Alapic v Victorian WorkCover Authority (Ruling)
[2024] VCC 722
•27 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-23-00731
| KATICA ALAPIC | Plaintiff |
| V | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 May 2024 | |
DATE OF JUDGMENT: | 27 May 2024 | |
CASE MAY BE CITED AS: | Alapic v Victorian WorkCover Authority (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 722 | |
RULING
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Subject:SECTION 23A APPLICATION
Catchwords: Left foot injury – application for extension of time within which to bring action – personal injury in course of employment – when cause of action accrued - whether limitation period should be extended – prejudice resulting from delay –
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013; Limitation of Actions Act 1958; County Court Civil Procedure Rules 2018, r23.02 and r23.04
Cases Cited:Bell Radiology (A Firm) v McGraw (Unreported, VSCA, 31 July and 1 August 1995, 7 February 1996, Tadgell, Ormiston & Callaway JJA);Tregilgas v Victorian Workcover Authority (Ruling) [2021] VCC 1780; Drew v Patricks Stevedores Holdings Pty Ltd (No 2)[2017] VSC 352; Wardley Australia Ltd v State of Western Australia, (1992) 175 CLR 514; Collopy v Parks Victoria [2024] VCC 159; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517;; GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635
Judgment: The plaintiff is granted an extension of time in which to bring proceedings pursuant to s23 A of the Limitation of Actions Act 1958
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Dimsey | Maurice Blackburn |
| For the Defendant | Mr T Storey | Wisewould Mahoney |
HER HONOUR:
1Between 1998 and October 2016, Ms Alapic worked for Venture Campbellfield Pty Ltd (“Venture”) as a machine operator. Ms Alapic says the job required her to stand on tiptoes much of the time to reach into the draping machine that she was operating. She says, as a result of these duties, she has a permanent injury to her left foot. She has undergone two operations and continues to have pain.
2She has brought this proceeding in negligence and for breach of statutory duty, alleging that her injuries were sustained in the course of her employment.
3In its defence, the Victorian WorkCover Authority (“VWA”) pleads that Ms Alapic’s claim is statute barred pursuant to the provisions of s349 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRCA”) and s5 of the Limitation of Actions Act 1958 (“the LAA”). It says that any cause of action arose in 2008, when Ms Alapic first experienced foot pain, or, at the latest, in 2012 when she was referred for surgery on her foot.
4Ms Alapic says she has brought her claim within time and the Defence must fail. She says her cause of action commenced in 2019, when she had the second operation, or, at the earliest, in 2016 when her employment ceased. She seeks a declaration that her claim was commenced within time.
5In the event that she is statute barred, Ms Alapic makes an application pursuant to s23A of the LAA for an extension of time.
6For the reasons set out below I am not satisfied that Ms Alapic’s cause of action accrued in 2016 or 2019. I determine that her cause of action accrued on 21 October 2013.
7However, I am satisfied that Ms Alapic should be granted leave, nunc pro tunc, to bring her claim out of time, pursuant to s23A of the LAA.
Background
8It is not in dispute that Ms Alapic started work with Venture as a machine operator in 1998. She worked on a number of different machines, but in particular a draping machine.
9In 2013, she underwent an operation on her left foot and was off work for about eleven months. She resumed work with Venture in January 2014 and worked there, primarily on the draping machine, until she was made redundant when Venture ceased trading, on 7 October 2016.
10In about October 2016, she obtained work at Nestlé. She ceased that work in January 2017 and has not worked since. In May 2019, Ms Alapic underwent a second operation on her left foot. In December 2019, she lodged a WorkCover claim, claiming injury to the left foot sustained in the course of her employment.
Ms Alapic’s evidence
11Ms Alapic gave evidence with the assistance of a Croatian interpreter, although it was evident that she understood much of what was said and often responded in English.
12She was a straightforward witness, who did her best to answer the questions truthfully. There was no suggestion that she was in any way unreliable, or lacked credibility. I had no difficulty accepting Ms Alapic’s evidence.
