting back to work. [28] He was later asked: [29]

The plaintiff agreed that he told Mr Manion that he knew from the moment of the subject accident that he had suffered a serious injury to his lower back and neck. [30]

The plaintiff said that Mr Lindgren advised him as to his entitlements to lump sum compensation. [31] A claim for compensation was made by the plaintiff on 22 June 2011 [32] supported by various statements. [33] There was a dispute as to the level of the plaintiff’s whole person impairment which was referred to an approved medical specialist, [34] Dr Faithfull, who provided a report assessing the plaintiff’s level of whole person impairment at 10%. [35]

In respect of his claim for compensation, the plaintiff said: [36]

The fact that Mr Lindgren had advised the plaintiff in those terms was not challenged. However, the plaintiff was asked about his understanding of the correctness of such advice: [37]

The plaintiff was then asked: [38]

On 20 February 2012, the plaintiff attended a teleconference at the Workers Compensation Commission to finalise his claim for compensation arising from the subject accident. It was resolved that his entitlement to compensation totalled $26,437.50. [39] A certificate of determination dated 21 February 2012 was issued [40] and a cheque for the payment of that sum was sent to Mr Lindgren’s office on 6 March 2012. [41]

As to the resolution of his claim for compensation and the events that followed, the plaintiff said: [42]

The plaintiff said that throughout 2013 and 2014, following the settlement of his claim, he had:

The plaintiff said that in June 2016 he was admitted to hospital on account of psychiatric illness and mental health issues, following which he was told by his wife that she had submitted an online enquiry to Shine Lawyers. [44] The plaintiff’s wife continued to correspond with Shine Lawyers through to the latter part of 2016 in relation to a potential claim by the plaintiff for total and permanent disability. [45] Against this background, the plaintiff was asked: [46]

The plaintiff said his wife had “been researching workers compensation claims for coal miners and thought that [he] should be classified as a coal miner”. [47] That led to the plaintiff telephoning Shine Lawyers on 3 May 2017. [48]

The plaintiff eventually spoke with Ms Lewis of Shine Lawyers on 7 July 2017, at which time Ms Lewis advised him that she would investigate the question of whether he was a coal miner for the purposes of the relevant legislation. [49] An appointment was arranged for the plaintiff to speak with Ms Lewis, along with John Palmieri of Shine Lawyers, on 12 July 2017. [50] The plaintiff said that the meeting on that day was the first occasion on which he had been told that he may have a claim for common law damages arising from the subject accident against the first and/or second defendant. [51] The plaintiff also said that Ms Lewis advised him on that occasion that in her opinion he fell within the definition of a coal miner. [52] That advice was confirmed in a letter from Ms Lewis of 13 July 2017. [53] The plaintiff received a further letter on 31 July 2017 setting out his common law rights arising from the subject accident and was advised to contact Ms Lewis to discuss the matter. Reference was also made to briefing counsel to provide advice. [54]

In relation to his consultation with Ms Lewis, the plaintiff was asked: [55]

In terms of his knowledge of the applicable limitation period, the plaintiff said: [56]

Subject to the conclusion that I reach regarding the plaintiff’s application for leave to commence proceedings against the first defendant, it may be necessary for me to consider the question of whether the plaintiff should be granted leave to revoke the election (if it be an election) he made to claim compensation. Should that point be reached, it will be necessary for me to determine whether, following that election, there was a further material deterioration in the plaintiff’s medical condition. As a consequence of all of those matters, it is necessary for me to consider the medical evidence. The entirety of such evidence runs to some 142 pages. [57] From the point of view of considering the question of any material deterioration in the plaintiff’s condition, the following matters of significance emerge from that evidence.

Dr Bookallil examined the plaintiff for the Workers Compensation insurer on 14 October 2010. He concluded that there was apparently a cervical arthropathy present, along with lumbar disease which was degenerative in nature. [58] He did not recommend any changes to the treatment regime which was operative at the time, although he considered that physiotherapy and hydrotherapy should not be continued as they provided the plaintiff with only temporary relief. [59]

Dr Bracken, to whom the plaintiff had been referred by Mr Lindgren for medico-legal purposes, examined him on 8 June 2011. He diagnosed a significant whiplash injury to the neck and lumbar spine and expressed the view that any further treatment of both areas would be conservative. [60] There was no suggestion that the plaintiff would ever come to surgery.

Dr Potter examined the plaintiff at the request of the Workers Compensation insurer on 16 August 2011. He concluded that there was “never the pattern of any structural injury [and] never the pattern of any spine derived pathology”, and that there had been a “misunderstanding of pathology”. [61] He diagnosed the plaintiff as suffering from “chronic widespread pain” with “no injury definable”. [62] He concluded [63] that the plaintiff had a complaint of chronic widespread pain which had “chronologically, but not by cause and effect, come from the episodes so described”. He also concluded [64] that there was no underlying degenerative process, no soft tissue injury and no aggravation of any pre-existing degenerative changes. In Dr Potter’s opinion, the plaintiff’s whole person impairment was 0%. [65] Consistent with these views, Dr Potter made no reference to the possibility of the plaintiff having to undergo surgery in the future.

