Too Little, Too Late: Gower v State of New South Wales [2018] NSWCA 132

Background

On 12 September 2003 Mr Gower suffered injury when a student threw a soccer ball at him, causing him to break his nose. He also suffered a long-term psychological injury, being a major depressive disorder.[1] Mr Gower was a substitute teacher at the time of the incident.

In order to make a claim for work injury damages, it must be “fully ascertainable” for an approved medical specialist to establish that the degree of Mr Gower’s permanent impairment from the injury is at least 15% (threshold).[2] Mr Gower underwent numerous medical assessments, however it was not until 13 May 2014 he obtained a medical assessment certificate confirming that his injury satisfied the threshold requirement.

Mr Gower commenced proceedings (without leave) in the New South Wales District Court on 23 March 2016. The respondent filed a notice of motion seeking orders that the proceedings be struck out.[3] In response, a motion was filed on behalf of Mr Gower to seek leave to commence proceedings (as required by the Workers Compensation Act 1987 (NSW) (WCA)) to extend the three-year limitation period in order to enable an action for work injury damages under the Workers Compensation Act 1987 (NSW) (WCA) against his former employer.[4]

Primary Judge’s Decision

The Primary Judge, Gibson DCJ, agreed with the respondent to strike out and dismiss proceedings, prompting an appeal to dispute the findings that Mr Gower:

1. under the advice of his solicitor deliberately allowed the limitation period to expire;
   
   
2. did not fully or satisfactory reason delay to commence proceedings;
   
   
3. did not have a sufficiently strong case to warrant extension of time; and
   
   
4. failed to prove that there was no actual prejudice in his cause of action despite the unavailability of witnesses and documents.

Appeal

By majority, the New South Wales Court of Appeal (NSWCA) dismissed the appeal (Basten JA and White JA, Simpson AJA dissenting). In reaching their decision, the NSWCA assessed the following:

Issue 1: Whether Gibson DCJ made errors in her Honour’s judgment

• Deliberate and unreasoned delay of proceedings
  
  

Despite Mr Gower receiving advice about the limitation period, White JA and Simpson AJA deemed that it was not unreasonable to commence proceedings after finding that the degree of permanent impairment satisfies the threshold.[5]

• Apparent weakness of claim
  
  

Mr Gower sought to forward an assertion made by Mr Nelson, a colleague, who expressed on 14 February 2017 that the school had a ‘no balls’ policy. Mr Gower therefore sought to allege that the respondents were negligent in failing to uphold the policy. Although the statement was not disclosed in Mr Gower’s pre-filing statement (as required by the Workplace Inquiry Management and Workers Compensation Act 1998 (NSW)),[6] White JA considered that Mr Gower’s claim of negligence was nonetheless weak and could not be established.[7]

• Actual prejudice
  
  

White JA (Basten JA agreeing) held that actual prejudice was established for the respondent due to the death of a (different) student. On or about 19 August 2003, the same student allegedly deliberately kicked a soccer ball at the back of Mr Gower’s head. The student died on 5 September 2012. Mr Gower only made the allegation for the first time on 21 January 2015. The evidence could have been significant to demonstrate Mr Gower’s proposition that there was a known propensity of students to engage in such conduct.[8]

Moreover, White JA considered Mr Gower’s failure to give notice of his intention to make a claim for alleged negligence during the limitation period as a relevant factor causing prejudice for the respondents.[9] The respondents noted that the presumption of prejudice arises due to delay as there is a higher likelihood of failing memories.[10] White JA suggested that Mr Nelson’s failure to comment on the policy beforehand raises reliability concerns.[11]

White JA disagreed with the respondents view that the respondents would face significant actual prejudice with respect to the unavailability of some medical and school records caused by the expiration of the relevant institutions’ record keeping duties.[12] Similarly, White JA did not consider that significant actual prejudice was established in respect to the unavailability of the other student (who caused the injury in September 2003), principal and deputy principal of the school at the time of the incident, being either unresponsive to inquiries or were not attempted to be contacted or located.[13] In any case, actual prejudice had been established in relation to the student who had passed away as the respondents were prevented the opportunity to rebut Mr Gower’s allegation that the student deliberately kicked the ball at his head.

Issue 2: Whether the NSWCA should extend the limitation period

Although the NSWCA (by majority) found that Gibson DCJ erred, the errors were insufficient to warrant an extension of the limitation period. This was due to the combination of the plaintiff’s weak case and the significant actual prejudice for the respondents.

Moving forward

The NSWCA was reluctant to exercise discretion to extend the limitation period despite exposing errors in Gibson’s DCJ’s judgment. Although the appeal was refused, the NSWCA did demonstrate an availability for plaintiffs to make claims after the expiration of the limitation period so long as the plaintiff’s case is strong, and the respondent is not prejudiced by evidence affected by time.

[1] Gower v State of New South Wales [2018] NSWCA 132 [1] (19 June 2018).

[2] Workplace Inquiry Management and Workers Compensation Act 1998 (NSW) s 322(4) and Workers Compensation Act 1987 (NSW) s 151H.

[3] Gower v State of New South Wales [2018] NSWCA 132 [2] (19 June 2018).

[4] Workers Compensation Act 1987 (NSW) s 151D.

[5] Ibid [96]-[104], [231-238].

[6] Workplace Inquiry Management and Workers Compensation Act 1998 (NSW) s 318(1)(d).

[7] Gower v State of New South Wales [2018] NSWCA 132 [189] (19 June 2018).

[8] Ibid [161].

[9] Ibid [188].

[10] Ibid [170].

[11] Ibid [189].

[12] Ibid.

[13] Ibid [161].