13Ms Alapic said she began to feel pain in her foot in around 2008. She could not remember when she first attended her doctor, although medical notes record an attendance on Dr S Wong in November 2008. She agreed that she thought it was her work on the draping machine that was the cause of her pain.
14She said she did not receive any formal instruction or training on how to use the draping machine. She was shown how to use it when she started work.
15She could not remember, but accepted based on the medical records, that she had consulted Dr Wong in September 2009 with “sore legs” and again in January 2010 with “chronic pain to legs”. She could not remember whether the leg pain related to the foot pain.
16She could not remember, but accepted, that she had seen Dr Wong on 19 July 2010 with severe pain in her left foot for months and that she was diagnosed with a Morton’s neuroma.
17She was sent for an x-ray, although she has no actual recollection of that. In her affidavit, she said that she began to wear insoles and wider shoes to work. She said she did not want to go on WorkCover, she just wanted to work and did not want any trouble.
18She said “I knew there was a WorkCover, but I wanted to work and that was my aim”.[1]
[1]Transcript (“T”), Lines (“L”) 26
19She denied that she was aware that if she had an injury at work she could put in a claim. She said she did not know very much about WorkCover, but was aware that some people were on WorkCover.[2]
[2]T17, L8-11
20She denied ever speaking to co-workers or anyone from the union about WorkCover.
21In October 2010, she was referred by Dr Wong to a surgeon, Mr Simon Bernard, for assessment of the Morton’s neuroma. She ultimately did not see Mr Bernard, but in 2012 she was referred to Mr Gerard Powell. She agreed that, by this stage, her foot pain was getting worse.[3]
[3]T18, L21
22Mr Powell saw Ms Alapic in October 2012 and noted that she was a process worker who was on her feet all day and had been experiencing worsening pain, so much so that over the previous six months she had begun limping some of the time.[4] Ms Alapic agreed that she had been limping and that she felt like she was standing on a pebble, with occasional sharp pain that felt like electricity in her toes.
[4]Defendant’s Court Book (“DCB”) 73
23She agreed that, by the time she saw Mr Powell, her foot pain was a serious issue for her.
24She had not told her employer about her foot pain. She did not want to make a WorkCover claim. She said that she had received a letter advising that the employer was closing down. She thought if she told anyone about her foot pain she would be given notice to leave.[5]
[5]T21, L4-6
25In February 2013, she stopped work to have foot surgery. She told her employer that she was having surgery for a foot problem, but did not say anything about the difficulty she had with the draping machine or having to stand on tiptoe.
26She had income protection insurance and accessed that while she was off work following the surgery. She had assistance from her union representative to complete the paperwork for income protection. She was told she might have a WorkCover claim at that time. However, she wanted to get back to work. She was aware that the employer was reducing it’s numbers of workers and she may have been entitled to a redundancy payment.[6]
[6]T31, L13
27She returned to work about eleven months after the surgery. She said she complained to her group leader, Sonal Polat about her foot pain. She cannot remember exactly when this occurred, whether it was on her return to work in early 2014, or whether it might have been 2015. She said she complained about being on her feet all day and on the draping machine all the time. She said that the workplace was not adequately staffed. There were casual workers coming in, but they did not know how to do the job properly. She said that by this stage, there were only a few workers like herself, who had been there for a long time. She said she was told she would have to stay on the draping machine.
28She said she also told her union representative that she was on her feet a lot during her shifts. She could not remember exactly who she spoke to, although she believed there were two union representatives at different times. One was called a name like “John Commando”.[7]
[7] T31, L27
29She continued to work full-time hours. She did not take any significant time off with foot pain, though she may have taken “[o]ne day or something”.[8]
[8]T34, L10-11
30She said that she could not really take time off because the factory was in the process of shutting down slowly and she was told by management that if someone took too many days off they would be made redundant.
31Eventually she was made redundant when the factory closed. She obtained work at Nestlé. She said that she was required to wear steel-cap boots on the factory floor, which were too uncomfortable on her foot, and so she stopped working there. She said she applied for many other jobs as a process worker, and registered at two job agencies, but did not get any work. She said she thought she was a good worker and she wanted to work.
