Mancini v Thompson [2002] NSWCA 38 (2 May 2002)

Last Updated: 7 May 2002

NEW SOUTH WALES COURT OF APPEAL

CITATION: Mancini v Thompson [2002] NSWCA 38

FILE NUMBER(S):

40978/00

HEARING DATE(S): 20 November 2001

JUDGMENT DATE: 02/05/2002

PARTIES:

Peter Mancini (Appellant)

Eric Thompson (Respondent)

JUDGMENT OF: Beazley JA Stein JA Rolfe AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 125/99, DC 3807/99

LOWER COURT JUDICIAL OFFICER: Phegan DCJ; Sorby DCJ

COUNSEL:

Appellant - S G Campbell

Respondent - W P Kearns SC/R Hanlon

SOLICITORS:

Appellant - Thomas Laycock

Respondent - Smythe & Mallam

CATCHWORDS:

MOTOR ACCIDENTS - Late claim - application for dismissal of proceedings - Motor Accidents Act 1988 s 43A(7) - whether claimant had a "full" explanation for delay - prejudice not a relevant matter to consider in determining application for dismissal

WORKERS COMPENSATION - alternative rights and election between different remedies - Workers Compensation Act 1987 s151Z(1) - rule against double compensation - worker injured at work as a result of outsider's negligence - worker later aggravates injury at work - worker sues outsider for damages, including damages resulting from aggravation - whether workers' compensation entitlements should have been deducted from damages

DAMAGES - personal injuries - avoiding double compensation - offsetting of workers' compensation payments - Workers Compensation Act 1987 s151Z(1) - worker injured at work as a result of outsider's negligence - worker later aggravates injury at work - worker sues outsider for damages, including damages resulting from aggravation - whether workers' compensation entitlements should have been deducted from damages

LEGISLATION CITED:

Motor Accidents Act 1988, s40(2), s 43(A)

Workers Compensation Act 1987, s 151Z(1)

Supreme Court Rules, Pt 51 r 23

DECISION:

Both appeals dismissed with costs

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40978/00

DC 125/99

DC 3807/99

BEAZLEY JA

STEIN JA

ROLFE AJA

Thursday, 2 May 2002

PETER MANCINI v ERIC THOMPSON

FACTS

In 1996 the respondent was involved in two incidents at work. In May, as a result of the appellant's negligence, he was struck by an object being lowered by a crane. His neck and shoulders were injured, but he continued to work. This was a "motor accident" for the purposes of the Motor Accidents Act 1988 (NSW). In December, he jumped from the tray of a lorry and experienced neck pain. He then stopped working. After returning to work for a brief period, he stopped working altogether. He was diagnosed as having a posterior bulge of the C5/6 disc and had surgery. The accepted medical evidence was that his disabilities resulted from a disc prolapse, which occurred in the May accident and that the December incident was but a continuation of the same injury.

In 1997 the respondent lodged a late claim against the appellant under the Motor Accidents Act, and in 1999 he commenced proceedings in the District Court against the appellant, alleging negligence in respect of the May incident, and claiming damages, including damages flowing from the exacerbation of his injury sustained in the December incident. The appellant applied to have those proceedings dismissed pursuant to s 43A(7) of the Motor Accidents Act. Phegan DCJ refused that application, holding that the respondent had provided a full and satisfactory explanation for the delay. The appellant appealed against this decision on the ground that the judge erred in holding that the respondent had given a "full" explanation for the delay.

At trial, Sorby DCJ held that the appellant was liable in negligence and awarded damages to the respondent, including for exacerbation of his injury sustained in the December incident. His Honour made no deduction from the verdict in respect of any workers compensation paid or payable in respect of the December incident on the basis that the principle in Kempsey District Hospital v Thackham (1995) 36 NSWLR 492 which required such deduction did not apply on the facts. The appellant appealed against Sorby DCJ's decision, contending that his Honour erroneously distinguished Thackham and that he should have deducted from the verdict workers compensation paid and payable in respect of the December incident.

HELD

On the appeal from Phegan DCJ

per Rolfe AJA (Beazley JA and Stein JA agreeing), dismissing the appeal:

(i) The trial judge was justified in concluding that the claimant had provided a full explanation for the delay - the alleged failure by the claimant to fully disclose his medical history was not a reason for rejecting the explanation as not being "full".