As I have already noted, Dr Faithfull assessed the plaintiff’s level of whole person impairment at 10%. In doing so, he concluded that the injuries to the plaintiff’s cervical and lumbar spines each fell within DRE category II. [66]

The plaintiff was also referred to a number of specialists for treatment. Dr Anthony Schwarzer, Consultant Physician, diagnosed him with a “significant injury to his back and neck”. [67] Although part of Dr Schwarzer’s treatment consisted of administering various nerve blocks and carrying out denervation procedures (which provided the plaintiff with some relief from pain) there is nothing to suggest that he contemplated the need for surgery prior to the plaintiff making his claim for compensation. This remained the position through Dr Schwarzer’s treatment of the plaintiff up to 2014. [68]

The plaintiff was also referred to Dr Isaacs, Orthopaedic Surgeon, for treatment, who expressed the view on 8 July 2009 that he did not think that any surgery was indicated for the back or neck. [69]

Dr Ferch, a Neurosurgeon to whom the plaintiff was also referred for treatment, expressed the view (in the context of discussing management options) that the plaintiff was “unlikely to benefit from surgical treatment”. [70]

Consistent with all of these opinions, the plaintiff’s evidence was that at the time of finalising his claim for compensation he had not been told by any of his treating specialists that he would require major spinal surgery at any time in the future. [71]

Towards the end of 2016, the plaintiff experienced an increase in sciatic pain which was radiating into his feet. [72] He was again referred to Dr Ferch who, at that time, had not seen him for 7 years. [73] Dr Ferch noted that the plaintiff’s history included a progression of burning symptoms in his lower limb and referred him for an updated MRI scan and nerve conduction studies. [74] The MRI demonstrated mild degenerative changes with no neural compromise, and the nerve conduction studies did not demonstrate any significant abnormality. [75] When discussing these results with the plaintiff, Dr Ferch expressed the view that the plaintiff was unlikely to benefit from any surgery. [76]

The plaintiff was then referred to Dr Parkinson, Neurosurgeon, in October 2017 who recommended repeat imaging. [77] Following a review of that imaging, Dr Parkinson expressed the view [78] that the plaintiff was likely to experience improvement with fusion at levels L3/4, L4/5 and L5/S1. [79] This was the first occasion on which the plaintiff had been advised that surgery may be required. [80]

The plaintiff was also examined by Dr Bodel for medico-legal purposes on 2 February 2018 who expressed the view that there was a “strong possibility” that the plaintiff would need to consider a spinal fusion at L3-4. [81] Significantly, in assessing the level of the plaintiff’s whole person impairment at 16%, [82] Dr Bodel concluded that there had probably been “a deterioration in the level of whole person impairment since the assessment by Dr Faithfull in 2001”. [83] In arriving at that assessment, and consistent with the opinions of Dr Faithfull, Dr Bodel concluded that the injuries to the plaintiff’s cervical and lumbar spines fell within category DRE II. However, he added a loading of 2% in respect of the lumbar spine injury to reflect the interference with the plaintiff’s activities of daily living, and found that there was an 8% upper left extremity (i.e. shoulder) impairment which gave rise to an additional whole person impairment of 5%. [84] Significantly, Dr Bodel’s assessment of the level of the plaintiff’s whole person impairment was made on the assumption that the plaintiff would not undergo surgery. [85]

As events transpired, the plaintiff underwent multi-level fusion surgery by Dr Parkinson on 2 October 2018, [86] followed by revision surgery (again performed by Dr Parkinson) on 27 May 2019. [87] The plaintiff’s unchallenged evidence is that Dr Parkinson has advised him that he will require further surgery in the future. [88]

Finally, in the context of considering the nature and extent of the plaintiff’s injuries following the subject accident, I must make reference to particular aspects of the radiological evidence as it pertains to the plaintiff’s lumbar spine. On 17 December 2013, the plaintiff underwent an MRI scan of the lumbar spine by Dr Slater, whose report [89] included the following:

Given that there was no abnormality detected at any of these levels in December 2013 it can obviously be concluded that this was the position previously, and in particular, at the time when the plaintiff elected to claim, and then receive, compensation.

On 14 September 2017, shortly prior to consulting Dr Parkinson, the plaintiff underwent a lumbar discogram of L3-S1 by Dr Kos, whose report [90] included the following:

Finally, having consulted Dr Parkinson, the plaintiff underwent a three level provactive discography by Dr Goh on 20 March 2018 whose report included the following:

It follows that between 17 December 2013 and 14 September 2017, the plaintiff’s L314 disc had deteriorated from being normal to exhibiting a rupture. The L5-S1 disc had developed an annular tear over the same period.

There are a number of legislative provisions which are relevant to the orders sought in the three notices of motion. It is convenient to set out the entirety of those provisions at this point.

The further amended notice of motion filed by the plaintiff seeks an order for leave to commence proceedings pursuant to s 151D of the Workers Compensation Act 1987 NSW (“the WCA”).

The WCA was significantly amended on 27 November 2001 by the Workers Compensation Legislation Amendment Act 2001 (NSW) (the 2001 amendments). The 2001 amendments (inter alia) altered the right of a person injured at work to bring proceedings for damages independent of the Act. In particular, they altered:

However, Part 18 of Schedule 6 to the WCA (which was inserted by the 2001 amendments) provided as follows:

The effect of the 2001 amendments, therefore, was to create to regimes governing the payment of compensation and damages to coal miners on the one hand, and remaining workers on the other. A person who was a coal miner remained entitled to damages for non-economic loss pursuant to s 151G of the WCA. However, right of a worker who was not a coal miner to recover such damages was removed.

A further, and important, effect clause 3 of Part 18 of Schedule 6 was to preserve, in the case of coal miners, the provisions of s 151A of the WCA in the terms in which they appeared prior to the 2001 amendments, which were as follows:

Section 151D of the WCA imposes a time limit on the commencement of proceedings for common law damages and is in the following terms:

Section 105 of the Workplace Injury Management and Workers Compensation Act 1988 (NSW) (“the WIMA”) provides (inter alia) as follows:

It is noted that the Compensation Court Act 1984 (NSW) was repealed on 1 January 2004 by the Compensation Court Repeal Act 2002 (NSW).