32She continued to have pain in her left foot, even when she was no longer working. She saw Dr Wong and was referred for further surgery on 15 October 2019.
33It was after this second surgery that, by chance, she saw her old union representative, who told her she should make a WorkCover claim.
34She then sought legal advice and submitted her claim for compensation on 9 December 2019.
Evidence of Jourdain Wongtrakun
35Lawyer for the VWA, Mr Wongtrakun, affirmed an affidavit dated 23 April 2024, setting out the steps the VWA has taken since Ms Alapic lodged her claim.
36The VWA has identified a co-worker, Anthony Nguyen, who worked with Ms Alapic, but has been unable to locate him.
37The VWA has not been able to identify any union representative. It has spoken with former directors of Venture, Julian Moss and Michael Cain. Mr Moss was only able to provide limited information, for example the break times workers were required to take, and the details of the draping process and other processes involved with the construction of car doors. Limited documents have been provided.
38Two of Ms Alapic’s supervisors have been located, but have no recollection of the her. Mr Polat has been able to provide details about Ms Alapic’s duties, but only for the period 2014 onwards.
39The console-draping team leader has been able to provide details about the draping and console work, but does not recall Ms Alapic.
40Venture did not retain documents relating to the dimensions of the draping machine. Documents in relation to risk assessments that may have been conducted with respect to the draping machine have not been able to be located. No documents have been retained which would enable Venture to ascertain whether Ms Alapic made any complaints.
Ms Alapic’s submissions
41Ms Alapic says she is not out of time.
42In the alternative, Ms Alapic says she ought to be granted an extension of time.
43Ms Alapic says she has a reasonable explanation for the delay in bringing proceedings. She was concerned about her job security and she wanted to work. Those reasons coloured her choice not to investigate her potential claim at an earlier time. These are legitimate and satisfactory reasons, albeit they may not be wise. Once she sought legal advice, she acted promptly.
44Ms Alapic accepts that there is prejudice to the VWA by reason of the delay, but the VWA’s own material discloses that there are witnesses available and information upon which a defence can be mounted.
45The fact that the operation was, at its peak, a large employer of something like seven hundred people, is a relevant factor in terms of finding witnesses who can give evidence about the conditions, training requirements and factory layout. There are also photographs available, including one of Ms Alapic, herself, at the draping machine.
46The expert opinion demonstrates that there is sufficient information upon which to form an opinion, even though the draping machine is no longer in existence.
47Ms Alapic says a fair trial can be had.
The VWA’s submissions
48The VWA says Ms Alapic was aware of her entitlements under WorkCover, but made a choice not to pursue them. This has resulted in an inordinate delay in bringing her claim.
49This choice results in actual prejudice to the VWA, because:
(a) the factory has been refitted and is now operated by a different entity;
(b) the loss of plant and equipment, including the draping machine, which has been destroyed;
(c) the loss of potentially critical witnesses, including co-workers whom Ms Alapic claims she made complaints to in the lunch canteen about her foot problems;
(d) the loss or destruction of documents critical to resolving facts in dispute (particularly training records, health and safety records, injury registers and records of complaints, risk assessments and production records that would have allowed the speed of work on the draping machine to be precisely determined, and other liability documents);
(e) the loss of critical witnesses in the case, including Ms Alapic’s direct co-worker, Mr Nguyen, a supervisor, “Pasquale”, and relevant union officials from whom Ms Alapic deposes she received advice; and
(f) the loss of memories from available witnesses, including supervisors, John Rigoni and Abib Danni, who have no recollection of Ms Alapic; the director, Mr Cain, who cannot provide information about the draping process and console-draping team leader, Robert Tuxworth, who cannot recall Ms Alapic at all. Ms Alapic’s team leader, Mr Polat, can only provide details about Mr Alapic’s duties post-2014.
50The treating medical records in existence make no mention of the injury being work related.
When did the cause of action accrue?