(ii) In determining an application for dismissal pursuant to s 43A(7) it is not relevant to consider the issue of prejudice: Russo v Aiello [2001] NSWCA 306 referred to.

On the appeal from Sorby DCJ

per Beazley JA (Stein JA and Rolfe AJA agreeing), dismissing the appeal

(iii) The basis of the trial judge's decision that Thackham did not apply was erroneous - it was necessary for him to determine whether the December 1996 injury caused any incapacity so as to entitle the appellant to compensation either in the past or in the future.

(iv) The matter could not be resolved merely upon the concession made by the respondent that he had no workers compensation rights arising out of the December incident: Thackham at 509B referred to.

(v) A new trial should not be ordered. On the medical evidence, which the judge accepted, the amount of any award arising out of the December incident was likely to be small, and did not warrant the expense of a new trial, even limited to that issue.

ORDERS

(i) In matter number 125/99, the appeal from the decision of Phegan DCJ is dismissed with costs.

(ii) In matter number 3807/99, the appeal from the decision of Sorby DCJ is dismissed with costs.

**********

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40978/00

DC 125/99

DC 3807/99

BEAZLEY JA

STEIN JA

ROLFE AJA

Thursday, 2 May 2002

MANCINI v THOMPSON

JUDGMENT

1 BEAZLEY JA: In this matter Rolfe AJA has considered the appeal from Phegan DCJ. I agree with his Honour's reasons and his proposed orders in that matter. Accordingly, I will deal only with the appeal from Sorby DCJ.

2 The appellant alleges that his Honour erred in failing to apply the principle in Kempsey District Hospital v Thackham (1995) 36 NSWLR 492. That principle applies so as to avoid double compensation in circumstances which fall outside the operation of s 151Z of the Workers Compensation Act 1987 (NSW). I will deal with the operation of that principle and its interrelationship with s 151Z shortly. It is convenient to first refer to the facts.

3 The respondent was involved in two relevant work related incidents. In the first incident, which occurred on 1 May 1996, the respondent suffered injuries to his neck and shoulder, when, during the course of his employment, a crane driven by the appellant suddenly lurched forward resulting in the respondent being hit by an RSJ which was being manoeuvred by the crane. The incident was held by the trial judge to be a "motor accident" within the meaning of the Motor Accidents Act 1988 (NSW) and was caused by the appellant's negligence. This was not in issue on the appeal. In the normal course, if the incident caused the respondent to be incapacitated, he would be entitled to the payment of weekly compensation in respect of this injury. This becomes relevant to the double compensation issue which is the matter of contention on the appeal.

4 The second incident occurred on 4 December 1996 in the course of the respondent's employment with the same employer. On this occasion the respondent jumped from the tray of a lorry which he was unloading. He experienced pain in his neck. This was solely a work related injury and did not give rise to any tortious liability in a third party. If this incident caused the appellant injury which resulted in incapacity, the respondent would be entitled to weekly compensation in respect of the period of incapacity.

5 The respondent did not take any time off work after the May incident although between June and September 1996 he received chiropractic treatment. Following the incident on 4 December, the respondent saw a general practitioner. He was referred to Dr Elliott, orthopaedic surgeon, who saw him on 12 December.

6 The respondent returned to work for about a week in January 1997 but he suffered a slight exacerbation of neck pain when he turned his head suddenly whilst driving. He did not return to work after this incident.

7 The respondent was subsequently diagnosed by MRI scan as having a posterior bulge of the C5/6 disc. He underwent an anterior cervical fusion at C5/6 on 14 March 1997, carried out by Dr Elliot. He required a re-exploration of the disc later that year. He is significantly disabled with his injury and partially incapacitated from working.

8 The respondent remained under the care of Dr Elliott, who was of the opinion that the respondent's neck impairment, which he assessed at 30%, resulted from the disc prolapse, which he considered occurred initially in the May 1996 incident. This opinion was supported by Dr Deveridge, surgeon, who provided a medico-legal report on behalf of the respondent. Dr Deveridge was also of the opinion that the greater part of the respondent's neck and shoulder disability dated from the injury on 1 May 1996. He considered the subsequent incidents were matters of minor aggravation of the original injury "consistent with the natural history of a disc protrusion once it had been initiated".