Bearing in mind the provisions of s 105 of the WIMA, the term “coal miner matter” is defined in s 4 of that Act as meaning:

Section 294 of the WIMA is in the following terms:

Section 50C of the Limitation Act 1969 (NSW) (“the LA”) is in the following terms:

Section 50D is in the following terms:

The first application to be determined is the plaintiff’s application pursuant to s 151D(2) of the WCA for leave to commence proceedings against the first defendant. [91]

Senior counsel for the plaintiff emphasised that there was no dispute that the plaintiff was in fact a coal miner for the purposes of the WCA at the time of the subject accident and that accordingly, the 2001 amendments did not apply to him. It was submitted that the only available conclusion was that Mr Lindgren did not adequately advise the plaintiff of his rights because had had either misunderstood, or was ignorant of, the effect of the WCA. Senior counsel for the plaintiff submitted that such lack of understanding, or ignorance, of the correct position on the part of Mr Lindgren had manifested itself in a number of ways, including his failure to advise the plaintiff of the difference in the rights of a coal miner and the rights of other workers to whom the 2001 amendments applied, and his related filing of a claim for compensation under the WCA on the plaintiff’s behalf.

It was further submitted that having retained Mr Lindgren as a person whom he believed to be a competent solicitor, the plaintiff had no reason to question the advice that he was given. It was submitted, in particular, that it would be unreasonable to expect the plaintiff to have understood that as a coal miner for the purposes of the WCA, he had different rights to those of other workers. Senior counsel submitted that in all of these circumstances, the plaintiff's failure to commence common law proceedings against the first defendant in respect of the subject accident was entirely understandable.

Senior counsel further submitted that it was not until the plaintiff met with Ms Lewis in July 2017 that he became aware of the correct position, following which he took immediate and appropriate steps to commence proceedings. It was submitted that in all of these circumstances, the plaintiff’s explanation for the delay in commencing the proceedings was satisfactory, such delay having stemmed directly from the erroneous advice provided by Mr Lindgren.

In terms of the plaintiff’s case, it was submitted that the evidence established a prima facie case of negligence against the first defendant. Senior counsel submitted that as the plaintiff's employer, the first defendant owed him a non-delegable duty of care which encompassed a duty to provide a safe system of work, and which did not expose the plaintiff to a foreseeable risk of injury. It was submitted that prima facie, the first defendant had breached that duty and that in circumstances where the operator of the excavator loading the plaintiff’s truck was an employee of the first defendant, the first defendant was vicariously liable for the negligent act(s) or omission(s) of that employee. Senior counsel for the plaintiff also relied on the plaintiff’s assertion that the first defendant had failed to give proper instructions to its employees regarding the correct method of loading the truck.

Finally, senior counsel submitted that the evidence supported a conclusion that the first defendant would not suffer any prejudice in the event that leave was granted to the plaintiff to commence proceedings. He pointed out that the relevant insurer had been on notice of the plaintiff’s injury since his claim for compensation was first made and had exercised the opportunity to have the plaintiff medically examined following the accident (on the basis of which it had made payments of compensation). He also emphasised that there was no suggestion that the first defendant had been unable to fully investigate the circumstances of the subject accident at or about the time that it had occurred, nor was there any suggestion that any relevant witness was no longer available to give evidence.

It was submitted that in all of these circumstances, I would be comfortably satisfied that a fair trial could take place, and that the justice of the case warranted the application for leave being granted.

Bearing in mind the plaintiff’s case against the first defendant, counsel submitted that neither the file note of Mr Manion, nor any statement made by the plaintiff in support of his claim for compensation, had incorporated any suggestion that the plaintiff’s injuries were the consequence of the first defendant’s negligence. Counsel for the first defendant also pointed out that Mr Manion's file note made reference only to workers compensation entitlements and that no medical assessment had ever been sought for the purposes of the plaintiff making a claim for work injury damages. In all of these circumstances, it was submitted that the evidence did not establish a prima facie case against the first defendant.

Counsel for the first defendant further submitted that these omissions had arisen in circumstances where the evidence supported a conclusion that as a consequence of his earlier claim arising from the 1998 accident, the plaintiff had been aware of the difference between workers compensation benefits, and common law damages. It was submitted that in these circumstances, the significant delay in bringing the proceedings had not been adequately explained.

Counsel for the first defendant expressly accepted that he could not point to any actual prejudice which would be suffered by the first defendant in the event that leave to commence proceedings was granted. Notwithstanding that, and in light of the matters outlined above, he submitted that leave should nevertheless be refused.

Section 151D(2) of the WCA does not specify the criteria by reference to which the discretion to grant leave is to be exercised. However, a number of general principles which inform the exercise of the discretion emerge from the authorities. They include the following:

In addressing all of these issues, and having observed the plaintiff in cross-examination, I should state that he impressed me as an honest and reliable witness.

I turn firstly to the plaintiff’s explanation for the delay in bringing the proceedings. It is apparent that as a consequence of the 1988 accident, the plaintiff gained some degree of familiarity with common law damages claims arising out of accidents in the workplace. The plaintiff accepted that when the proceedings arising out of the 1998 accident were settled, he was aware that his former employer was paying damages because it had accepted that its negligence was the cause of the injuries he had suffered. However, on the whole of the evidence the plaintiff’s knowledge of such matters did not extend much beyond that. Indeed, the plaintiff’s evidence, which I accept, was that he understood that the money that he received from the settlement of those earlier proceedings was referable to medical expenses.

True it is that when cross-examined the plaintiff conceded that he was aware that there was a difference between compensation under the WCA on the one hand, and common law damages on the other. However, that does not lead to a conclusion that he knew the intricacies of the statutory scheme(s) which governed those respective entitlements, the respective avenues which had to be pursued in order to enforce them, or the factual or legal bases upon which the payment of compensation or damages could be obtained.

