Atmis v Consolidated Property Services (Australia) Pty Ltd
[2021] VCC 475
•11 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-16-01962
| SERDAR ATMIS | Plaintiff |
| v | |
| CONSOLIDATED PROPERTY SERVICES (AUSTRALIA) PTY LTD (ACN 006 727 484) | First Defendant |
| VICINITY CUSTODIAN PTY LTD (ACN 077 870 243) | Second Defendant |
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JUDGE: | Her Honour Judge Tran | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 April 2021 | |
DATE OF JUDGMENT: | 11 May 2021 | |
CASE MAY BE CITED AS: | Atmis v Consolidated Property Services (Australia) Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 475 | |
REASONS FOR JUDGMENT
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Subject:Negligence
Catchwords: Whether limitation period should be extended
Legislation Cited: Limitation of Actions Act 1958 (Vic), s23A
Cases Cited:WCB v Roman Catholic Trusts Corp for the Diocese of Sale (No 2) [2020] VSC 639; Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards QC with Mr D Dealehr | Carbone Lawyers |
| For the Second Defendant | Ms K Foley | HWL Ebsworth Lawyers |
HER HONOUR:
1Serdar Atmis alleges that on 17 June 2008 he suffered an injury whilst lifting a heavy bin liner out of a bin at the Glen Shopping Centre. At the time, Mr Atmis was employed by the first defendant (Consolidated) and the Glen Shopping Centre was managed by the second defendant (Vicinity). Mr Atmis has said that the rubbish bins would often be full and contain construction rubbish such as stones; that he had complained to security guards about how full the bin liners were; and that the bin liner in question weighed over 20 kgs.[1]
[1]Plaintiff’s Answers to Interrogatories sworn 22 May 2018.
2Mr Atmis was granted a serious injury certificate on 28 January 2016. On 10 May 2016, Mr Atmis commenced these proceedings naming Consolidated as the sole defendant. On 9 December 2019, Mr Atmis was granted leave to join Vicinity as a second defendant (albeit named incorrectly).[2] The Amended Writ and Statement of Claim joining Vicinity was filed, and served on Vicinity, on about 10 February 2020.[3]
[2]No issue was taken with this on the hearing of this application and the name of the second defendant was subsequently amended to correctly name Vicinity.
[3]It was possibly not served until 13 February 2020, but nothing turns on this.
3The limitations period for any claim against Vicinity had expired nearly four years earlier, on 18 May 2016.
4This is an application by Mr Atmis under s23A of the Limitation of Actions Act 1958 (the Act) for an order extending the period within which Mr Atmis can bring an action for damages against Vicinity. Mr Atmis can only succeed if I am satisfied that it is just and reasonable to do so in all the circumstances.
5Section 23A of the Act requires me to have regard to the following expressly identified factors:
(a) the length of and reasons for the delay on the part of the Mr Atmis;
(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to Vicinity;
(c) the extent, if any, to which Vicinity had taken steps to make available to Mr Atmis means of ascertaining facts which were or might be relevant to the cause of action of Mr Atmis against Vicinity;
(d) the duration of any disability of Mr Atmis arising on or after the date of the accrual of the cause of action;
(e) the extent to which Mr Atmis acted promptly and reasonably once he knew that the act or omission of Vicinity, to which the injury of Mr Atmis was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by Mr Atmis to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
6In this case, the following additional relevant factors were identified by one or both of the parties:
(a) the prejudice to Mr Atmis in being prevented from pursuing a claim against Vicinity; and
(b) the availability of claims against other parties;
7I will address each factor in turn.
The length of and reasons for the delay on the part of the Mr Atmis
8It was agreed at the hearing that the relevant period of delay was over 12 years.
9Senior Counsel for Mr Atmis submitted that the blame for the delay could not be attributed to Mr Atmis. In bringing the proceedings solely against Consolidated, Mr Atmis had reasonably relied upon the advice of his former lawyers. It was submitted that Mr Atmis’ former lawyers had committed a ‘rookie error’ in not identifying that Vicinity, who had control over the type and size of the bins and the access to those bins by members of the public, should be joined to the proceeding.
10Counsel for Vicinity submitted that the delay was very substantial and that whilst an explanation had been given for the delay, it was incomplete. The evidence given by Mr Atmis was only that he had not been advised by any of his former solicitors to list Vicinity to his serious injury application or that his damages claim against Vicinity was subject to a limitation period. Counsel for Vicinity submitted that the advice given by Mr Atmis’ former solicitors may have been as a result of a considered decision that Vicinity should not be joined to the proceeding. This could not be assessed because the file of the former solicitors produced by Mr Atmis was incomplete and contained no written advices.
11I accept the evidence of Vicinity’s solicitor that the solicitor’s file produced was incomplete. However, it does not follow from this that I should reject Mr Atmis’ explanation of the reasons for delay. Mr Atmis was not cross-examined. His uncontradicted evidence was that he was not advised to list Vicinity as a potential respondent and was not advised of the limitation period. Speculation as to whether his former solicitors may have had some reason for forming the view that the claim against Vicinity would not succeed is not to the point in the circumstances of this case. It seems his current solicitors have a different view. It was reasonable for Mr Atmis to rely upon his former solicitors at the time. He has provided an explanation for the delay.
The extent to which, having regard to the delay, there is or is likely to be prejudice to Vicinity
Parties’ submissions on prejudice
12Counsel for Vicinity described prejudice as the ‘heartland’ of the case. She submitted that the onus was on Mr Atmis to show that a fair trial could be had. However, she also submitted that the evidence in this case was such that I ought to be satisfied that a fair trial could not be had.
13Counsel for Vicinity particularly relied upon evidence that:
(a) Vicinity first became aware of the claim on or around 13 February 2020, over 12 years after the injury;
(b) the shopping centre underwent a substantial redevelopment between 2017 and 2019. As a result:
(i)the bins in use in 2008 have been removed and replaced and Vicinity does not have access to any of the bins of the kind involved in the incident; and
(ii)the entrance where the incident occurred was built over and no longer exists;
(c) no documents relating to the incident have been able to be located in searches of Vicinity’s hard drive. Employment contracts and payroll/taxation records from 2008 have all been destroyed;
(d) Vicinity was only able to identify two people who worked at the shopping centre at the time, the Operations Manager and the Centre Manager. Neither can recall Mr Atmis or the alleged incident. Vicinity was unable to identify whether anyone and, if so, who else was performing services or working at the shopping centre on or around 17 June 2008;
(e) there was a Contractor Handbook which provided instructions to contractors about where to dispose of their rubbish and that those instructions were not to put rubbish into shopping centre bins. However, Vicinity is unable to locate a copy of the version of this handbook in use in 2008; and
(f) there was a Retailer Handbook that instructed retailers not to dispose of their rubbish at the shopping centre but to place it into compactors. Vicinity is also unable to locate a copy of the version of this handbook in use in 2008.
14Counsel for Vicinity submitted that as a result of the delay, Vicinity was unable to identify what was in the bin liner, unable to identify who might have placed it in the bin and unable to identify what steps were taken around that time by Vicinity in relation to rubbish. It was unable to identify who were the third parties leasing shops and subcontractors and tradespeople and security personnel working in the centre. As a result of the redevelopment of the Glen Shopping Centre, Vicinity was unable to assess the bins in use or the place where the injury was said to have occurred.
15Senior Counsel for Mr Atmis said that, to the contrary, it was the lack of significant specific prejudice that was the most significant factor in the case. He submitted that Vicinity now had available to it two key witnesses, the Operations Manager and the Centre Manager. These witnesses could give evidence of the existence of the Contractor Handbook and the Retailer Handbook, the contents of which it was apparent from the evidence that they specifically recalled. Vicinity also had the benefit of a report of Mark Hennessy, a consultant in public health and safety retained by Consolidated. Mr Hennessy had visited the Glen Shopping Centre on 15 April 2016 and inspected the area where Mr Atmis worked. He included in his report a photo of a bin and trolley of the kind Mr Atmis worked with. He also included a photo of the area of the Glen Shopping Centre where the injury was said to have occurred.
Consideration
16There is a general presumption of prejudice which arises in cases such as the present where a plaintiff seeks to commence a proceeding well outside the time limit.[4] Self-evidently memories of relevant witnesses will have faded 12 years after the event. Vicinity was entitled, once the limitation period expired, to order its affairs on the basis that a claim could no longer be brought against it.
[4]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556.
17It was apparent from the submissions of Senior Counsel for Mr Atmis at the hearing that a significant part of the case against Vicinity related to the adequacy of Vicinity’s ‘systems’. Evidence relevant to such a case might include:
(a) what were the systems in place to ensure that the bin liners were not too heavy to be safely lifted and, in particular, to ensure that only the general waste of customers was placed in the bins;
(b) whether there were any contractors working in the area at the time who might have placed inappropriate waste in the bins around the time of the injury;
(c) whether any of the people in the area – employees, tenants, sub-contractors, tradespeople or security personnel – had observed or been informed that rubbish was being placed in the bin other than the general waste of customers;
(d) evidence relating to whether Vicinity knew or ought to have known of any such issue; and
(e) if Vicinity did know of such an issue, what steps (if any) it had taken to prevent dumping of such waste.
18Obtaining satisfactory evidence of such matters, 12 years down the track, would be a difficult if not impossible task for Vicinity in the circumstances, even with the availability of the centre manager and the operations manager. The onus is not on Vicinity to prove that there is a specific witness who it is now unable to call. Indeed, part of the prejudice to Vicinity was that, as a result of the delay, relevant witnesses could not be identified. I am satisfied that the inability to identify and call relevant witnesses in relation to the above matters, and the likely difficulty in recollecting events of 12 years ago of the two witnesses who have been identified, significantly impacts on Vicinity’s capacity to defend the claim against it.
19The inability to locate copies of the Contractor Handbook and the Retailer Handbook is also a significant prejudice. Oral evidence of the contents of those handbooks in use 12 years previously will be significantly less reliable and informative than tendering the actual text of the handbooks.
20The Hennessy report prepared for Consolidated is also a poor substitute for Vicinity having the opportunity to investigate the circumstances of the injury itself and in particular to retain a sample bin; seek out relevant witnesses; and preserve documentary evidence of its procedures. Understandably given it was commissioned by Consolidated, that report focusses on the physical requirements of Mr Atmis’ role, rather than the procedures put in place to ensure that inappropriate waste was not dumped in rubbish bins.
21I accept that it is unlikely that Vicinity would have had available to it witnesses to the actual incident, even in the absence of any delay. It is possible that, with the benefit of CCTV, Vicinity may have been able to observe the incident and ascertain what was actually in the particular bin liner lifted by Mr Atmis on 17 June 2008 and who in particular placed it there. However, at the time, CCTV was deleted within two weeks of being recorded. Although I am required to take into account the entirety of the delay from the accrual of the cause of action, it does not follow that I must take into account as an aspect of prejudice the loss of CCTV footage which was deleted at a time before a serious injury application could have been made, let alone proceedings for damages commenced.
22On the other hand (to paraphrase McHugh J in Brisbane South Regional Health Authority)[5] had the action been brought within time, it would have been irrelevant that, by reason of the delay in commencing the action, CCTV was not available. However, now that the limitation period has expired, the lack of CCTV may nevertheless be relevant to the capacity of Vicinity to obtain a fair trial. To put it another way (as Counsel for Vicinity quite eloquently did) one of the relevant circumstances is that there is no CCTV of the incident. In the absence of CCTV, the importance to Vicinity’s capacity to obtain a fair trial of locating and obtaining reliable evidence from relevant witnesses as to the matters referred to in paragraph 17 above, is heightened.
[5](1996) 186 CLR 541 at 555.
23In conclusion, not only has Mr Atmis not rebutted the presumptive prejudice arising from the delay, I am positively satisfied that Vicinity’s capacity to defend itself against this claim is likely to be significantly hampered by the lack of relevant witnesses; the impaired memories of the two witnesses it has located; and the loss of key relevant documents.
24As Keogh J said in WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2):[6]
“The defendant is entitled to a fair trial, not a perfect one. Relevant evidence has been lost. However, a substantial body of evidence remains, only part of which has been uncovered by investigations undertaken to date… The lapse of time, absence of documentary evidence, or inability to call witnesses unavailable because of death or incapacity, does not automatically result in a trial being unfair …”.
[6][2020] VSC 639 at [94] and [204], bearing in mind that this was not an application for an extension of time under s23A of the Limitation of Actions Act 1958.
25I do not positively find that a fair trial is not possible in the circumstances of this case. However, I am satisfied that Vicinity has suffered significant prejudice to the running of its defence. This is a highly relevant factor.
The extent, if any, to which Vicinity had taken steps to make available to Mr Atmis means of ascertaining facts which were or might be relevant to the cause of action of Mr Atmis against Vicinity
26Junior Counsel for Vicinity submitted that Vicinity had received notice of Mr Atmis’ claim prior to the expiry of the limitation period and that this was relevant to this factor.
27Vicinity was not able to locate any incident report on its files. However, it was able to locate an incident report for an earlier incident involving Mr Atmis. Counsel for Vicinity submitted that I should infer that no incident report was prepared in relation to the incident the subject of this proceeding. I am not prepared to draw this inference, particularly in the context of the evidence given on behalf of Vicinity that documents were not necessarily retained longer than 7 years and may have been lost or destroyed during a business merger in 2008. Nevertheless, I accept that there is no evidence that Vicinity was notified of Mr Atmis’ injury at or around the time that it occurred.
28However, it was submitted on behalf of Mr Atmis that the potential for a claim by Mr Atmis against Vicinity was subsequently brought to Vicinity’s attention. In particular, Mr Atmis relied upon evidence in various reports that:
(a) permission to access the CCTV footage had been sought after the first defendant was notified of the injury, but it had already been overwritten;
(b) a functional education assessment was undertaken at the Glen Shopping Centre in 2009;
(c) an occupational therapist visited the Glen Shopping Centre and spent time with Vicinity’s contract manager in 2009 and possibly also 2010; and
(d) Mr Hennessy visited the Glen Shopping Centre on 15 April 2016 and spent time with the “Centre Manager”.
29The reports relied upon do not identify by name any employees of Vicinity and do not provide any information of what was actually said in relation to Mr Atmis’ claim. I am not prepared to infer from this evidence that Vicinity knew or ought to have known that Mr Atmis had or would make a claim against it. In any event, each of these matters pre-dated the expiry of the limitations period. After the expiry of that limitation period, Vicinity was entitled to assume that no such claim would be brought. In the circumstances, I am not satisfied that Vicinity can be fairly viewed as responsible for any prejudice it will suffer by reason of delay or that there were steps it should have taken to make available to Mr Atmis means of ascertaining facts which might be relevant to the claim.
30This is not a relevant factor.
The duration of any disability of Mr Atmis arising on or after the date of the accrual of the cause of action
31This was agreed not to be a relevant factor in this case.
The extent to which Mr Atmis acted promptly and reasonably once he knew that the act or omission of Vicinity, to which the injury of Mr Atmis was attributable, might be capable at that time of giving rise to an action for damages
32Mr Atmis’ evidence was that at no time prior to retaining his current solicitors was he advised that his damages against Vicinity was subject to a limitations period. Mr Atmis current solicitors came on the record in March 2019. There was some months’ delay between the retainer of Mr Atmis’ current solicitors and the application for leave to join Vicinity. Mr Atmis was then granted leave to join Vicinity on 3 December 2019 but did not file and serve the writ until 10 February 2020. No explanation is given for these periods of delay.
33In oral submissions, Senior Counsel accepted that it may have been preferable if notice of the claim had been given to Vicinity prior to February 2020. However, these periods of delay are not particularly significant in all of the circumstances of this dispute and no specific prejudice is said to arise from this delay. I accept that Mr Atmis acted promptly and reasonably once advised by his lawyers to join Vicinity.
The steps, if any, taken by Mr Atmis to obtain medical, legal or other expert advice and the nature of any such advice he may have received
34Neither party made submissions in relation to medical or other expert advice obtained by Mr Atmis. As to the legal advice received, this has already been addressed above, particularly in relation to the reason for the delay.
Prejudice in loss of claim against Vicinity
35The prejudice to Mr Atmis in being unable to pursue an otherwise arguable claim forms part of the relevant circumstances.
36Counsel for Vicinity submitted that the case against Vicinity could not be viewed as a strong one, given Mr Atmis was not employed by Vicinity, Vicinity had appropriately engaged both the first defendant and security guards, Mr Atmis could not identify the person to whom he had complained and the difficulties in establishing causation.
37I am not prepared to make findings as to the strength of Mr Atmis’ case, beyond noting that I am satisfied on the basis of material before me that he has an arguable case. From the material filed before me it seems that a significant part of Mr Atmis’ case is that these bins were too large and at times were excessively heavy and filled with inappropriate items. At trial it may be held that these were matters peculiarly within the responsibility of Vicinity, notwithstanding Consolidated’s non‑delegable duty of care.
38The prejudice to Mr Atmis in being unable to pursue a claim against Vicinity must be taken into account.
Availability of other claims
39A factor sometimes relied upon in s23A applications is the availability of a cause of action against the plaintiff’s former solicitors. However, Vicinity accepted that it was not possible to assess the strength of any such claim in the present case. I also bear in mind the caution which should be exercised when viewing a possible cause of action against solicitors as ameliorating the prejudice of being unable to pursue a claim for damages.[7] I do not give this factor significant weight in all the circumstances.
[7]Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7, at 15.
40Another relevant factor is that Mr Atmis has commenced a claim against his former employer within time, which he remains able to pursue. This is a more direct claim than a claim against his former solicitors for loss of a chance to sue Vicinity. However, I also take into account the possibility that Mr Atmis will not be successful against Consolidated when he might have been successful against Vicinity.
Synthesis of all relevant circumstances
41I have considered all of the above matters and weighed them up ‘in the synthesis’ as I am required to do. The most significant factors in this case are the very lengthy delay, the resultant prejudice to Vicinity (both presumed and specifically proven) and the prejudice to Mr Atmis of being unable to pursue his claim against Vicinity. I am conscious that I must perform an exercise of intuitive synthesis in determining whether I am satisfied it is just and reasonable to extend the period to bring proceedings, rather than weighing one prejudice against another.
42Having done so, I am not satisfied that it is just and reasonable to extend the period within which Mr Atmis can bring proceedings against Vicinity.
43I will hear from the parties on the question of costs, including the costs of the hearing on 26 February 2021.
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Certificate
I certify that these 12 pages are a true copy of the reasons for decision of her Honour Judge Tran, delivered on 11 May 2021.
Dated: 11 May 2021
Susan Thomas
Associate to her Honour Judge Tran
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