9 The respondent lodged two claims for compensation, one on 3 September 1996, relating to the May accident, and the other on 10 December 1996, in respect of the December accident. In early 1999, following agreement reached with the employer's workers' compensation insurer (who was the same for each incident), compensation totalling approximately $100,000 was paid to the respondent. A portion of this amount was referable to medical expenses and the balance to the payment of weekly compensation. The payments for weekly compensation are recorded as commencing on 4 December 1996. However, there is no evidence as to whether the weekly compensation was paid in respect of the claim lodged on 3 September or on 10 December or whether any distinction was made between the two incidents when the claim was accepted. The record of the payments shows a claim number, but the claim number is not otherwise identified as relating to either of the claims made.

10 The respondent commenced the present proceedings in March 1999 claiming damages in respect of the May 1996 incident, including aggravation of that injury sustained in the December incident. The particulars also record the agreement reached with the workers compensation insurer to pay the respondent payments of weekly compensation in respect of his periods of incapacity. Sorby DCJ accepted Dr Elliott's opinion that the damage to the respondent's neck which led to surgery was caused by the May 1996 incident and that the December 1996 incident was but a continuation of the same injury. His Honour concluded:

"I therefore do not consider that the incident on 4 December was of such significance that it constituted a novus actus."

His Honour considered that Thackham had no application to the matter before him and therefore there was no question of double compensation. Although it is not entirely clear, it appears that in reaching this conclusion his Honour appears to have distinguished Thackham on the facts. In the present case the first injury was the major injury, the December incident being a slight exacerbation of the original injury, whereas, as his Honour said:

"In Thackham the Defendant's negligence in 1981 to the Plaintiff's back rendered him predisposed to the sort of injury he suffered with a second employer in 1988. In view of my findings in fact, and the opinions of Doctors Elliot, Deveridge and Bodel on causation, I do not consider the [authority] apposite."

His Honour did not, therefore, make any deduction from the verdict for compensation paid or payable in respect of the December incident.

11 Counsel for the appellant submitted that neither his Honour's finding that the December incident did not constitute a novus actus, nor his finding that the need for surgery arose directly out of the May injury and that the December injury was a natural sequelae or continuation of the May injury, took the case outside of the Thackham principle. As counsel for the appellant submitted:

"it was exactly because the injury of 4 December 1996 was not a novus actus that the question of any deduction for compensation paid or payable in respect of it arose for determination in the case."

12 In essence, the appellant contends that where a person brings common law proceedings for damages for personal injuries (as was done here in respect of the May incident) and such injuries are linked causally to a later injury giving rise to workers compensation rights, but which also give rise to an entitlement to damages for the consequences of the second injury in the common law proceedings relating to the first incident:

"an allowance needs to be made by way of deduction from the total damages awarded for the amount of workers compensation received and to be received by that person subject to some further adjustment for the prospect that the right to workers compensation may in the future be lawfully terminated by reason of the receipt by the person of the damages awarded". (emphasis added)

13 The appellant submitted that his Honour's failure or refusal to make such a deduction was only justified if his Honour found, and it was open to find, that the respondent had never at any time received or had the right to receive workers compensation in respect of the injury of 4 December 1996. It was contended that such a finding was manifestly not open. Put simply, it was submitted that the relevant enquiry was:

(i) Does the injury of 4 December 1996 stem from the tortious injury (ie the injury suffered on 1 May 1996)?

(ii) Does the injury of 4 December 1996 give rise to the right to workers compensation? If so

(iii) What is the measure of workers compensation paid and payable?

14 The respondent sought to meet the appellant's argument in the following way. First, the respondent did not accept that any payments of workers compensation made in the case were paid in respect of the injury of 4 December 1996. (In the respondent's written submissions, it appeared that it had been accepted by the respondent that he had received compensation payments for the 4 December incident: see para 11 of those submissions. In argument on the appeal, it was said that that was not correct and in effect was withdrawn). Secondly, it was submitted that double compensation in this case was avoided by the operation of s 151Z(1)(b) which imposed an obligation on the respondent to repay the workers compensation insurer out of the judgment sum the total amount of compensation payments made. It followed that the principle in Thackham had no application. Essential to this submission was the respondent's contention that his injuries, disability and incapacity were solely referable to the May injury and, as has already been indicated, that no compensation had been paid or was payable either for the past or for the future in respect of the 4 December 1996 incident.