The plaintiff is not a lawyer. That is why he engaged a lawyer to give him advice about his entitlements arising from the subject accident. When he did so, he initially spoke with Mr Manion who had acted for him in the proceedings arising from 1998 accident, but who told him that he no longer practiced in this area of the law. Mr Manion referred the plaintiff to Mr Lindgren. However, before doing so, Mr Manion took instructions from the plaintiff which are set out in the file note which is in evidence. The nature of the file note, and the terms in which its contents are expressed, are entirely consistent with Mr Manion having taken initial instructions from the plaintiff with a view to referring the matter to Mr Lindgren.

Mr Lindgren advised the plaintiff that he was not a coal miner for the purposes of the Act. Bringing a common law action for damages against the first defendant was not addressed. There is no dispute that Mr Lindgren’s advice to the plaintiff was wrong. It was in those circumstances that the plaintiff brought a claim for compensation under the WCA in respect of which Mr Lindgren acted for him.

The plaintiff was cross-examined extensively about Mr Lindgren’s advice. It was not suggested to him that such advice had not been given in the terms he had asserted. Part of that cross-examination was directed towards the proposition that the plaintiff should have had concerns about that advice, and should have taken steps to address those concerns by (for example) speaking with Mr Manion, suggesting to Mr Lindgren that counsel be briefed, or obtaining a second opinion from another lawyer.

The plaintiff’s evidence, which I accept without reservation, was that he had no concerns about the advice that he was given by Mr Lindgren. It is entirely unsurprising that the plaintiff was unconcerned. He put his trust in Mr Lindgren to advise him correctly and appropriately as to his rights. Regrettably, Mr Lindgren did not do so. The fact that the plaintiff’s condition may have been deteriorating in the period during which Mr Lindgren was acting for him was not, in my view, a factor which should somehow have alerted the plaintiff to the possibility that Mr Lindgren’s advice was not correct. That deterioration did not alter the fundamental fact that the plaintiff relied upon Mr Lindgren, as his solicitor, to give him competent and correct advice.

The suggestion that the plaintiff should have instructed Mr Lindgren to brief counsel to determine whether there was a common law cause of action available to him is, in my view, somewhat unrealistic, as is the suggestion that he should have consulted another solicitor for a second opinion. Both suggestions completely overlook the fact that the plaintiff had no reason to question the advice that he was given. Moreover, I accept the plaintiff’s evidence that his priority was regaining his health.

The suggestion that the plaintiff should have spoken with Mr Manion is equally unrealistic. Not only did the plaintiff not have any reason to question the advice he had been given, Mr Manion had made it clear to him that he did not practice in this area any longer, which is why he referred the plaintiff to Mr Lindgren in the first place. Speaking with Mr Manion in those circumstances would have been a largely futile exercise.

In all of these circumstances, the period between 2011 (when the plaintiff first spoke with Mr Manion) and 2017 (when he first spoke with Ms Lewis) is adequately explained by the fact that, relying upon what Mr Lindgren had told him, the plaintiff was under the impression that his rights were limited to those provided by the WCA. In my view, there was no lack of diligence on the part of the plaintiff at any time during that period. I accept the submission of senior counsel for the plaintiff that in terms of his position as against the first defendant, the plaintiff sought advice, he received advice, and there was no reason for that advice to be questioned or revisited until such time as he consulted Ms Lewis.

What motivated the plaintiff’s wife to undertake enquiries as to the issue of workers’ entitlements is not apparent. However in my view, that is largely immaterial. The more significant factor is the plaintiff’s unchallenged evidence that he was not aware of any relevant limitation period, and that until such time as he spoke with Ms Lewis he did not know that he may have a claim for common law damages. I also accept that as soon as Ms Lewis advised him, he instructed her to proceed with the filing of a Statement of Claim.

In considering the question of prejudice, I expressly recognise that the rationales referred to by McHugh J in Brisbane South include the fact that people should be able to arrange their affairs, and utilise their resources, on the basis that claims can no longer be made against them, and that the public interest requires disputes to be settled as quickly as possible. At the same time, a determination of whether leave should be granted is one which must be made having regard to the individual circumstances of the particular case. In the present case, counsel for the first defendant expressly conceded that he was unable to point to any actual prejudice which would arise in the event that leave was granted. He accepted that the first defendant had not been deprived of the opportunity to investigate the circumstances of the accident, interview relevant witnesses, and have the plaintiff medically examined. It follows that the first defendant has not lost the opportunity to make any relevant enquiry, be it as to liability or damages. Any presumptive prejudice must necessarily be minimal in those circumstances. Although the absence of any prejudice is obviously not conclusive, it weighs in favour of leave being granted.

In making an assessment of the strength of the plaintiff’s case, it must firstly be recognised that in an application of this kind any such assessment can obviously only be made at a threshold level. In advancing the proposition that the weakness of the plaintiff’s case was a factor weighing against a grant of leave, counsel for the first defendant relied upon two principal factors.

The first was that the file note of Mr Manion was essentially bereft of the detail of the subject accident which had been set out in the plaintiff’s most recent affidavit. Whilst that may be the case, it is entirely explicable when one considers the circumstances in which Mr Manion’s file note was created. Mr Manion was engaged in an initial consultation with the plaintiff. He was doing so in circumstances where he (Mr Manion) had explained that he could not act for the plaintiff and would refer the matter to Mr Lindgren. Mr Manion was not giving, and was not intending to give, advice. He was taking initial instructions. That his file note was summary in nature is completely understandable in those circumstances. Further, although the file note was less detailed in terms of the circumstances of the subject accident, the matters recorded by Mr Manion, obviously based upon what the plaintiff told him, are not inconsistent with the plaintiff’s most recent affidavit.

