Batten v VWA
[2016] VSC 751
•24 November 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2013 05389
| WAYNE DAVID BATTEN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY (in substitution of GINEVRA NOMINEES PTY LTD (deregistered)) | Defendant |
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JUDGE: | T FORREST J |
WHERE HELD: | Wodonga |
DATES OF HEARING: | 21, 22, 23 November 2016 |
DATE OF RULING: | 24 November 2016 |
CASE MAY BE CITED AS: | Batten v VWA |
MEDIUM NEUTRAL CITATION: | [2016] VSC 751 |
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LIMITATION OF ACTIONS – Negligence – Personal injury – Limitation of Actions Act 1958 (Vic) – Whether limitation period should be extended under s 23A – Plaintiff seriously injured - Prejudice resulting from delay– Limitation period extended.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Monti QC and Mr R. Morrow | Slater and Gordon |
| For the Defendant | Mr A. Moulds QC and Ms B. Myers | Wisewould Mahony Lawyers |
HIS HONOUR:
The plaintiff alleges that he was injured in a workplace accident on a farm on the Oxley/Meadow Creek Road at Docker, near Greta, in the north-east of Victoria. The accident is said to have occurred on 7 February 2002 at cattle yards then owned by Ginevra Nominees Pty Ltd (‘Ginevra’). The accident and the resulting injuries are alleged by the plaintiff to be caused by the negligence of Ginevra in failing to provide safe cattle yards at the farm, failing to heed warnings about the shortcomings of the yards, and other associated particulars of negligence. The plaintiff also alleges breaches of the Occupational Health and Safety Act 1985, and a breach of a contract of employment said to have governed the relationship between Mr Batten and Ginevra.
The plaintiff did not commence proceedings for a serious injury certificate until 16 May 2012; that is more than 10 years after the accident. In this application he seeks leave under s 23A of the Limitation of Actions Act 1958 (‘LAA’) for an extension of time in which to issue proceedings.
The defendant in these proceedings is the Victorian WorkCover Authority (‘VWA’), which was substituted as the defendant for the deregistered Ginevra pursuant to s 601AG of the Corporations Act 2001.
Circumstances
The plaintiff is a farmer who, in 2002, was part of a family partnership with his father and his former wife. In addition to assisting with running the two Batten family farms, Mr Batten alleges he was employed by Ginevra as a farmhand. Ginevra was the family company of Mr & Mrs Ginevra Their son-in-law was a Mr Eric Milano. Ginevra Nominees either employed the plaintiff to perform work around Mr and Mrs Ginevra’s farm, instructed by Mr Milano, or it independently contracted out work around the farm. The precise status of Mr Batten’s relationship with Ginevra Nominees is disputed between the parties. If the plaintiff cannot establish that he is a ‘worker’ within the meaning of the Accident Compensation Act 1985 (‘ACA’) his case will fail.
Regardless of his status on 7 February 2002, Mr Batten attended at the Docker farm to assist in tending to a large steer, apparently lame.
Also present according to the plaintiff was his father, Mr David Batten, and Dr Smith from the Wangaratta Veterinary Practice. The steer was separated from the herd and placed in steel cattle yards. According to the plaintiff, these yards were old and in poor repair. The yards had a race but no crush. The steer was administered a sedative by the vet in the race attached to the yards. The steer was then backed out of the race but did not drop as expected. It was placed in the race again and further sedative was administered. Again it was backed out of the race and into a smallish holding pen area immediately behind the race. The plaintiff was standing behind a steel gate that provided access to the holding pen. The steer allegedly went berserk. It charged around the pen, knocking the fastening device to the gate rendering it inoperative. It charged the now unfastened gate and it swung outwards towards the plaintiff striking him on his right knee. Both David Batten and Dr Smith, the vet, were well placed to see what occurred.
The plaintiff immediately felt pain in his knee and consulted his G.P. on 8 February 2002. His G.P. observed swelling and effusion and referred Mr Batten to Mr Falkenberg, an orthopaedic surgeon. The plaintiff’s knee did not settle down and in September 2003, that is seven months after the incident, the plaintiff had the first of three arthroscopies ultimately carried out on the affected knee. The second arthroscopy was carried out in April 2004, and the third in June 2006; 4½ years post-accident. Although the plaintiff got back to his duties as a farmer within a couple of weeks of each arthroscopy, his knee progressively deteriorated.
The six-year limitation period on the plaintiff’s issue of his cause of action expired on 6 February 2008. The last of the plaintiff’s arthroscopies had been carried out 20 months earlier. The plaintiff continued to work on his own farm but ceased carrying out duties at the Ginevra farm in 2007.
In early 2009, the plaintiff states he was advised by Mr Falkenberg that he could offer the plaintiff no further arthroscopic options and that his knee was arthritic. Mr Falkenberg referred the plaintiff to Mr Trivett, who carried out a high tibial osteotomy in December 2009. It was now seven years nine months since the accident. The plaintiff was wheelchair-bound for several months. Whilst so immobolised, the plaintiff rang his Family Law solicitors, Stewart and Noble, in February 2010 seeking some form of compensation for his inability then to work. He was referred to Slater & Gordon. A solicitor from that office spoke to the plaintiff by telephone on 25 February 2010 and wrote to him on 1 March 2010 (‘1 March letter’). The plaintiff’s oral instructions to Slater & Gordon about the circumstances of his accident were recited. The plaintiff was then advised in writing about Permanent Injury claims, Common Law Negligence claims and Weekly Payments of Compensation claims.
In relation to Common Law claims for damages, the plaintiff was advised in the 1 March letter, inter alia, about the ‘Serious Injury’ process and the need to demonstrate negligence on the part of his employer or another party. In relation to time limits, the plaintiff was advised that generally he had six years from the date of his injury to commence a claim. The letter reads at this portion:
(b)ased on your instructions…you are strictly speaking statute barred from making a common law claim. However given that you were unaware of your rights to pursue such a claim until now, and given that the full extent of your injury was not known until your surgeries last year (2009), it is arguable that you may be able to invoke an exception to the 6 year rule. As considerable preparation is needed before a claim can be lodged you should take steps to protect your interests at an early stage…
A little later in the letter, the author states:
I will further investigate your common law entitlements after reviewing medical reports obtained for your impairment lump sum. I should then be in a better position to provide you with advice on your common law prospect.
It appears the plaintiff attended at Slater & Gordon on 16 March 2010 where he filled out and signed a WorkCover claim for compensation. He conferred with a different solicitor on this day. Between March 2010 and June 2010, there were approximately 15 phone calls received by Slater & Gordon from the plaintiff. These calls appear primarily to do with his application for weekly payments, which was accepted. The plaintiff received weekly payments for 130 weeks.
In February 2011, the plate and screws inserted during the high tibial osteotomy were removed under anaesthetic by Mr Trivett. In July 2011, the plaintiff made a claim for a permanent impairment under s 98C. Ten months later, in May 2012, the WorkCover claims agent accepted liability for the lump sum permanent impairment claim.
Only then, after the weekly payments had been claimed and after the s 98 impairment claim had been met, did the plaintiff’s solicitors take a step towards common law. On 16 May 2012, a Serious Injury application was lodged. It was determined favourably to the plaintiff in August 2013. A writ was issued in October 2013 and an undated amended statement of claim was served some time in 2016. No defence had been filed in the matter as Ginevra had become deregistered. The VWA was named as defendant in substitution for the deregistered defendant, and on 13 April 2016, the VWA filed a defence in the matter which, for the first time, alleged that the plaintiff’s claim was statute-barred.
Evidence
The plaintiff gave evidence by way of two affidavits sworn for these s 23A proceedings, and was cross-examined. His evidence generally supported the chronology of events that I have outlined. He explained that from about 2000 Mr Eric Milano had taken control of the Ginevra farming property and engaged David Batten and the plaintiff to work on that farm. Mr Milano would issue instructions over the phone and come to the area monthly. He described how the accident occurred (I have already referred to this) and that he rang Mr Milano and told him that night of his knee injury. His knee did not improve as he hoped and he informed Mr Milano regularly that he was struggling with his knee injury. He stated that he had complained to Mr Milano both before and after the accident about the poor state of repair of the cattle yards. Some months after February 2002 Mr Milano engaged a local engineer to effect some repairs to the yards, although they remained in poor condition. He ceased working for Ginevra in about 2007.
The plaintiff described the history of his treatment and symptoms in the same broad terms that I have already set out.
He stated that he had no knowledge of his rights for compensation for personal injury in February 2002. This state of knowledge persisted. He stated, and I accept, that his only contact with solicitors prior to 2010 was when he used family lawyers at the time of his marriage break up in 2007.
In early 2010, he saw an advertisement for Slater & Gordon on television. This roughly coincided with him telephoning his family law solicitors, Stewart and Noble, of Wangaratta, to ascertain his compensation rights. It was arranged that a solicitor from Slater & Gordon speak to him by telephone, and this occurred on 25 February 2010. He accepted that he received the 1 March 2010 letter from Slater & Gordon that I have referred to earlier in these reasons. His evidence as to when he actually appreciated that he was out of time to bring Common Law proceedings was a little inconsistent. In answer to a question I asked he accepted that he would have known at the time he received the Slater & Gordon letter of 1 March. To Mr Moulds, he seemed to resile from this position. Little turns on this inconsistency however as the plaintiff had an in-person conference a solicitor on 16 March 2010 and I consider it certain that the plaintiff must have known by this stage that he was out of time.
The plaintiff generally confirmed the chronology of the legal process instituted on his behalf. He stated he was in a wheelchair at about this time and had difficulty getting to Wangaratta, but nevertheless rang his solicitors asking what was going on: ‘I felt in the dark as I had no previous knowledge of WorkCover and I assumed when I did not hear much that that was the way the system was’. He said that he was advised that he may have an entitlement to damages and ‘(a)fter that I presumed my claim was in their hands’. ‘Until my conversation with the solicitors in early 2010, I had no knowledge whatsoever about Common Law damages. I have never pushed a claim for damages for any injury before. I had never even heard of Common Law’.
Mr Batten was cross-examined by senior counsel for the defendant, Mr Moulds. He stated the yards remained in position on the former Ginevra property, and were largely in the same modestly repaired condition as 2002. He accepted that invoices from Batten Family Nominees may be incomplete. He did not prepare the invoices or the ledgers; his former wife was the bookkeeper. He said he now rarely communicates with her. His father has done the books since the 2007 marriage breakdown. He agreed that in 2006, after the last arthroscopy, Dr Falkenberg told him his knee was ‘full of arthritis’ and that he would probably require a tibial osteotomy. He was taken through the letter of 1 March 2010; he agreed the Common Law time limits were clearly set out. He said he knew at that point (March 2010) he was out of time. Later, he said he would have read the letter but he did not recall it. He left the matter in Slater & Gordon’s hands; he agreed he would have seen a lawyer from Slater & Gordon on about 16 March 2010.
The plaintiff stated that the witnesses to the accident were himself, his father and a vet from the Wangaratta Veterinary Centre. He said he held the opinion since the time the accident occurred that the accident happened because of defective yards. He said that from the time the accident occurred to just before he saw Slater & Gordon he had not pursued a legal claim, and was hoping his knee would get better. He agreed he left school in Year 10, completed a Diesel Mechanics apprenticeship (including a theory component), and, more recently, had qualified for a CASA licence to fly his microlight aircraft.
In re-examination he stated he went back to work about two weeks after each arthroscopy procedure. He said that when he received the 1 March 2010 letter he did not understand all of its contents. He said that when he discovered that the tibial osteotomy involved several months in a wheelchair, he rang Eric Milano and asked him to cover his wages while he was off work. Eric refused. He said his capacity to read, write and spell was limited.
Dr Smith, the vet, was called by the Defendant. His evidence was that he may have attended the Ginevra property in February 2002, but had no memory of an incident which occurred there at about that time whereby someone was injured.
The plaintiff
My impression of Mr Batten is that he is an unsophisticated farmer of reasonable, if not towering, intelligence. I consider him to be totally honest. Insofar as I can judge, I consider him to be of stoic disposition, living a relatively isolated life as a farmer and single parent.
Legal principles
Section 55 of the LAA provides that actions in contract and tort should not be brought after the expiration of six years from the date on which the cause of action occurred. Section 23A of the LAA operates to empower a court to extend the limitation period in personal injuries tort cases in certain circumstances.
Relevantly, the LAA reads:
23A Personal injuries
…
(2)Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines.
(3)In exercising the powers conferred on it by subsection (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following—
(a)the length of and reasons for the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c)the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
(e)the extent to which the plaintiff acted promptly and reasonably once he 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;
(f)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
In Axford v Gray & anor[1], I summarised the principles which apply to this type of application. I repeat what I said at [10] of this judgment (citations omitted):
[1][2013] VSC 664 (‘Axford’).
The principles which apply to this application are similar to those which applied to applications brought under s 23A of the Act.[2] Those principles can be summarised as follows:
[2]GGG v YYY [2011] VSC 429 at [189] (cited in Axford, [10]).
· The plaintiff bears the onus of establishing that it is just and reasonable to order that the limitation period be extended.[3]
[3]Bell v SPC Ltd [1989] VicRp 15; [1989] VR 170 at 174-175; Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 (‘Brisbane South’) at 547 (cited in Axford, [10]).
· Should the defendants establish by evidence that they may suffer prejudice by granting the plaintiff an extension of time, then it is for the plaintiff to demonstrate that that evidence does not demonstrate prejudice.[4]
[4]Brisbane South at 547 (cited in Axford, [10]).
· The considerations referred to in subsections (1) and (2) above are not to be weighed against each other; the Court must endeavour to synthesise the competing considerations in arriving at a conclusion that takes account of all of them.[5]
[5]Tsiadis v Patterson [2001] VSCA 138; (2001) 4 VR 114 at 123 (cited in Axford, [10]).
· The relevant delay is the delay between the accrual of the cause of action and the making of the application for an extension of time.[6]
· Relevant prejudice to a defendant is that which has actually occurred by reason of the relevant delay, as well as prima facie prejudice to a defendant who would otherwise have the benefit of the limitation period.[7]
· The longer the delay in commencing proceedings the more likely will be prejudice from lost witnesses or fading recollections.[8]
[6]Delai v Western District Health Service & Anor [2009] VSC 151 at [22] (cited in Axford, [10]).
[7]Brisbane South at 544 (cited in Axford, [10]).
[8]Brisbane South at 551 (cited in Axford, [10]).
Counsel’s submissions
Mr Monti QC, for the plaintiff, submitted that the length of, and reason for, the delay was a combination of Mr Batten’s relatively unsophisticated stoic nature, his isolation out on the farm, his ignorance of legal matters (particularly Common Law damages) and his initial expectation that this was a relatively minor injury from which he would recover.
In criticising Mr Milano, the plaintiff’s manager, for not advising the plaintiff of his rights, Mr Monti impliedly highlighted a distinction between a factory worker injured on a work site with incident reports, union support, perhaps factory medical staff and advice available on the one hand and, on the other, someone in the plaintiff’s position.
Mr Monti submitted that the plaintiff finally realised the serious nature of his predicament in late 2009 (nearly eight years after injuring himself) when the high tibial osteotomy was performed. Following this realisation he acted promptly seeking legal advice and the fault thereafter for the delay lay at his solicitor’s feet.
Mr Monti submitted that the prejudice to the defendant was relatively confined:
1.Whilst Dr Smith, the attending vet, now had no recollection of the incident, it is highly likely that he would have lost any recollection of the incident within a short time in any case. The vet treated cattle in cattle yards on hundreds of occasions during his time at the Wangaratta Clinic, the incident was relatively innocuous, and the vet conceded the likelihood that his memory would have faded quickly.
2.In 2010 the defendant, or its agent, spoke to both the plaintiff and his father through the agency of a private detective. Both made detailed statements in 2010 as to the circumstances of the accident.
3.The absence of relevant financial documents relating to Ginevra was not critical, and the Batten Family Nominees invoices appeared to be complete for the material period.
4.The alterations to and deterioration of the yards is insignificant. The yards are still there in a mildly-repaired state and there is no real prejudice on this aspect.
5. The plaintiff advised Ginevra’s manager, Mr Milano, that he had injured his knee a day or two following the incident, and updated Mr Milano about the state of his knee when its condition deteriorated. Mr Monti submitted that s 23A(d), which refers to the duration of the disability arising from the accident, involved an inquiry, at least in part, about the seriousness of the injury. The more long term the disability the more it weighed in the plaintiff’s favour. Here the injury is lifelong.
Mr Moulds QC for the defendant submitted that the plaintiff’s explanation for the delay and its length are productive of an unfair trial. Merely because the plaintiff is of stoical disposition and battles on in the face of injury ought not excuse him for his inaction and there is no other adequate explanation. The plaintiff knew by 2006 or thereabouts that his knee was arthritic, and he has asserted that it has given him constant pain since 2002. In these circumstances it was argued that the explanation for not seeking legal advice until 2010 is inadequate. Whilst the plaintiff’s version is straightforward, and the yards are in similar if not identical condition, the loss of Dr Smith’s memory is a real prejudice to the defendant caused by the delay. The plaintiff’s analysis of the prejudice commencing at a time just before the expiry of the limitation period is contrary to principle.
Mr Moulds contended that the defendant was also prejudiced by the potential ill health or failing memory of Mr Graham Batten, the plaintiff’s father. As the argument developed he pressed this aspect only faintly. He turned to the absence of what he contended was critical documentation that evidenced the relationship between Batten Family Nominees and Ginevra. This, he contended, went to the issue of whether the plaintiff was a worker or an independent contractor – a critical issue in the case. Mr Moulds, very fairly, did not seek to visit the sins of the plaintiff’s solicitors upon him and reminded me of the words of Starke J in Anisiena v H. Crane Haulage Pty Ltd[9], where his Honour declined to impute to the plaintiff the dilatory conduct of his solicitors. I was reminded of the general prejudice that attached to the delay and Mr Moulds submitted that the ultimate question was whether, in all the circumstances, the defendant could achieve a fair trial. Mr Moulds submitted he could not.
[9][1974] VR 670 (‘Anisienia’).
Analysis
The gravamen of the defendant’s submissions is that, as a consequence of the effluxion of time, the defendant cannot get a fair trial. The prejudice that will be suffered by the defendant (both actual and presumed) is such that the defendant cannot properly test the plaintiff’s account of events or put forward its own account of events. Both the defendant and the plaintiff directed their submissions to the matters raised by s 23A(3) of the LAA, and it is convenient to consider them in their statutory order.
Section 23A(3)
All the circumstances of the case
These circumstances include the mechanism of injury. In my view, the plaintiff’s description of the incident is quite straightforward. A steer was inadequately confined in a holding pen, charged a gate, thus causing the gate to contact the plaintiff’s knee. The plaintiff’s case is primarily about the adequacy or otherwise of the yards to confine large and unpredictable animals such as beef cattle. It is an important consideration, in my view, that these cattle yards still exist in largely similar condition to their 2002 state.
Section 23A(3)(a). The length and reasons for the delay
The impugned incident occurred in February 2002. The plaintiff consulted solicitors eight years after this. By this stage he had had three arthroscopies and a high tibial osteotomy. He was in a wheelchair for several months following the osteotomy procedure. I have set out my impressions of the plaintiff in paragraph [23] of these reasons. I repeat that I consider the plaintiff to be totally honest and generally reliable. I do not consider him to be a sophisticated man. He is a stoical farmer who was educated to Year 10 and then as a diesel mechanic. I accept without reservation his evidence that he was not aware of any Common Law rights until early 2010 when he consulted solicitors. I note that in the letter of 1 March 2010 Slater & Gordon, acting on the plaintiff’s instructions, advised:
…given that you were unaware of your rights to pursue such a claim until now, and given the full extent of your injury was not known until….last year, it is arguable that you may be able to invoke an exception to the 6 year rule.
I also accept that the knee injury sustained by the plaintiff became progressively more serious as time went by. By 2006, however, the plaintiff had undergone his third arthroscopy and I consider that his expectation of a good recovery by that stage had mutated to a hope or aspiration. The plaintiff also accepted in cross-examination that Mr Falkenberg told him, after his third arthroscopy, that his knee was arthritic.