15 It is convenient at this point to refer to the relevant provisions of s 151Z and to the principle in Thackham. Section 151Z provides, relevantly:

"(1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect:

(a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation,

(b) if the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation which a person has paid in respect of the worker's injury under this Act, and the worker is not entitled to any further compensation,

(c) if the worker firstly recovers those damages the worker is not entitled to recover compensation under this Act

..."

16 Section 151Z deals only with the case where there is a liability in some person other than the employer to pay damages in respect of the injury. Thackham and the cases which followed it deal with a quite different situation, as was explained in Thackham by Handley JA at 506:

"The respondent suffered a work injury on 13 December 1981 while employed by the appellant and a second work injury in March 1988 while employed by Hastings District Hospital. The first gave rise to a cause of action independently of the Act, the second did not, but increased the damages for the first. The question is whether, in terms of s 151Z(1), the second injury `was caused under circumstances creating a liability in some person other than the worker's (second) employer to pay damages in respect of the injury', that is in the appellant."

17 This question was answered in the negative. Handley JA pointed out that the first injury gave rise to a cause of action independently of the 1987 Act. The second did not, but increased the damages for the first. His Honour further observed that s 151Z failed to expressly make provision for the avoidance of double compensation in cases such as was before the Court. In such cases, it was necessary, as Meagher JA had observed in his judgment at 505, that if over compensation was to be avoided, both compensation paid and payable ought to be deducted. His Honour recognised that would involve a trial within a trial.

18 The operation of the Thackham principle was considered by this Court in Franklins Self Serve Pty Ltd v Wyber [1999] NSWCA 390; (1999) 48 NSWLR 249. In that case Mason P pointed out, at 265, that in Thackham it had been common ground that, if s 151Z did not apply, compensation paid to the worker by the second employer was deductible from the verdict to which the plaintiff was otherwise entitled. Compensation which falls within s 151Z (1) is not deductible but must be repaid by the plaintiff. The monetary result to the plaintiff is the same in each case, but there is a difference in the amount of damages for which the tortfeasor is liable.

19 In the present case if there had been no aggravating incident such as that which occurred on 4 December and the weekly compensation had been paid by the employer's workers compensation insurer as a result of the injuries and incapacity arising from the May accident, the full verdict would have been payable to the respondent by the appellant and the respondent would be obliged, pursuant to the provisions of s 151Z, to repay the compensation amount to the workers compensation insurer.

20 However, there was an aggravating incident which occurred in the course of employment on 4 December. The respondent asserted that this made no difference as the effect of the trial judge's rejection of the application of Thackham and acceptance of Dr Elliott's evidence was that his Honour had determined that all disability and incapacity flowed from the May incident and none flowed from the December incident, so that the December incident did not give rise to an independent right to workers compensation as no incapacity flowed from that injury. He was, however, required to repay the compensation he had received out of the verdict, although he had not done so.

21 The appellant submitted, however, that there was at least some incapacity which flowed from the December incident so that the Court was required to assess what portion of the compensation which had been paid was attributable to that incapacity and what compensation would be payable due to the incapacity flowing from the December incident. It was submitted that his Honour had not undertaken that task. The appellant also sought to demonstrate his point by submitting that, if the respondent's submission was accepted there was nothing to stop him from bringing an application for workers compensation against the employer flowing out of the December incident. This submission elicited a response from the respondent that he had no workers compensation rights in respect of the 4 December incident and would not be making any such claim.

22 At this point a number of things can be noted. First, if the December incident constituted a novus actus, the appellant would not have been liable for any injury or incapacity which flowed from it. His Honour found it was not a novus actus. Secondly, the fact that the December incident did not constitute a novus actus, does not mean that Thackham did not apply. Thirdly, it would seem that his Honour accepted that the December incident caused an aggravation of the May injury. Such an aggravation may still be compensable as part of the damages flowing from the first incident, but that circumstance is also not sufficient to distinguish Thackham: see Wyber at 267. Fourthly, his Honour did not expressly deal with the issue, which is at the heart of Thackham, as to whether the respondent was or would in the future be entitled to the payment of compensation arising out of the December incident. If he was, Thackham applied. Finally, the matter cannot be resolved merely upon the concession made by the respondent that he had no workers compensation rights arising from the December incident: see Thackham, at 509B-C.