The second was that in providing instructions to Mr Lindgren the plaintiff omitted the details of the subject accident which he set out in his most recent affidavit. The plaintiff’s evidence was that he had told Mr Lindgren all of the relevant details. I accept that to be the case. That he would not have done so is contrary to common sense. The plaintiff had no reason not to give Mr Lindgren a full account of what had occurred. The absence of such detail in written documents prepared by Mr Lindgren may well be explained by the fact that Mr Lindgren obviously took the view (erroneously) that that the plaintiff’s entitlements were limited to those conferred by the WCA. In these circumstances, it is most unlikely that Mr Lindgren’s focus was directed to matters, proof of which was necessary in order to establish a claim for common law damages, but which were immaterial to a claim under the WCA.

I am unable to accept the proposition advanced by counsel for the second defendant that the plaintiff’s case is weak, and that this is a factor which militates against a grant of leave. The account provided by the plaintiff in his affidavits, particularly the most recent, would, if accepted, establish a breach of the first defendant’s non-delegable duty of care.

Finally, I should note that a submission was advanced by counsel for the first defendant, albeit in somewhat vague terms, to the effect that Mr Lindgren’s error in failing to provide correct advice should be visited on the plaintiff. No authority was cited in support of that proposition.

Having regard to all of these matters, I am satisfied that the delay in bringing the proceedings has been adequately explained. Such delay will not, in my view, render the proceedings unfair to the first defendant, and will not prejudice the first defendant in any material way. Further, the plaintiff has made out a prima facie case in negligence against the first defendant. The justice of the case therefore warrants an order granting the plaintiff leave to commence proceedings.

Having concluded that the plaintiff should be granted leave to commence the proceedings, I must consider the effect of the plaintiff’s election (if it be an election) to accept the payment of compensation under the WCA. Shortly put, it is the plaintiff’s submission that any election purportedly made by the plaintiff does not, in the circumstances of the present case, amount to a valid election at all. In the event that I reach the contrary conclusion, the plaintiff seeks leave to revoke such election pursuant to s 151A(5) of the WCA. [100]

The determination of this application necessarily incorporates a determination of the first defendant’s application [101] for an order that the plaintiff’s statement of claim be struck out pursuant to rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW), an order . That order is sought on the basis that the statement of claim has been filed in breach of s 151A(2) of the WCA because of the plaintiff’s election to claim compensation.

Senior counsel for the plaintiff again emphasised that the plaintiff was a coal miner for the purposes of the WCA that accordingly, the 2001 amendments did not apply to him. It was submitted that Mr Lindgren had failed to appreciate such matters when he was advising the plaintiff, and that it was as a consequence of such erroneous advice that the plaintiff had made his claim for compensation pursuant to the WCA as if he were a “worker at large". It was submitted that in these circumstances, the basis upon which the plaintiff had made his claim had no application to him as a matter of law, and that he was therefore not entitled to the compensation that he had received and accepted. It was submitted that in these circumstances, any compensation paid to him consequent upon his claim was paid in error.

Senior counsel submitted that such a conclusion was fortified having regard to the jurisdiction of the Workers Compensation Commission (“the Commission”). It was submitted that at the time of purporting to award the plaintiff compensation under the WCA, the Commission had no jurisdiction to do so because the plaintiff was a coal miner, and that the exclusive jurisdiction to determine matters pertaining to the payment of compensation to such persons was conferred on the District Court of New South Wales. It was submitted that as a consequence, the compensation received by the plaintiff was a nullity.

In the alternative, senior counsel submitted that if I were to find that a valid election had been made, the plaintiff should be granted leave to withdraw it pursuant to s 151A(5) of the WCA. It was submitted that at the time of making any election, the plaintiff had received only conservative treatment for his injuries, and had not been given any indication that his condition was likely to deteriorate to the point where he would require surgical intervention. It was submitted that had such surgery been carried out prior to the claim being made, the amount of compensation payable would obviously have been affected.

In all of these circumstances, it was submitted that I should conclude that the plaintiff had satisfied each of the criteria in s151A(5)(a)-(c) of the WCA and had thus enlivened the Court’s jurisdiction to grant leave. It was submitted that in terms of the exercise of the discretion conferred by s 151A(5), there was no reason to properly refuse a grant of leave. Senior counsel submitted, in particular, that it was plain that any election made by the plaintiff to accept the payment of compensation was brought about by the incorrect advice provided to him by Mr Lindgren.

Counsel for the first defendant submitted that the plaintiff had clearly made a claim for compensation under the Act, and that such compensation had been paid in accordance with the determination of the Commission contained in its Certificate of Determination issued pursuant to s 294 of the WIMA. It was submitted that this Certificate had not been revoked, and accordingly remained a binding determination made by the Commission.

In these circumstances, counsel for the first defendant submitted that s 151A(3)(b) of the WCA had been satisfied by the plaintiff’s acceptance of the compensation paid to him, and that as a consequence the plaintiff had ceased to be entitled to recover common law damages in respect of his injuries. Counsel further submitted that even if it were concluded that the payment of compensation was accepted by the plaintiff in error, be that an error on the part of the plaintiff himself or on the part of his solicitor, that did not alter the fact that there had been an election within the meaning of s 151A(3)(b) of the WCA. In this regard counsel for the first defendant referred me to the decision of the Court of Appeal in Dunn v Firth. [102]

In terms of the Court’s discretion to grant leave to revoke the election, counsel for the first defendant submitted that the evidence did not support a conclusion that there was a deterioration in the plaintiff’s medical condition after 2012. Counsel relied, in particular, on the opinions expressed by Dr Ferch set out in his report of 17 November 2016. [103] Counsel pointed to the fact that at the time of his review of the plaintiff on that day, Dr Ferch had not examined him for a period of 7 years, and that there was nothing in the report of Dr Ferch which supported the conclusion that there had been a relevant deterioration in the plaintiff’s condition.

