A Malaysian worker, who was left paraplegic after a workplace accident, has lost his bid for damages in the NSW Supreme Court and ordered to pay costs after his legal team failed to follow procedures when filing his claim out of time under Vic workers compensation laws.

NSW Supreme Court Justice Des Fagan on March 2 dismissed a summons filed by Ching Tam’s legal representatives for a judicial review of Vic WorkCover Authority’s refusal of consent to start proceedings outside the time limit prescribed by the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) for common law damages.

Justice Fagan agreed with Vic WorkCover’s decision that Tan’s legal team had failed to follow the procedures set out in the Act, particularly s333, completing in time the application they had started.

On July 13, 2017, Tan sustained catastrophic injuries from spinal damage that left him quadriplegic after falling from a ladder while employed as a fruit picker in an orchard at Hillston, about 110 km north of Griffith, in the NSW Riverina.

Initially, on Feb 21, 2020, a statement of claim was filed in the NSW Supreme Court, naming Super Season as the only defendant, alleging negligent breach of common law duty of care and breach of statutory duty of care under the Work Health and Safety Act 2011 (NSW) and associated regulations, ie Common Law Division File No 2020/56877.

Super Season denied breach of duty, arguing Tan had been employed by Vic-based labour hire company Mr Handy Professor Pty Ltd (MHP). However, by this time MHP had been deregistered and Tan’s legal representatives on Nov 2, 2020, sued Vic WorkCover, as insurer of MHP, for common law damages for his workplace injury after joining it as second defendant.

On 17 March 2021, Vic WorkCover filed its defense, denying the alleged common law and statutory duty breaches and argued Tan was not entitled to compensation in Vic because he had made a workers compensation claim in NSW and was being paid by the NSW Nominal Insurer.

Significantly, the Vic WorkCover also submitted “alternatively” if Tan was entitled to compensation in Vic, he still was not entitled to recover damages for his injury because he had not made an application to Vic WorkCover to issue him with a serious injury certificate nor had he obtained the Court’s leave to proceed with a claim for damages.

More than 18 months had passed since Vic WorkCover was joined as a defendant and Tan was therefore eligible, under s328(2)(b) of the Act, to apply for its certification his injury was serious. But no such application had been made or certificate received.

Having been alerted to Vic WorkCover’s defense, Tan’s legal representatives on May 21, 2021, applied for a serious injury certificate, which it issued on Sept 14, 2021, certifying it was satisfied Tan’s injury was serious and giving consent to bring proceedings for the recovery of pain and suffering and pecuniary loss damages resulting from that injury.

On May 6, 2022, the action against Super Season and Vic WorkCover was set down for hearing over 10 days, starting on Oct 10, 2022. Four days before the hearing, Vic WorkCover agreed to strike its defense that Tan was not eligible for compensation in Vic, conceding the Act governed its liability to indemnify MHP.

But on the morning, just before the hearing was about to start, Tan’s legal representatives received written submissions from Vic WorkCover, claiming the damages proceedings were “at nullity” because, when it was joined as a defendant, Tan did not hold a serious injury certificate and obtaining it 10 months later, did not retrospectively validate the proceedings.

Vic WorkCover submitted Tan’s damages claim could only be pursued by starting a fresh proceeding against it after the serious injury certificate had been issued and a pre-action exchange of offers had been undertaken under ss333 and 334 of the Act.

The statutory limitation period, running from when the prescribed exchange of offers had taken place, had expired on Jan 30, 2022. A fresh proceeding could not be obtained without Vic WorkCover’s consent, which it could only give in limited circumstances under s337(2) of the Act; and Tan’s legal representatives had failed to seek the requisite consent.

In response, Tan’s solicitor immediately applied for Vic WorkCover’s consent to start a fresh proceeding. In a letter addressed to senior manager Greg Brown as the decision-maker, it was submitted Tan’s proceedings were not out of time and the time limits did not start until Oct 6, 2022, when Vic WorkCover had amended its defense, conceding the Act governed its liability to indemnify MHP.

Brown refused consent to a fresh proceeding the following day, submitting once an application for a serious injury certificate had started there were strict timeframes governing the process “with harsh penalties if there is failure to comply”.

He said Tan’s legal representatives had acknowledged this when Vic WorkCover had issued its serious injury certificate and consented to the proceedings, advising also the proceedings were “subject to compliance with s333 of the WIRC Act”.

Brown submitted, and Justice Fagan agreed, under s333 of the Act, Vic WorkCover could only give consent in limited circumstances where it was satisfied there was no “fault or omission” by the worker or the worker’s legal representatives.

In Tan’s case there was no fault or omission by the worker but the worker’s legal representatives had failed to follow the procedures set out in the Act, to complete the application they had started in time. In Vic WorkCover’s view there was no mitigation for the non-compliance – only “what at best appears to be a misunderstanding of the requirements of the Act”.

Tan’s legal representatives relied on 10 grounds of review, in particular arguing that Vic WorkCover’s finding of “misunderstanding” of the Act’s requirements, was an absence of fault or omission. It was therefore obliged to consent to a fresh proceeding.

Justice Fagan dismissed Tan’s legal team’s submission on all grounds. He found a misunderstanding of the “long-standing time limits”, which Vic WorkCover had clearly brought to Tan’s legal team’s attention, “would not be inconsistent with, nor displace, ‘fault or omission’”.

“On the contrary, to misunderstand the requirements and to delay commencement of proceedings (based on the misunderstanding) would constitute ‘fault or omission’,” he said.

He found Tan was not entitled to orders to set aside Vic WorkCover’s decision and “either substitution of a grant of consent under s 337(2) by the Court or remitter of the application to (Vic WorkCover) to be determined according to law or by a different officer”. He ordered Tan pay the authority’s costs. Tam v Worksafe Victoria [2023], NSWSC 173, (02/03/2023).