51Ms Alapic’s primary submission is that she is not out of time. She says that her cause of action did not accrue until it was complete. Her injury was caused by her work between 6 July 1998 and 7 October 2016. It did not result from a specific incident, but from the nature of her work, in particular, the requirement that she stand on her tiptoes while working on the draping machine.
52Ms Alapic says that it was not until “all the harm” done by the negligence was known, that is, when she had the second surgery that her cause of action accrued. Alternatively, she says her cause of action accrued when all the harm caused by the negligence had occurred, which was at the conclusion of her employment,.
53In support of her submission that her limitation period commences from the date of the second surgery she says it was only then that she was aware that her pain was not going to resolve after ceasing work. Alternatively, she says that she was permitted to commence her claim within six years from the 7 October 2016, plus an additional fifty-six weeks, pursuant to s349 of the WIRCA, which extends the relevant limitation period.
54She commenced her proceeding by lodging a serious injury application on 22 June 2022. She is therefore not out of time, whether time is calculated from the cessation of employment or from the second surgery. She says the limitation Defence should be struck out.
55The VWA submits that Ms Alapic is out of time. She first reported foot pain in 2008 and her cause of action commenced then, as she attributed that pain to her work.
56In the alternative, the VWA submits that Ms Alapic’s cause of action accrued at the time she first consulted Dr Wong, or at the time Dr Wong diagnosed her with Morton’s neuroma. The VWA says that the very latest Ms Alapic’s limitation period commenced was the date of the first surgery in 2013. Accepting this latest date, Ms Alapic was statute barred on 25 February 2019.
57In Bell Radiology (A Firm) v McGraw,[9] the Court held that an injury that arose during the course of employment meant that, in reality, there was only one cause of action. That is, an action in negligence for failure to take reasonable care for the safety of the employee.
[9](Unreported, VSCA, 31 July and 1 August 1995, 7 February 1996, Tadgell, Ormiston & Callaway JJA)
58In Tregilgas v Victorian Workcover Authority (Ruling),[10] the worker also pleaded a single cause of action arising from the course of employment. The Court struck out a limitation defence on the basis that the plaintiff’s cause of action was not complete until he ceased work and “knew of all of the facts necessary for him to prove to support his right to a judgment”.[11]
[10][2021] VCC 1780
[11](Ibid) at paragraph [18]
59In Drew v Patricks Stevedores Holdings Pty Limited (No 2),[12] the claim pleaded was a single cause of action for injuries arising over the course of the plaintiff’s employment. However, the Court found that the cause of action accrued when the plaintiff first suffered compensable injury and:
“… It matters not that his cause of action in negligence enlarged to include further incidents and injuries over the course of his employment. Those further incidents and injuries did not have the effect of stopping time from running after it commenced … .”[13]
[12][2017] VSC 352
[13](Ibid) at paragraph [25]
60In Wardley Australia Ltd v State of Western Australia,[14] the High Court identified the difficulty of determining limitation defences on an interlocutory basis, noting that in such proceedings, generally not enough is known about the damage sustained and the circumstances in which it was sustained to “justify a confident answer to the question”.
[14](1992) 175 CLR 514 at 533
61The County Court Civil Procedure Rules 2018provide that a pleading or part of a pleading may be struck out where:
(a) it does not disclose a cause of action;
(b) is scandalous, frivolous or vexatious;
(c) may prejudice, embarrass or delay the fair trial of the proceeding, or
(d) is otherwise an abuse of the process of the Court.
62Rule 23.04(2) provides that, on the hearing of such an application, no evidence is admissible. Although evidence was admitted and heard in relation to the application for an extension of time, it is clear from the rules that striking out the pleading is not intended to require evidence. It must be plain on the face of the pleading that the pleading cannot be maintained.