It is common ground that the plaintiff was a coal miner at the time of the subject accident. His claim for compensation under the WCA was clearly a “coal miner matter” as defined in s 4 of the WIMA, because it was a matter arising under the WCA concerning a claim in respect of a worker employed in or about a mine.

The plaintiff’s claim was determined by the Commission, who purported to issue a Certificate of Determination pursuant to s 294 of WIMA ordering that the plaintiff be paid a total sum of $26,437.50. However, the Commission had no jurisdiction to determine the plaintiff’s claim, or make those orders. The jurisdiction to do so was the exclusive jurisdiction of the District Court of NSW pursuant to s 105(4A) of the WIMA.

Pursuant to s 151A(3)(b) of the WCA, a person makes an election, or is taken to have made an election, is taken to have made an election, under s 151A(2) by (inter alia) accepting payment of permanent loss compensation. In the present case however, the Commission’s order for the payment of such compensation was a nullity, because the compensation was paid to the plaintiff pursuant an order which the Commission had no jurisdiction to make. If a purported determination is affected by a lack of jurisdiction to make it, it is no determination at all. [104] In these circumstances, the Commission’s determination of the claim for compensation made by the plaintiff was a nullity and of no effect, as was his acceptance of the compensation paid to him. In these circumstances, I am satisfied that any election purportedly made by the plaintiff did not amount to a valid election within the meaning of s 151A(3)(b) of the WCA.

In my view, the decision in Dunn does not assist the first defendant. I accept there is a broad similarity between the position of the appellant in that case, and that of the plaintiff in this case, in that the appellant in Dunn had elected to accept the payment of compensation in the absence of being advised by her solicitor (the respondent) of her entitlement to common law damages. However, the question for the Court on appeal [105] was the value of the appellant’s loss as a consequence of the failure of her solicitor to properly advise her. The judgment of the Court says nothing about what may or may not constitute a valid election for the purposes of s 151A(3) of the WCA.

In the event that I am wrong in my determination, and if the plaintiff’s election was valid, I am of the view that this is an appropriate case to exercise the discretion conferred by s 151A(5) of the WCA and grant leave to the plaintiff to revoke that election. Section 151A(5) requires the plaintiff to satisfy three prerequisites before the discretion can be exercised in his favour.

The first prerequisite [106] is that the plaintiff elected to claim compensation. Accepting for this purpose that the plaintiff’s election was valid, there is no dispute that a claim for compensation was made.

The second prerequisite [107] is that following such election, the injury caused a further material deterioration in the plaintiff’s medical condition that, had it existed at the time of the election, would have entitled the plaintiff to additional compensation. [108] In my view, this requirement is also satisfied.

The medical evidence to which I have referred clearly establishes that over the period between 2011 and 2018, the plaintiff’s condition deteriorated substantially. In the period immediately following the subject accident the general consensus of medical opinion was that the plaintiff’s condition would be treated conservatively. Surgical intervention was not contemplated. However, by 2017 the plaintiff’s condition had deteriorated to the point where Dr Parkinson saw fit to carry out multi-level fusion surgery, followed by revision surgery. Consistent with that, the radiological evidence demonstrates a significant deterioration in the plaintiff’s lumbar spine at L3/4 and L5/S1.

Further, the opinion of Dr Bodel, who carried out his assessment by reference to the initial assessment of Dr Faithfull, supports the conclusion that had the plaintiff’s condition at the time of his examination been the condition prevailed at the time of the plaintiff’s compensation claim, he would have been entitled to an additional sum. In this regard, counsel for the first defendant expressly conceded that under the relevant guidelines, the fact of a spinal fusion would elevate the category of assessment from DRE II to DRE IV which would, in turn, elevate the level of the plaintiff’s whole person impairment to a range of 20% to 23%. That is substantially greater than the assessment made by Dr Faithfull and would entitle the plaintiff to additional compensation over and above that which he received.

The third prerequisite [109] is that at the time of the election, there was no reasonable cause to believe that the further deterioration would occur. In The State of New South Wales v Taylor [110] the majority of the High Court [111] concluded (inter alia) that the reasonable cause for belief is determined by reference to the evidence concerning the plaintiff’s condition, and expert opinion as to what the medical prognosis for that condition, at the time. It is the Court’s view of all of the evidence, and not the belief of the plaintiff (be it reasonable or otherwise) that is decisive. Ultimately, the question is whether, given the medical condition of the plaintiff and the expert opinion as to prognosis, it would be unreasonable for a person to believe that the condition would further deteriorate as it had.

The plaintiff must prove a negative. He must show that it would be unreasonable for a person to hold that belief. He will prima facie discharge that onus by tendering evidence that such a belief could not be reasonably held. If the plaintiff succeeds in doing so, the defendant bears an evidentiary burden to show that there exists another body of evidence that indicates a contrary conclusion. If, on the evidence, two opposite beliefs may have been reasonably open as to whether the further deterioration would occur, then the application for revocation will fail.

Based on the medical evidence to which I have previously referred, I am satisfied that it would be unreasonable to conclude that at the time of the plaintiff’s election he had cause to believe that there would be further deterioration in his condition. No medical practitioner who examined the plaintiff at, or in the period leading up to, the time at which the payment of compensation was accepted, proffered the slightest suggestion that such deterioration would occur. On the contrary, many of them recommended the continuation of conservative treatment. Moreover, there was nothing in the plaintiff’s reported symptoms at or around the time of his election which was suggestive of such deterioration.

Each of the prerequisites in s 151A(5)(a)-(c) having been established, and in the event that it were concluded that the plaintiff made a valid election, he should be granted leave to revoke that election.

