Andrew Dennis Walker v The Electrotechnology Industry Group Training Company Ltd and Ecowise Services (Australia) Pty Ltd (No 1)
[2016] ACTMC 12
•29 June 2016
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Andrew Dennis Walker v The Electrotechnology Industry Group Training Company Ltd & Ecowise Services (Australia) Pty Ltd (No 1) |
| Citation: | [2016] ACTMC 12 |
| Hearing Date: | 15 June 2016 |
| DecisionDate: | 29 June 2016 |
| Before: | Magistrate Morrison |
| Decision: | See [40] – [41] |
| Category: | Interlocutory application |
Catchwords: | CIVIL LAW – damages for personal injuries – application to extend time under s36 Limitation Act 1985 – whether exclusion in s36(5) applies – criteria for considering extension application – extension ordered |
Legislation Cited: | Limitation Act 1985 (ACT), ss 16A, 16B, 36 |
Cases Cited: | S and B Pty Limited v Podobnik (1994) 53 FCR 380 Stefek v Garnama Pty Ltd [2014] ACTSC 140 |
| Parties: | Andrew Dennis Walker (Plaintiff) |
| Representation: | Counsel Solicitors |
| File Number: | CS 785 of 2015 |
MAGISTRATE MORRISON:
The plaintiff’s application is to extend the time within which his action may be brought to 7 September 2015. The originating claim was in fact filed on 8 September 2015 and I treat the application as seeking an extension to that date.
The application is made pursuant to s36 of the Limitation Act 1985 (ACT).
The evidence comprises:
(a)For the plaintiff – the plaintiff’s affidavit sworn 21 April 2016 and the affidavits of his solicitor Phillip Schubert affirmed 6 May 2016 and 10 May 2016;
(b)For the first defendant – the affidavit of Jessica McDonald sworn 9 May 2016 (not including paragraph 14); and
(c)For the second defendant – the affidavit of Murray Tavener sworn 6 May 2016.
In addition I heard some oral testimony from the plaintiff.
The plaintiff was cross examined by counsel for both the first defendant and the second defendant. I refer to some particular aspects of his testimony later in these reasons but for present purposes I comment that he presented as an honest and reliable witness, who, in the course of cross examination made various concessions and did not appear to be tailoring his testimony to meet the assertions put to him.
A preliminary point was raised about whether s36 of the Limitation Act can be invoked. The evidence relied on in submissions on that point was also relevant to a submission about the strength of the plaintiff’s claim which went to the exercise of the discretion if s36 applies. It is appropriate to consider the relevant evidence in this area first.
The cross examination of the plaintiff by Mr Macfarlane canvassed the physiotherapy and other reports put into evidence, and what they said about improvement in the plaintiff’s condition in the period shortly after injury. It was put to the plaintiff in cross examination that he did not return to his pre-injury duties because he didn’t want to do so and not because of the effects of his injury. He said that was not the case.
There is evidence that the plaintiff had said to a physiotherapist in November 2010 that he was thinking of a possible career change. He had been assessed as being fit to return to pre-injury duties in March 2011.
In the course of cross examination the following exchange had taken place:
MR MACFARLANE: You were fit for pre-injury duties at 23 March 2011?
---I was still suffering a little bit of pain and discomfort at that stage.
So is what you're saying that - sorry. You didn't disagree at all with the assessment in the case closure report dated 23 March 2011, did you?---I was told I was going to get better. It was just time that was going to make it better.Well, earlier in the questioning, you agreed with me that you read these reports carefully, and that you agreed with the contents of those reports. Do you recall giving that evidence?---Yes.
As at 23 March - on or about 23 March 2011 when you read the case closure report, it said you were fit for pre-injury duties. That was correct, wasn't it?
---Well, yes.
The truth is that you didn't return to pre-injury duties because you didn't want to. Correct?---No.In re-examination the plaintiff went on to say that he did not return to his pre-injury duties because he was concerned that he would re-injure himself or exacerbate the earlier injury.
By way of preliminary issue, Mr Macfarlane for the second defendant argued that s36 could not be relied upon by the plaintiff because he had not established that the exclusion in s36(5) did not apply. Mr Shillington for the first defendant did not join in that submission.
Section 36 does not apply to a cause of action to which s16B applies. Section 16B applies to a cause of action other than one to which s16A applies. Section 16A relevantly applies to a cause of action if it relates to a compensable injury under the Workers Compensation Act 1951 (ACT); and a claim could be or could have been made in relation to the cause of action under that Act, if the required notice had been given.
Dispensing with the somewhat convoluted combination of the exclusion and double negative, s36 applies only to a cause of action in s16A. It is for the plaintiff to establish that s36 applies, and therefore that it falls within s16A.
As I understand Mr Macfarlane’s submission it is that the evidence does not establish a link between any incident at work on 6 October 2010 and the injuries and effects complained of by the plaintiff subsequent to being found fit to return to pre-injury duties such that I cannot be satisfied that the plaintiff’s cause of action falls within s16A.
As I mentioned earlier, the evidence to which I have referred was also relied upon in a submission about the strength of the plaintiff’s claim. As I understood the submission it is that the evidence, including that to which I have just referred, undermines the strength of the plaintiff’s claim; that being a factor to be considered in the exercise of the discretion to extend time.
It is convenient to deal with the strength of claim argument first.
In summary, the plaintiff’s testimony was to the effect that he was still suffering some pain and discomfort when assessed as being fit to return to pre-injury duties despite not raising any argument about that assessment; that he had been told that he would get better with time; and that concern about re-injury was at least part of the reason for him not returning to those duties. At hearing, that testimony may be subject to attack in a range of ways, but it does not present as farfetched or unbelievable, and I am not persuaded that it should be rejected for the purposes of the application.
Consideration of the strength of the plaintiff’s claim for the purposes of the application logically requires only a prime facie assessment. It was described by Gallop J in S and B Pty Limited v Podobnik (1994) 53 FCR 380 at 404 in terms of “the apparent strength of the plaintiff’s claim”. In the circumstances and having regard to all of the material before me I am not persuaded that weakness in the plaintiff’s claim is a factor weighing against the exercise of the discretion.
As I understand the submission in relation to the application of s36 by way of a preliminary point, it is that the evidence does not establish any causal connection between any work incident on 6 October 2010 and the injury and effects claimed by the plaintiff subsequent to being found fit to return to pre-injury duties, such that the plaintiff’s cause of action does not fall within s16A.
The conclusion already made about the merits of the plaintiff’s case answers the submission made about this preliminary point, but the submission must be rejected in any event for other reasons.
The first defendant’s submission directs attention to the extent of the plaintiff’s claim by reference to alleged injury and effects after he was found to be fit for pre-injury duties, but the express wording of s16A(1)(b) makes clear that what is necessary is that the plaintiff’s cause of action could have been the subject of a relevant claim, without reference to any particular aspect or part of that cause of action. The loss and injury pleaded in the statement of claim is not limited to the injuries and effects allegedly suffered by the plaintiff after he was declared fit for pre-injury duties. That is to say his cause of action, as pleaded, relates to all of what he says are the injurious consequences of the 6 October 2010 incident. There is ample evidence to support a conclusion that the cause of action so pleaded falls within s16A regardless of whether his cause of action extends to a claim for injuries and effects post a particular date. For that reason the argument about the application of s36 must fail independently of the conclusion reached about the merits of the plaintiff’s claim.
I turn now to the other arguments on the application.
In Stefek v Garnama Pty Ltd [2014] ACTSC 140, Mossop AsJ summarised the relevant principles to be applied in dealing with applications under s36 in this fashion:
20The power to extend time may be exercised notwithstanding that the limitation period has expired and may be exercised after the relevant proceedings have been commenced: s 36(4).
21In deciding whether or not it is just and reasonable the Court is obliged under s 36(3) to have regard to “all the circumstances of the case” including six specific matters, which are listed in paragraphs (a)-(f). I will refer to the terms of those paragraphs below.
22The primary question is whether, in all the circumstances, it is “just and reasonable” to grant the application: s 36(2); Sessions v Phengsiaroun [2008] ACTSC 132 at [40].
23A material, and often the most important, question is whether, by reason of the time which has elapsed, a fair trial is possible: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 547-548, 550, 555. Sessions at [41]; Laws v Web Scaffolding [2010] ACTCA 3 at [37].
24The overall onus is on the plaintiff to demonstrate that it is just and reasonable to extend time. That onus remains with the plaintiff throughout. If a defendant, however, wishes to rely on actual prejudice then the defendant bears the onus of adducing or pointing to evidence sufficient to establish that fact: Brisbane South at 547, 551, 553-554, 566-567; Laws v Web Scaffolding at [34]-[36].
25The criteria specifically referred to in s 36 are not exhaustive. However, they do point reasonably comprehensively to areas of relevance: Sessions at [42].
26One matter not mentioned in s 36 is the relevance of a possible cause of action vested in the plaintiff for damages for any neglect or default on the part of the plaintiff’s solicitors in prosecuting the plaintiff’s claim. In general, notwithstanding the availability of a claim against the plaintiff’s solicitors, the primary wrongdoer should be looked to for compensation although there may be occasions when a proper balance between the blame to be attributed to the plaintiff’s solicitor and prejudice to a defendant would mean that an applicant under s 36 should be required to pursue his or her solicitors: Daroczy v B & J Engineering Pty Ltd (in liq)(1986) 67 ACTR 3 at 18; Noja v Civil and Civic Pty Ltd & Ors [1990] FCA 135; (1990) 93 ALR 224; Sessions at [42].
27The prospects of success of the proposed plaintiff are also a matter which may be considered: Paramasivam v Flynn [1998] FCA 1711; (1998) 90 FCR 489 at 496-497; Doyle v Gillespie (2010) 4 ACTLR 188 at [43].
28When assessing the prejudicial effects of delay it is relevant to consider the whole of the delay between the cause of action arising and a hearing of the proceedings if leave is granted rather than the marginal delay between the end of the limitation period and such a hearing: Brisbane South at 548-549, 554-555, 556
29Prejudice may be presumed as a consequence of the effluxion of time even if actual prejudice is not demonstrated: Brisbane South at 551, 556.
30Where actual prejudice of a significant kind is demonstrated or a real possibility then it is more in accord with the legislative policy underlying limitation periods that the plaintiffs lost right should not be revived than the defendant should have a spent liability reimposed: Brisbane South at 555.
Mr Shillington for the first defendant argued two bases for the application to be refused. The first was that the first defendant had suffered prejudice because the workers’ compensation insurer, standing in the shoes of the first defendant for the purposes of the proceedings, had closed its file and treated its contingent liability as at an end. Mr Shillington is correct to point out that the insurer was entitled to do so and that re-opening that contingent liability for the insurer is properly taken into account as a factor to be weighed in the balance when considering whether it is just and reasonable to extend time. No other prejudice is asserted.
The second argument raised on behalf of the first defendant is that the delay in commencing proceedings after the plaintiff became aware of the limitation period was unexplained and unreasonable and ought to preclude the plaintiff from the relief sought.
The evidence establishes that the plaintiff attended the office of his solicitors on 8 February 2015; that he received advice at that time of the relevant limitation period and that proceedings were commenced by the filing of the originating claim on 8 September 2015. The interval is seven months.
The plaintiff’s affidavit deposes to the fact that during that period between February and September 2015:
(a)He attended on his general practitioner and was given a referral for an MRI scan;
(b)He underwent an MRI scan on his thoracic spine;
(c)He retained Blumers Lawyers to act for him;
(d)He attended upon a Dr Rudzki and had injections into his thoracic spine;
(e)He attended upon a Dr Brooder, consultant neurologist, and his lawyers obtained a medico-legal report; and
(f)He attended upon a Mr Michael Lawrence, occupational therapist and occupational health consultant and with that person and his solicitor visited the site where he says the incident occurred for the purpose of obtaining a report from Mr Lawrence.
Mr Sainty for the plaintiff says that the time interval just referred to is explained by the investigation, and that those investigations were reasonable and necessary having regard to the usual certificate which the lawyer for the plaintiff was required to sign on issue of the originating claim. That certificate requires the lawyer to certify that, on the basis of provable facts and a reasonably arguable view of the law, the claim has reasonable prospects of success.
Mr Shillington objected to the submission on the basis that there is no direct evidence from the lawyer to the effect that the time taken to commence proceedings was to put the lawyer in a position to sign that certificate. Applications such as these would be assisted if there was evidence from the lawyer expressly to that effect, but I am prepared to, and do, in this case draw that inference in any event. In the end result I am satisfied that it was reasonable for the steps which were taken to be taken before the commencement of proceedings, and that the time taken was not unreasonable.
I turn to the arguments addressed by the second defendant to the criteria set out in s36(3).
The length of and reasons for delay on the part of the plaintiff
(a)The limitation period expired on 6 October 2013, such that the delay in commencing proceedings is almost 2 years. That is not an interval of time which can be regarded as minimal.
(b)The plaintiff in his affidavit deposed to the fact that he was unaware of any time limit for the commencement of proceedings. He gave evidence to the same effect. It was not suggested to him that he did not have the belief he says he had. He is now 26 years of age and was 19 when injured. He says that his decision to seek legal advice was triggered by his back going “into spasms” while playing with his nephew in early 2015. He sought that legal advice on 8 February 2015.
(c)The second defendant’s submissions describe the plaintiff’s explanation as inadequate. The structure of the legislation is not such that the failure to provide an adequate explanation (whatever that might mean) disqualifies a plaintiff from the relief sought. Rather, the delay and reasons for it are one of the criteria to be taken into account. To the extent that the submission is intended to suggest that the reason given weighs heavily against the exercise of the discretion provided for I do not agree.
(d)The second defendant under this heading joins with the first defendant in submitting that there is no excuse for the delay between when the plaintiff was informed of the limitation period and when proceedings were commenced. For the reasons given earlier I do not accept that the time interval was unreasonable in the circumstances.
The extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant
(a)No submission is made on behalf of the second defendant that any prejudice arises. I have already commented on the prejudice submission made on behalf of the first defendant.
The conduct of the defendant after the cause of action accrued to the plaintiff, including the extent (if any) to which the defendant took steps to make available to the plaintiff means of ascertaining facts that were or might be relevant to the cause of action of the plaintiff against the defendant
(a)This factor is not relevant.
The duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action
(a)This is not a material consideration in the circumstances.
The extent to which the plaintiff acted promptly and reasonably once he or she knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages
(a)The second defendant makes two submissions under this heading. One repeats what was submitted about the delay in commencing proceedings after the plaintiff was advised of the limitation period. I have already dealt with that submission.
(b)The second submission raises something of a separate issue. This criterion in s36 directs attention to the conduct of the plaintiff once he knew that some conduct of the defendant might be capable of giving rise to a claim for damages. The evidence in relation to the plaintiff’s knowledge on this point is not so clear. It can be inferred that the plaintiff turned his mind to a claim of some description at the time he consulted his lawyers in February 2015. He says that he was unaware before doing so of any limitation period but the evidence does not extend to whether and when he became aware that he may have a claim for damages. As a result I am unable to reach any conclusion in relation to this criterion.
The steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice the plaintiff may have received
(a)The second defendant is critical of the lack of evidence from the plaintiff in relation to this criterion. There is evidence of the plaintiff having a flare up of back pain in March of 2012. He deposes to advice that his back would settle over time and recover but does not particularise that advice or say from whom it came. Having regard to the context in which this statement appears in his affidavit I infer that the advice came from the general practitioner he consulted at the Gungahlin General Practice. Nothing in the clinical notes which are exhibit ADW-10 to his affidavit is inconsistent with that conclusion.
(b)The plaintiff goes on in his affidavit to say that his back did not settle and he continued to have pain and discomfort. He then refers to experiencing pain when playing with his nephew in early 2015 and his subsequent attendance seeking legal advice. He does not say that any further medical advice was sought between 2012 and 2015. He does not say why he did not seek any further medical advice. The criticisms of what is lacking in the plaintiff’s evidence to be considered under this criterion do have some merit.
To grant the relief sought by the plaintiff I must be satisfied that it is just and reasonable to do so. The plaintiff bears the onus of persuading me that the relief he seeks should be granted. As will be apparent from the reasons above there are factors working both in favour of and against granting the relief sought.
To refuse the application is to preclude the plaintiff forever from pursuing his claim for damages flowing from the work incident on 6 October 2010.
A material consideration is whether a fair trial is possible. The prejudice asserted to be suffered by the first defendant is limited to the loss of its entitlement to treat its contingent liability as being at an end. That is properly part of the considerations but is not of itself weighty and does not mean that a fair trial is not possible. The plaintiff submits that a fair trial is still possible, and the evidence before me on the application supports that submission. The submissions made on behalf of the defendants do not persuade otherwise.
Having regard to all the circumstances I am persuaded that it is just and reasonable to extend the time within which the plaintiff’s cause of action may be brought and I so order.
On the question of costs, the plaintiff has come to court seeking an indulgence. I did not receive submissions on costs. In the circumstances I make the following orders:
(a)That the plaintiff pay the defendants’ costs of the application;
(b)That the costs are not payable until determination of the proceedings;
(c)That this costs order not take effect if any party makes a request of my associate within 14 days that the matter be relisted for submissions seeking some different costs order.
I certify that the preceding forty one (41) paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate P J Morrison.
Associate: Emma Buckland
Date: 22 June 2016
0
9
2