63I note the reasoning in Collopy v Parks Victoria[15] (“Collopy”) that:
“… The mere assertion in a pleading that the claimed breach of duty continued throughout the course of employment cannot be sufficient to preclude reliance on a limitation defence. … .”[16]
[15][2024] VCC 159
[16](Ibid) at paragraph [13]
64Those considerations also apply to this case. However, this case departs from the facts in Collopy, in that Ms Alapic says her cause of action accrued either in October 2016 or in 2019. In neither scenario is she out of time. Even if Ms Alapic is wrong, the VWA conceded that Ms Alapic was entitled to claim for any injury, or any aggravation to any injury, caused by Venture’s negligence or breach of statutory duty that falls within the six years prior to the proceedings being issued. Even on the VWA’s case, Ms Alapic would have an entitlement for any aggravation that occurred in the latter period of her employment.
65It is only if I accept the VWA’s case that Ms Alapic’s cause of action accrued as early as 2008, or no later than 2013, that she needs an extension of time under s23A of the LAA.
66In Collopy, the plaintiff asked that the Court assume, for the purposes of the s23A application, that his limitation period accrued in early 2007 and sought an extension sufficient to ensure that the entirety of his claim was brought within time. The Court noted that this was a pragmatic means to overcome the concern raised in Wardley in relation to finally determining limitation issues in an interlocutory proceeding.
67In this case, Ms Alapic seeks the Court determine when the cause of action accrues. If that date is after July 2016, then Ms Alapic is not out of time. The effect of such a determination would be that the Defence, at paragraph 11, would have no prospect of success. On that basis, it should be struck out, notwithstanding the caution expressed in Collopy of striking out a pleading on an interlocutory application.
68However, whether the defence should or could be struck out is a moot point, as I do not accept Ms Alapic’s argument that her cause of action did not accrue until October 2016 or 2019. For the reasons set out below, I find that Ms Alapic’s cause of action accrued when, after having surgery, her pain did not resolve.
69Doing the best I can, I take the date that she attended Dr Wong on 21 October 2013, who noted that she still had a sore left foot following the surgery in February 2013, as the date her cause of action accrued. This is because:
(a) Although Ms Alapic was aware of her foot pain from 2008 it is not clear on her evidence whether this foot pain was the same as her subsequent foot pain. The medical records make reference to “bunions”, which are not the same things as a Morton’s neuroma. I cannot determine, on the basis of the evidence, that the pain she experienced in 2008 was caused by the same injury for which she now claims. Further, momentary or intermittent pain does not necessarily indicate injury, or give rise to an entitlement to bring a claim for damages. I am not persuaded her cause of action accrued in 2008.
(b) Although Ms Alapic said that she thought her foot pain was caused by the draping machine,[17] it is not apparent that there was a medical basis for this view, nor is it reported in the medical records that she had an injury arising from her work. It is not apparent from Ms Alapic’s evidence or the medical records, that the leg pain she suffered in 2009 was connected to her foot injury or her work.
(c) Further, it is not apparent that the leg pain she complained of in 2009 was the same pain upon which she now sues.
(d) From at least 2010, Ms Alapic connected the work she was doing with her foot pain.
(e) She was aware of the existence of WorkCover and the possibility of making a WorkCover claim, but did not want to pursue this.
(f) The relevant cause of action, however, is not an entitlement to make a WorkCover claim, but an entitlement to make an application for a serious injury certificate for leave to commence common law proceedings.
(g) It is not clear from her evidence or from any of the medical material that, in 2010, her injury was permanent and unlikely to resolve, or that she was aware of the serious nature of the injury.
(h) It was not until she required surgery that I consider she knew her injury was serious.
(i) I note that she was referred to surgery on 22 October 2012. She had surgery on 26 February 2013.
(j) By October 2013, it was clear that the surgery had not entirely resolved her foot pain. On 21 October 2013, she attended Dr Wong complaining of a sore left foot. I consider that to be the date when she was aware that her injury was serious, permanent and had not resolved with surgery. Therefore, that is the date on which her cause of action accrued.
[17]T12, L7 and T13, L6
70I do not accept that her cause of action accrued only at the time all the harm was “complete”, being either when she ceased employment, or when she had the second surgery.
71If the cause of action did not accrue until all the consequences of the alleged negligence were manifest, it is difficult to see why the second surgery would be the appropriate date to select. On the evidence, Ms Alapic continues to have pain and therefore continues to experience the consequences of the alleged harm done to her. If that reasoning was correct, then the cause of action would, potentially, not yet have accrued.