The notice of motion filed by the second defendant seeks a separate determination of the question whether the plaintiff’s proceedings against the second defendant are out of time and not maintainable having regard to the provisions of the LA.

Counsel for the second defendant accepted that reservations have been expressed regarding the appropriateness of making a separate determination of a limitation issue in advance of a trial. [112] However, he submitted that the present case was an appropriate one in which to make such a preliminary determination. Senior counsel for the plaintiff, whilst acknowledging that it remained a matter for the Court, did not oppose that course.

In my view, given that the circumstances of the subject accident and its aftermath have been fully canvassed in the evidence which is before the Court, the present case is an appropriate one in which to order that the limitation issue as between the plaintiff and the second defendant be determined separately. The parties conducted the hearing of the second defendant’s motion of motion on the assumption that I would come to that view.

Counsel expressly accepted that the second defendant bore the legal and evidentiary onus of establishing that the plaintiff’s cause of action was not maintainable. He submitted (and it is not in dispute) that in light of the fact that the proceedings were commenced by the plaintiff on 20 June 2018, the relevant date for the purposes of s 50C(1) of the LA is 20 June 2015.

Counsel submitted that the plaintiff knew, at the time of the subject accident, that he:

It was submitted that the plaintiff’s knowledge of such matters was sufficient to support a finding that he knew, prior to June 2015, that his injury was caused by the fault of second defendant.

It was further submitted that in terms of that knowledge, the plaintiff’s earlier common law proceedings arising from the 1998 accident provided a “very useful yardstick,” in circumstances where the evidence established that prior to 20 June 2015, the plaintiff knew that he had:

Counsel submitted that it was clear on the evidence that the plaintiff knew that the site was operated by an entity which was different to his employer, and which had its own obligations, over and above those of his employer, as to the safety of the site. Counsel pointed to the plaintiff’s belief that in its capacity as the operator of the site, the second defendant’s use of a grader, as opposed to a bulldozer, to prepare the dump site was (at least in part) the cause of the subject accident, and that he had held that belief in at least May 2011 when he spoke with Mr Manion. It was submitted that this was sufficient to amount to knowledge of fault on the part of the second defendant.

In the alternative, counsel for the second defendant submitted that the plaintiff had, prior to 20 June 2015, constructive knowledge of the fact that his injury was caused by the fault of second defendant. It was submitted that the plaintiff had not taken all reasonable steps prior to 20 June 2015 to ascertain the fact that his injury was caused by the fault of the second defendant. In this regard, counsel for the second defendant pointed specifically to the fact that the plaintiff:

Whilst accepting that the plaintiff had been advised by Mr Lindgren that he was not a coal miner for the purposes of the WCA, counsel submitted that in circumstances where the plaintiff had some knowledge of common law causes of action in light of his earlier proceedings arising from the 1998 accident, he had failed to seek any advice about whether such a claim was available against the second defendant in respect of the subject accident. It was further submitted that even when told in the latter part of 2012 that Mr Lindgren could no longer give him advice, the plaintiff did not seek another opinion for several years. Counsel submitted that this had occurred in circumstances where the plaintiff knew that had suffered loss, and knew the relevant facts which, if accepted, established fault on the part of the second defendant.

Senior counsel for the plaintiff conceded that the evidence supported a conclusion that prior to 20 June 2015 the plaintiff had the requisite knowledge for the purposes of s 50D(1)(a) of the LA, namely knowledge that the injury had occurred. However, it was submitted that prior to 20 June 2015, the plaintiff:

It was submitted that although the plaintiff was aware, on and from the time of the subject accident, of the facts giving rise to his injury, this was not sufficient to establish knowledge of “fault” within the meaning of s50D(1)(b) of the LA. Senior counsel submitted that the evidence established that the plaintiff had had not been advised, at any time, that the circumstances of the subject accident gave rise to a legal liability on the part of the second defendant, and that he was unaware of the legal significance of the second defendant’s occupation of the mine site, or of any involvement of the second defendant in setting up a system of work, until he consulted Ms Lewis in or about August 2016. It was submitted that in all of these circumstances, the second defendant had failed to establish that the plaintiff was aware, prior to 20 June 2015, of the fact that his injury was caused by the fault of the second defendant.

Further, in terms of s 50D(1)(c) of the LA, senior counsel submitted that the second defendant had failed to establish that the plaintiff knew that his injury was one for which the law would hold the second defendant liable in damages which would be sufficiently large to warrant action being taken.

In terms of s50D(2) of the LA, it was submitted that in circumstances where the plaintiff had no basis to question the advice he had been given, the plaintiff had taken all appropriate and timely steps by:

Senior counsel further submitted that a conclusion that the plaintiff had taken all reasonable steps was unaltered by the fact of his previous common law claim arising from the 1998 accident, because the plaintiff had failed to appreciate that there was a distinction between compensation on the one hand and damages on the other. It was further submitted that the previous claim did not support a conclusion that the plaintiff ought to have been expected to appreciate the legal implications of the second defendant’s occupation and operation of the mine site.

It was submitted that in all of these circumstances, the failure on the part of Mr Lindgren did not render the factors in s50D(1)(b) and (c) of the LA something that the plaintiff ought to have known, for the purposes of s 50D(2), any earlier than he did.

There is no issue that the plaintiff knew, prior to 20 June 2015, that his injury had occurred. [114] This leaves the following questions for determination:

If I am satisfied that the plaintiff knew each of those facts, then his action against the second defendant is not maintainable.

If I am not satisfied that the plaintiff knew one or other (or both) of those facts, then I must consider a third question, namely whether he ought to have known such fact(s).