23 The undertaking sought to be given in Thackham was that the plaintiff would not pursue compensation rights arising out of the second employment injury. That undertaking was not accepted by the court on the basis that it was not within the court's power to do so. In this case the respondent did not seek to give an undertaking but made a concession that he had no entitlement and would not make any workers compensation in respect of the December incident. It was said that that resolved the matter. Senior counsel for the respondent also argued that, should the respondent commence workers compensation proceedings in respect of the 4 December incident, the concession could be pleaded by the employer as some form of estoppel. The precise nature of such estoppel was not articulated. That is not surprising given that the parties to those proceedings would not be identical to the parties to these proceedings. However, I do not see that the concession made on behalf of the respondent assists in the determination of the issue raised on the appeal. That issue is what deduction, if any, was required to be made from the verdict in respect of compensation paid and payable in respect of the 4 December incident. His Honour did not determine that issue.

24 These matters lead directly to the next point. The only clear finding his Honour made was that he preferred the opinion of Dr Elliott as to the significance of the May 1996 injury, the damage done to the respondent's neck in that injury, and the need for two cervical fusions arising directly out of that injury. Counsel for the respondent sought to deal with the absence of any express finding in relation to his past and future rights to compensation arising out of the December incident by reference to the manner in which the parties had conducted the case at trial. He submitted that the appellant had argued before the trial judge that the respondent's disabilities arose solely from the December incident. The respondent's case was that his injuries and disabilities arose solely from the May incident. It followed, on the respondent's argument, that his Honour's acceptance of Dr Elliott's opinion meant that he accepted the respondent's case in its entirety.

25 I do not agree that the case submitted to his Honour by the appellant was of the categorical nature asserted by the respondent. The matter was put in the alternative - either all disability flowed from the December incident, and if Dr Elliott's opinion was accepted, it did not, in which case Thackham applied: see trial transcript at 277 and 295.

26 In my opinion, as already indicated, the basis of his Honour's decision in finding that Thackham did not apply was erroneous. It was necessary for him to determine whether the December 1996 injury caused any incapacity so as to entitle the appellant to compensation either in the past or in the future.

27 In the normal course, that conclusion would mean that the appellant should have a new trial on this issue. However, I have decided against that course. The effect of Dr Elliott's evidence was that the injury in December 1996 had aggravated the disc prolapse which occurred in the May incident and was only responsible for the subsequent surgery to a minor degree. On that evidence, it would appear that the likelihood of any award arising out of the December incident, either in respect of the period up to the date of trial or beyond would be small.

28 Part 51 r 23 provides relevantly that the Court of Appeal shall not order a new trial unless it appears that some substantial wrong or miscarriage has thereby been occasioned. Accordingly, although I am of the opinion that the appellant has made good his point that the trial judge misunderstood the operation of the principle in Thackham, and did not make the relevant determination required by that principle I would not, in the circumstances, interfere with the trial judge's order. That is so notwithstanding that that leaves the appellant in the position that it is required to pay the full amount of the verdict to the respondent and does not have the benefit of having the verdict reduced as would be the case if there was a finding that there was incapacity flowing from the December incident. As I have said, I consider that any amount so found would have been small and does not warrant the expense of a new trial, even limited to that issue.

29 I would therefore dismiss the appeal from Sorby DCJ with costs.

30 Accordingly, I would propose the following orders:

(i) In matter number 125/99, the appeal from the decision from Phegan DCJ be dismissed with costs.

(ii) In matter number 3807/99, the appeal from the decision of Sorby DCJ be dismissed with costs.

31 STEIN JA: I agree with Rolfe AJA in relation to the appeal from Phegan DCJ. Concerning the appeal from Sorby DCJ, I agree with Beazley JA. The appeals should be dismissed with costs.

32 ROLFE AJA: The plaintiff/respondent, Mr Eric John Thompson, for whom Mr W P Kearns of Senior Counsel and Mr R Hanlon of Counsel appeared, sustained personal injuries on 1 May 1996 and 4 December 1996 in the course of his employment with Westco Sand and Soil Pty Limited (`the employer"), by which he was employed as a truck driver.

33 On 1 May 1996, Mr Thompson was standing on the tray of a lorry onto which RSJ's were being loaded. They were being delivered by a travelling crane, which was being driven by the first defendant/appellant, Mr Peter Mancini, for whom Mr S G Campbell of Counsel appeared. It is unnecessary to consider the second defendant's position on this appeal.

34 Mr Thompson's task was to guide the RSJ's into position as the crane lowered them and, in the course of doing so, one struck him in the area of the neck and shoulder because of Mr Mancini's negligent handling of the crane. It was not in issue on the appeal that this constituted a "motor accident" within the meaning of the Motor Accidents Act 1988 ("the Act").

35 Mr Thompson continued to work, although he received treatment from a chiropractor for this injury between 16 June 1996 and September 1996. However, the ultimately unchallenged evidence was that he carried out his work with pain and discomfort.

36 On 4 December 1996, Mr Thompson was injured whilst still in the employer's employment, when he jumped from the tray of a lorry, in the unloading of which he was assisting, because of a perceived danger in that operation. As a result, he alleged he aggravated or exacerbated the neck injury he suffered on 1 May 1996.

37 He did not claim workers compensation, as I understand it, after the first accident from his employer, but, on 12 December 1996 he did, and, until the common law trial, he received workers compensation payments totalling $101,097.56.

The Proceedings in the District Court

38 On 16 May 1997, Mr Thompson lodged a claim under the Act against Mr Mancini in respect of the injuries he received on 1 May 1996. Section 43(2) relevantly requires that a claim must be made within 6 months after the date of the motor accident to which it relates, by the giving of notice either to the person against whom the claim is made and, if that person's insurer is a third party insurer, to it. The claim clearly was not made within the time required by s 43.

39 Section 43A deals with the late making of claims and relevantly provides:

"(1) The objects of this section are:

(a) To ensure that the issue of the lateness of a claim is dealt with as soon as possible after receipt of the claim; and

(b) To ensure that any delay caused to the consideration of the substantive claim by the lateness issue is kept to a minimum, and

(c) To ensure that the lateness issue is either resolved or made a mutually apparent substantive issue at an early date.

(2) A claim may be made more than 6 months after the relevant date for the claim under section 43 (in this section called a late claim) if the claimant provides a full and satisfactory explanation for the delay in making the claim. The explanation is to be provided in the first instance to the third-party insurer concerned (if there is one) or to the Nominal Defendant.

(3) Evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in any such explanation.

(4) A late claim may not be made more than 12 months after the relevant date for the claim under section 43 unless, in addition to the provision of a full and satisfactory explanation, the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 10 % of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident.

...

(7) A court must dismiss proceedings commenced in respect of a late claim if the court is satisfied that the claimant does not have a full and satisfactory explanation for the delay in making the claim and, alternatively, or in addition in the case of a late claim that is more than 12 months after the relevant date for the claim under section 43, that the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are less than 10% of the maximum amount that may be awarded for non-economic loss under section 79 or 79A as at the date of the relevant motor accident".

40 Section 40 (2) provides:

"In this Part, the reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay".

41 After Mr Thompson commenced his proceedings in the District Court against, relevantly for present purposes Mr Mancini, Mr Mancini moved to have them dismissed pursuant to s 43A(7). This application was heard by Phegan DCJ on 19 July 1999. His Honour concluded that there was a full and satisfactory explanation and that the amount of damages satisfied sub s 4. Mr Mancini appeals against this decision to the extent only that there was not a "full" explanation. His Honour's findings that the explanation was "satisfactory" and that the financial hurdle had been overcome were not challenged.

42 The proceedings were heard by Sorby DCJ. The Amended Ordinary Statement of Claim alleged negligence in relation to the incident on 1 May 1996, although, naturally enough, Mr Thompson relied upon the alleged aggravation and exacerbation of the injury on 4 December 1996 in relation to the damages to which he claimed to be entitled as a consequence of the incident on 1 May 1996. The particulars pursuant to Part 9 r 27 make clear that the accident, in respect of which Mr Thompson was suing, was that of 1 May 1996, and that as a consequence of the further injuries received on 4 December 1996 , the initial ones were exacerbated.

43 In respect of the claim for loss, Mr Mancini pleaded:

"... the Defendants say that the Plaintiff 's damages are to be reduced by the operation of section 151 Z(2) of the Workers Compensation Act 1987 (NSW)".

44 On 2 November 2000 Sorby DCJ entered a verdict and judgment for Mr Thompson against Mr Mancini in the sum of $410,511.70 and made certain consequential orders. Mr Mancini appeals against so much of this judgment as does not make adjustments in respect of the workers' compensation payments, on the basis that it provides for double compensation. Other grounds of appeal were either not pressed or expressly abandoned.

The Proceedings Before Judge Phegan

45 In order to avoid the consequences of s 43A(7), it was necessary for Phegan DCJ to be satisfied, in the way in which the matter was argued, that Mr Thompson did have a full explanation for the delay.

46 Mr Campbell's only submission on this point, as I understood it, was Mr Thompson's failure to disclose fully his medical history. This, in my opinion, was not a reason for rejecting the explanation as not being full. Rather, if I may say so with respect, it tended to misunderstand the requirements for it to be full. What was required was a full explanation for delay and, in order for the explanation to be full, it had to include "the actions, knowledge and belief of the claimant from the date of the accident until the date of providing the explanation". In other words, the requirement that the explanation be full focussed upon the period from the date of the accident until the date of providing it, and the necessity to set out fully "the conduct, including the actions, knowledge and belief of the claimant". The purpose of this is so that the Court can evaluate all of the reasons for the delay and decide whether they are full and satisfactory. The applicant, therefore, cannot "pick and choose" the information to be given relevant to the delay and which the Court has to decide is "satisfactory".

47 Once a full explanation was given of those matters, the Court's obligation was to decide whether it was satisfactory in the sense of satisfactorily explaining the delay.

48 In my opinion, Mr Campbell pointed to nothing which would indicate that the explanation was not "full" in the sense to which I have just referred. Although at times Phegan DCJ seems to have suggested that it may have been less than full, ultimately, Red Appeal Book p 48, he found:

"In all the circumstances I am satisfied that a full and satisfactory explanation has been provided and that the plaintiff therefore is entitled to proceed, notwithstanding the lateness of the service of the Notice of Claim".

49 In my opinion, his Honour was justified in reaching this conclusion, and no error in his doing so has been shown.

50 I think it is necessary to say, with all due respect to his Honour, that he was somewhat diverted from the relevant questions by a consideration of prejudice. If prejudice was a relevant matter, which in my opinion it is not, there was obvious prejudice to Mr Mancini because he was not able to have Mr Thompson examined after the first and before the second accident.

51 I can understand how his Honour became concerned about prejudice. To some extent, the legislation under consideration is similar to that governing the extension of limitation periods in which, of course, in the vast majority of cases, prejudice is a relevant consideration. However, I am of the opinion, that prejudice does not enter into the matters which have to be decided in determining whether an originating process should be dismissed under the Act.

52 In Russo v Aiello [2001] NSW CA 306, this Court held that prejudice was not a relevant factor. Young CJ in Eq, with whom Meagher JA agreed, said, at paras 49 and 50:

"49. The material also suggests that there was little, if any, prejudice to the insurer by the delay, but this does not appear to be a relevant factor under the statutory scheme.

50. It is, of course, a drastic step to take of refusing plaintiffs who have a fairly arguable case in negligence the right to go to trial, especially if the insurer suffers no prejudice in what has occurred. However, for good or ill, the legislation requires that result in certain cases".

53 In this respect, I do not discern any difference of view by Hodgson JA.

54 The conclusion to which I have come, namely that prejudice plays no part in a determination of such a claim, is that the legislature neither expressly nor impliedly required consideration to be given to it. If the claim is late, the Court, and not the defendant's insurer, must be satisfied that the applicant has a full and satisfactory explanation for the delay and, if the delay exceeds 12 months, can meet the monetary test. Depending on the Court's conclusion in relation to those matters, so will depend the result.

55 To a not insubstantial extent, the reasons of Phegan DCJ deal with matters irrelevant to the determination of the questions posed for his consideration. Nonetheless, his Honour found that all the necessary requirements had been met.

56 Accordingly, the appeal from his Honour's decision should be dismissed with costs. However, for emphasis, I would repeat that Judges, called upon to determine questions under these sections of the Act, are not required to consider matters of prejudice.

The Decision of Judge Sorby

57 I agree with Beazley JA.

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LAST UPDATED: 07/05/2002