72The date the alleged negligence ceased may be the date Ms Alapic ceased employment.
73However, this requires the Court to accept that she was not and ought not reasonably to have been aware that, after having surgery which did not resolve her pain, she did not have a serious and permanent injury.
74If she had not had surgery, then arguably Ms Alapic may not have been aware until she ceased work and her pain persisted, that her pain was caused by an underlying condition.
75However, that is not this case. Ms Alapic had surgery in 2013, which did not resolve her pain. She says she continued in pain, albeit that she put up with that pain but needed different shoes and insoles.
76Accordingly, her cause of action accrued when she became aware that the surgery which was required for her left foot pain had not resolved that foot pain.
Extension of time application
77This means that Ms Alapic’s claim became statute barred on 21 October 2019.
78She filed her serious injury application, which has the effect of stopping time from running, on 22 June 2022.
79The period to be considered when assessing her application under s23A is just under nine years.
80Section 23A(3) of the LAA sets out the factors to be considered by the Court. For the purposes of this application the relevant factors are:
· The length and reasons for delay by Ms Alapic;
· The extent to which, having regard to the delay, there is or is likely to be prejudice to the VWA;
· The extent to which Ms Alapic acted promptly and reasonably once she knew that the act or omission of the VWA, to which her injury was attributable, might be capable at that time of giving rise to an action for damages; and
· The steps, if any, taken by Ms Alapic to obtain medical, legal or other expert advice, and the nature of any advice she received.
Length and reasons for delay
81There is no great dispute between the parties as to the facts in this matter. Ms Alapic acknowledges that she was aware of the existence of WorkCover, but that she made a choice not to find out anything about any entitlements she might have, because she did not want to go on WorkCover. Her explanation is that she thought if she submitted a WorkCover claim her job would be at risk and she would be made redundant. She had worked for Venture a long time and was aware, in the last few years of her employment, that the factory was in the process of shutting down. She was aware that she was, or might be, entitled to a redundancy payment and she was keen to ensure she received any such entitlement. She also said that she liked to work, she preferred to work, and she thought she was a good worker.
82The VWA submits that the choice Ms Alapic knowingly made to not pursue entitlements at an earlier time, ought not now result in unfairness to it.
83Ms Alapic says it is her subjective state of mind that must be considered and even if her decision was not wise, its reasonableness must be assessed having regard to her own circumstances.
84I accept that Ms Alapic was aware of the existence of WorkCover and the prospect that she might be entitled to some form of WorkCover claim. I am not persuaded that she was aware of her entitlement to pursue common law damages, or that she associated her work injury with any negligence on the part of Venture. Indeed, she said that her main complaints, especially when she returned to work after the surgery, was understaffing, that the new casual staff were not experienced, and that there was too much work.
85I accept that her reasons for not enquiring about a WorkCover claim, and not pursuing one at an earlier stage, were reasonable. It was not unreasonable to think, in the context of a workplace that was letting people go and downsizing, that mentioning her injury to management or putting in a WorkCover claim might result in her losing her job. This is not to suggest that this would have been the outcome, or to make any findings in relation to the conduct of Venture. However, it was reasonable for Ms Alapic, a woman with limited experience, education and English, who had worked as a process worker for many years, to consider her job prospects might be jeopardised by submitting a claim.
86It was not unreasonable for her to want to maintain any rights she had to any redundancy payment when the factory finally closed its doors.
87I accept that, while Ms Alapic was aware in a general way about the existence of WorkCover, it is unlikely that she was aware of the details or requirements for pursing a common law claim. If she was, then I would have expected she would have brought this action as soon as she finished at Venture, in October 2016, when she would still have been in time. The fact that she obtained other work and continued to pursue work after she finished at Venture supports her evidence that she did not make a WorkCover claim because she wanted to work. It is also consistent with my finding that it is unlikely that Ms Alapic was aware of her entitlement to bring a claim for serious and permanent injury, even after she had finished work.