In Baker-Morrison v The State of NSW [115] Basten JA concluded that for the purposes of s 50D(1)(b) of the LA, what must have been known by a plaintiff are the key factors necessary to establish legal liability against, as opposed to moral blameworthiness on the part of, the proposed defendant. There is no requirement that the plaintiff to be able to articulate a cause of action in terms of (for example) negligence. [116] The submissions of counsel for the defendant sought to challenge aspects of the reasoning in Baker-Morrison but accepted that the decision is one by which I am bound.

The correctness of the approach set out by Basten JA in Baker-Morrison was confirmed by Beazley JA (as Her Excellency then was) in State of New South Wales v Gillett. [117] Her Honour also concluded [118] that for the purposes of the term “fault” as that term is used in s50D(1)(b) of the LA, it is incumbent upon a defendant to establish that the plaintiff knew that the matter was legally actionable. The determination of the question posed by s 50D(1)(b) involves an evaluative judgment as to the causal relationship between the injury on the one hand and the defendant’s fault on the other, the latter referring to fault which engages or establishes legal liability as opposed to moral blameworthiness. [119]

The plaintiff knew that Mr McCluskey was an employee of the first defendant and had breached the safety rules of the mining site in a number of different respects, as a consequence of which he (the plaintiff) had been put in danger. The plaintiff also accepted when cross examined [120] that at least from the time that he consulted Mr Manion, he considered that the second defendant had failed to:

All of those matters which the plaintiff accepted that he knew are key factors necessary to establish legal liability on the part of the second defendant. They led the plaintiff to conclude that the second defendant was at least partly at fault. However, that does not mean that the plaintiff knew that such fault was actionable, [121] or in other words, that he knew that such fault established a legal liability in the second defendant. [122] Neither Mr Manion nor Mr Lindgren ever advised the plaintiff in those terms, in circumstances where I am satisfied that he had provided a full account of what had occurred.

For the reasons already set out, I accept that the plaintiff was unconcerned with the advice that he had been given by Mr Lindgren. The absence of concern was completely justified. The plaintiff had retained Mr Lindgren as his lawyer and had no reason to question the advice that he had been given. In those circumstances he had no reason to ask Mr Lindgren to brief counsel. Similarly, he had no reason to go back to Mr Manion, or to obtain a second opinion. It was not until he saw Ms Lewis that the plaintiff first became aware that those circumstances surrounding the subject accident which were within his knowledge established fault, in the sense of establishing a legal liability, against the second defendant.

The second defendant has therefore failed to satisfy me that prior to 20 June 2015 the plaintiff knew that his injury was caused by the fault of the second defendant within the meaning of s 50D(1)(b) of the LA.

What is required for the purposes of s 50D(1)(c) of the LA is knowledge that the damages which may be recovered were large enough to be worth the time and trouble of commencing an action. [123] Although the plaintiff’s treatment was, for a long time conservative, and although his condition deteriorated over time, the evidence establishes that virtually from the outset he was referred to a number of specialists and underwent regular treatment, particularly by Dr Schwarzer, largely because he regularly complained of pain.

I am satisfied that certainly by the time of his acceptance of the payment compensation in early 2012, the plaintiff considered that he had been seriously injured. In these circumstances, the test under s 50D(1)(c) is satisfied.

Having concluded that the plaintiff:

I am not satisfied that the plaintiff ought to have known, prior to 20 June 2015, that his injury was caused by the fault of the second defendant. In short, the plaintiff sought and obtained advice from Mr Lindgren, and did so in a timely fashion. I am satisfied that in doing so, the plaintiff provided comprehensive instructions to Mr Lindgren setting out the entirety of the circumstances of the subject accident. In those circumstances, the relevant enquiry becomes what Mr Lindgren told the plaintiff. [124] Mr Lindgren told the plaintiff that he was not a coal miner and that he had an entitlement to lump sum compensation. The instructions provided to Mr Lindgren ought to have alerted him to the issue of a potential claim for common law damages. However, that issue was never canvassed, the essence of his advice being that the plaintiff had an entitlement to lump sum compensation.

Having retained Mr Lindgren to advise him, the plaintiff was perfectly entitled to act in accordance with the advice that he was given. He was entitled to, and obviously did, believe that Mr Lindgren was acting in his best interests, giving him the correct advice, and pursuing whatever remedies were available. There was nothing which caused, or should have caused, the plaintiff to question the advice that he had been given, or the steps that Mr Lindgren was taking on his behalf.

Although the plaintiff had prosecuted a previous common law claim for damages arising out of the 1998 accident, that does not lead to a conclusion that he was aware of the intricacies of, or the differences between, the schemes for the payment of workers compensation on the one hand, and common law damages on the other. I am satisfied that the plaintiff was not aware of such matters, nor was he aware of the legal principles to be applied in determining liability at common law. When he accepted the payment of lump sum compensation, he did so because he had been advised by Mr Lindgren that this was the totality of his entitlement. It follows that in large measure, the plaintiff’s failure to commence proceedings against the second defendant stemmed from the advice he had been given by Mr Lindgren, which he understandably saw no reason to question.

The evidence establishes that the plaintiff experienced a deterioration in his condition in or about 2016 which gave rise to psychological issues, leading to his admission to hospital. That, in part, led him to consult Ms Lewis. It was at that time that he first became aware that he may have a claim for common law damages against the second defendant. None of the advice given by Mr Lindgren prior to that time canvassed that question to any degree whatsoever. Moreover, it was not until the plaintiff consulted Ms Lewis that he became aware of the applicable limitation period.

In light of all of these matters, I am satisfied that the plaintiff took all reasonable steps for the purposes of s 50D(2) of the LA. I am not satisfied that he ought to have known, prior to 20 June 2015, that his injury was caused by the fault of the second defendant.

In all of these circumstances, the second defendant’s limitation defence fails.

I make the following orders: