‘Complex’ NSW legal process thwarts Qantas employee until now
The NSW District Court (DC) has granted a Qantas Airways Ltd freight co-ordinator leave to start an out-of-time workplace injury damages claim that alleges his employer was negligent.
Judge Leonard Levy found Qantas, which shouldered a presumptive onus, could not show extending the limitation period would cause it to suffer significant prejudice. He also said if Warren Davis’s “claim in negligence, as pleaded, is found to be successful in all respects, without attempting a precise quantification, it seems that the potential damages award would be of the order of several million dollars”.
On August 1, 2008, Davis was employed as an airport freight co-ordinator. Davis’s duties required him to repetitively move and manipulate items of bulk palleted freight in and out of aircraft holds. On that date, the mechanical apparatus that ordinarily enabled palleted freight to be rolled about for such work duties was inoperable.
Davis was therefore required to manually pull a heavy pallet out of an aircraft hold without mechanical or additional manual assistance. This resulted in him sustaining a brachial plexus injury to his cervical spine, which has left him with severe neurological impairments. It has, in turn, precluded him from working. He continues to suffer very significant disabilities.
On August 12, 2008, Qantas accepted liability for Davis’s right shoulder injury. Thereafter, between 2008 and 2011, “a labyrinthine process of the required workers’ compensation claim procedures was pursued on his behalf. That process included various acceptances, declinatures, and consent orders, along with medical assessments”, Judge Levy recounted.
On August 2, 2013, the NSW W/Comp Commission (WCC) issued Davis with a 6% whole-person impairment (WPI). “The further complex whole person review process and associated medical examinations continued until May 4, 2016. It meant the running of time for Davis to file proceedings were suspended and restarted “several” times”. Judge Levy said the WCC in May 2016 determined Davis’s WPI was 22%, which triggered his entitlement to bring proceedings to claim damages for the injury.
The total lapse of time from the Davis’s injury date to his notice of motion being filed was 525 weeks, or 10.09 years, “which on its face is a very significant period of time”.
However, because of W/Comp Act 1987 s151DA provisions, the running of time was suspended for several periods totalling 290 weeks, Judge Levy said. “The remaining non-consecutive 235 weeks, or 4.5 years, represent delays requiring explanation.”
At the DC hearing, that delay was identified as becoming shortened by a further 10 months, “thereby requiring an explanation of the delays in an aggregate period of less than four years”, Judge Levy said.
By affidavit, Warren submitted that within two weeks of Qantas’s initial decision to decline liability he instructed solicitors to investigate diagnosis and assessment matters. Davis started proceedings on June 15, 2009, “to seek to overcome” Qantas’s decision to refuse liability. And thereafter, “a tortuous procedural course was pursued”.
It led Davis being allocated the 22% WPI on May 4, 2016, which permitted him to bring a work injury damages claim.
‘Procedural impediments have caused delay’
Judge Levy (above) said the procedural course throughout the intervening years was marked by “impediments” that caused delay.
“In that regard, [Davis’s legal] representatives acted properly, and as early as August 21, 2012, placed [Qantas] on notice the potential claim was in contemplation.”
“In reality”, Judge Levy said the relevant delay was, in effect, two months outside the s151D limitation period when suspension and recommencement of time considerations were taken into account. He was satisfied those circumstances represented a “sufficiently adequate and satisfactory explanation” for the delay. Judge Levy said the evidence revealed Davis “had not made a deliberate decision” to allow the statutory limitation period to expire.
Instead, Davis was guided by legal advice that was reasonable in the circumstances of a complicated legislative framework.”
A discretionary allowance should be made in Davis’s favour on that account. That was because his conduct did not involve “procedural default or dilatoriness, in the absence of significant prejudice”.
Judge Levy concluded Qantas had “not pointed to any actual or significant prejudice apart from the presumptive prejudice that ordinarily arises in contested litigation”.
In circumstances where the evidence Davis adduced led to the conclusion there was no significant prejudice, Judge Levy said Qantas “has not discharged its evidentiary onus to rebut that conclusion”.
Judge Levy left the costs of the motion to the trial judge to determine after all other issues were decided. (Davis v Qantas Airways Ltd , NSWDC 260, 20/09/2018)