88I accept that the delay is long, and is a significant factor in the exercise I must undertake in synthesising the factors.
Prejudice to the VWA
89The authorities make clear that delay, even in the absence of any specific prejudice, causes prejudice.[18]
[18]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551-553
90Ms Alapic accepts, as do I, that there is also specific prejudice to the VWA occasioned by the delay. This arises because Venture no longer exists, documents have been dispersed, witnesses cannot be located, the factory no longer exists, and critically, the draping machine is no longer in existence and cannot be measured, inspected or assessed.
91The Court must also consider the extent to which there is likely to be prejudice. In determining the significance of any prejudice, the Court must consider the likelihood that there can be a fair trial, noting that a fair trial is not an ideal trial, but one which is acceptably fair.[19]
[19]Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517 at paragraph [79]
92A finding that a fair trial can be had does not mean an extension should be granted. However, the converse finding that a fair trial cannot be had would invariably mean that an extension should not be given.
93In the present case, the VWA says a fair trial cannot be had because the loss of crucial evidence would put it at a significant disadvantage in countering the evidence of Ms Alapic.
94I note that the VWA relied on an affidavit from a solicitor about the various investigations undertaken to locate documents and witnesses. There was no evidence given by any of the witnesses who had been located and none of their evidence has been tested.
95However, it is apparent from that affidavit that the following material is available:
(a) the medical records of Dr Wong, Ms Alapic’s treating general practitioner;
(b) the medical records of Mr Powell, Ms Alapic’s treating surgeon; and
(c) the medical records of St Vincent’s Hospital, where Ms Alapic had surgery.
96The VWA was able to obtain a circumstance investigation report.[20] From this report it is apparent that Mr Cain, former director of Venture, was interviewed, as was Mr Moss, the former operations manager. Mr Moss recalled that Ms Alapic worked on the assembly line in the plastic injection area. It is apparent from the Circumstance Investigation Report, that Mr Moss was familiar with the operations of the draping machine, including its function, the type and size of material used, the fact that Ms Alapic would be required to place the material in various positions, the variability of the door sizes, and the manner in which the machine affixed the material. It is unlikely that the brief summary contained in the Circumstance Investigation Report is an exhaustive review of Mr Moss’s memory and knowledge. Mr Moss has an actual recollection of the machine, the tasks, and Ms Alapic.
[20]DCB 11
97There are a number of colour and black-and-white photographs of the draping machine in existence, including one showing Ms Alapic using the machine. Operating instructions for the draping machine from Venture are in existence. A Risk Assessment and Risk Reduction Program dated March 2001 is also in existence.
98Expert engineer and ergonomist, Bill Contoyannis, has provided an opinion. He considered he had sufficient material upon which to form a view, notwithstanding the machine itself could not be inspected.
99A number of people who worked at Venture at the same time as Ms Alapic are available to give evidence, including Mr Rigoni, Mr Danni, Mr Tuxworth and Mr Polat. Although many of these witnesses apparently have no recollection of Ms Alapic, they could certainly give evidence about the system of work, the machinery in use, and the operations of the factory.
100Their recollection has not been tested and prompting may result in additional evidence becoming available.
101On Ms Alapic’s own case, she never made any complaints to management or her union about her foot pain, or her use of the draping machine. The lack of record of any complaints is not a significant matter in circumstances where her own case is that no such complaints were made.
102The VWA submits that the draping machine is a critical piece of evidence and the fact that it is no longer in existence means that it is denied the opportunity to inspect and measure it, and to put on evidence to counter Ms Alapic’s evidence about its dimensions. The fact that photographs exist of the actual machine goes a significant way to ameliorating the loss of the machine itself. Those photographs show the machine and various people, against which the dimensions of the machine should be able to be fairly accurately gauged by an appropriate expert. Further, there are witnesses, including Mr Moss and Mr Polat, who have actual recollections of the machine. I am not persuaded that the absence of the physical machine is such a critical loss to the VWA in these circumstances to make a fair trial impossible.
103I am mindful that what is required is not a perfect or ideal trial, but a fair trial.
104In GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore,[21] the High Court explained:
“As Bell P observed in Moubarak, ‘the absence of a witness or witnesses who may be regarded by a party as important, whether through death, illness, loss of memory or inaccessibility ... will not mean that a fair trial cannot be obtained’. Nor does the loss or unavailability of other evidentiary material mean that a trial will be unfair. Thus in R v Edwards, the Court said:
‘Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair.’”;
[21](2023) 414 ALR 635 at 653, paragraph [53]
(Footnotes omitted.)
105Given the evidence that is available, I am not persuaded that the VWA cannot have a fair trial, and on the evidence before me, an acceptably fair trial can be conducted.
The promptness of conduct by Ms Alapic
106The VWA says that Ms Alapic knew, from at least 2012, that she had an injury arising from her work and was entitled to make a WorkCover claim.
107I am satisfied that Ms Alapic was aware of her entitlement to make a WorkCover claim. I am not satisfied, on the evidence, that she was aware of her entitlement to bring a claim for common law damages. I have already found that her reasons for not pursing a WorkCover claim, which may have been limited to medical expenses and weekly payments during the period she was off work having an operation, were reasonable in all the circumstances.
108I am satisfied that Ms Alapic did not know that she had a claim for damages until, at the earliest, she saw her union representative after her second surgery in May 2019, and, at the latest, when she obtained legal advice to that effect from her solicitors later in 2019.
The steps taken to obtain medical or legal advice
109Ms Alapic took no steps to obtain legal advice until 2019. Once she obtained that advice she acted upon it promptly.
110Although she did not lodge her application for a serious injury certificate until 2022, I am satisfied that, from the time she first became aware of her potential claim, she acted promptly. She lodged a WorkCover claim on 9 December 2019 and then went through the various, and at times, lengthy processes associated with such claims.
111She followed her solicitor’s advice. Her WorkCover claim was initially rejected. She went to conciliation. The parties were unable to come to an agreement. She lodged an impairment benefit claim and a complaint in the Magistrates’ Court. That proceeding resolved in Ms Alapic’s favour in October 2021, when liability for Ms Alapic’s impairment benefits was accepted.[22] I do not consider there was any unreasonable or inordinate delay by either Ms Alapic or her solicitors once she obtained legal advice.
[22]See affidavit of Mr Wongtrakun, affirmed 23 April 2024 at DCB 3.
112Ms Alapic did seek medical treatment as early as 2008 for her foot pain. It is not apparent from her early attendances upon her general practitioner whether she attributed her foot pain to her work, but in her evidence she says she did.
113Thereafter, her medical treaters generally accepted her history that her work involved being on her feet all day and standing on tiptoe. Her doctors, it appears, considered that the mechanism of injury concurred with her history.
114This is not a case where Ms Alapic says she was not aware of the link between her foot injury and her work until she obtained expert opinion.
115However, as already set out above, her reasons for not pursuing a legal claim when she first became aware of her injury were reasonable.
Conclusion
116There has been a considerable delay in bringing this claim. There is a reasonable explanation for that delay:
(a) Ms Alapic did not want to bring a WorkCover claim because she:
(i)wanted to keep working;
(ii)she had income protection insurance available when she had to go off work for surgery; and
(iii)she wanted to maintain her entitlement to a redundancy payment when the factory shut down;
(b) Ms Alapic likely did not know about her entitlements to a common law claim, as opposed to WorkCover payments, because she did not pursue a claim until 2019, even though she had finished worked at Venture in 2016;
(c) It was reasonable for Ms Alapic to follow the advice of her solicitors in relation to the progress of her matter after consulting them. That sequence of events resulted in further delay, but this is not delay which is attributable to Ms Alapic.
117There is general and specific prejudice to the VWA as a result of the delay. However, there remains a considerable pool of evidence including documents, photographs and witnesses, which satisfies me that a fair trial is possible.
118In all the circumstances I am satisfied that it is just and reasonable to extend the limitation period in which Ms Alapic is entitled to bring a claim.
119Parties are to provide a form of order to give effect to these reasons within seven days.
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