There is force in the defendant’s submission that by 2006 or 2007 (that is, within the limitation period) that the plaintiff must have known that his knee was seriously damaged, and yet he still did nothing. Against this, he had no knowledge of his entitlement at Common Law. By 2007, he was living alone with his young children, still working after a short recovery from his 2006 arthroscope, and hoping for the best. In my view, a distinction can be drawn between the relatively solitary life of a farmer and, for instance, a factory worker. In the latter case, a worker who is injured will usually be required to fill out an incident report; there may well be a union representative on site or readily contactable; the union will likely have solicitors well versed in the intricacies of the ACA and well-armed with claim forms. In short, the factory worker will often have access to information about his rights and access to momentum in pursuing them. In this case Mr Batten had no ready access to this information or the momentum provided by formal support.
I consider it likely that the plaintiff did not appreciate the full import of his knee injury until after Mr Trivett explained to him the full ramifications of the proposed high tibial osteotomy, including months in a wheelchair. This occurred in September 2009. Within a couple of weeks I accept that he contacted Mr Milano seeking some form of compensation for lost wages and, after the surgery (conducted in December 2009), he spoke in February 2010 to his family law solicitors, Stewart and Noble, about compensation for his knee injury. At this stage the limitation period had expired by two years. He was promptly referred to Slater & Gordon, instructed them to act on his behalf in late-February 2010 and then, over the next few months, was proactive in enquiring of them as to the progress of his claims, particularly of this claim for weekly payments.
In discussion, I was critical of the plaintiff’s solicitors for approaching his various claims in a graduated sequence. Weekly payments and medical expenses were claimed on 10 March 2010, the claim for impairment benefits was made in July 2011 and then only after the weekly payments/medical expenses claim had been accepted. The lodgement of the Serious Injury application occurred on 16 May 2012 – more than two years after the plaintiff instructed his solicitors to act on his behalf. In circumstances where the plaintiff was out of time when he instructed solicitors to act, this further delay is hard to understand. As I have observed Senior Counsel for the defendant very fairly did not invite me to hold this further delay against the plaintiff and reminded me of Starke J’s statement in Anisiena:
…I reject the contention that the knowledge or conduct of the plaintiff’s solicitors are to be imputed to the plaintiff.[10]
Like this case, Anisiena was concerned with an application for extension of time under s 23A of the Act, albeit in its 1974 form.
[10]Anisiena, 675.
In my view, the delay and the reasons for it can largely be explained by the plaintiff’s stoic personality, his limited sophistication which included ignorance of his rights, and the developing seriousness of his injury. Put shortly, I do not consider that the plaintiff made a deliberate decision not to issue proceedings. He drifted along, hoping for the best, and attending to more pressing problems. By the time his knee problem became pressing he was well out of time.
Section 23A(3)(b). Prejudice to the defendant
The defendant contended that there were two main areas of prejudice to its position: Dr Smith’s memory loss and the loss of documentation relevant to the issue of whether the plaintiff was a worker within the meaning of the Act, or an independent contractor. The defendant also pursued an argument that Mr Graham Batten (the plaintiff’s father) may also be a missing witness or one with a defective or non-existent memory.
(a) Dr Smith’s memory
It is clear that Dr Smith was in near proximity when the impugned event occurred. It is also clear that he no longer has any memory of this event. The defendant submitted that it has lost the opportunity to rely upon an eyewitness account of events and thus potentially a contradictor to the plaintiff’s account and/or a potential vehicle for an allegation of contributory negligence.
In cross-examination, Dr Smith accepted that he visited very many cattle yards whilst working in the Wangaratta region and that it was likely that he did not retain a memory of this incident for very long, at any event. Mr Monti contended in submission that this operated to diminish any prejudice sustained by the defendant. This submission is contrary to principle. It is well established that what must be examined is prejudice from the time the cause of action occurred to the time of trial; what must not be examined is prejudice from some notional date just short of the expiry of the limitation period to the time of trial.[11]
In my view, it cannot be gainsaid that the loss of a potential witness amounts to a prejudice to the defendant. It is a matter that I must consider when conducting the synthesising (or balancing) exercise required by s 23A. In considering the weight I attach to this prejudice, I remind myself that the defendant has not positively lost a supportive witness – he may have lost one depending upon what the now lost memory once was – which of course we will never know. At its highest, the defendant has lost the chance to call a favourable witness.
The other matter that I consider significant in determining the weight to be given to this prejudice is the nature of this case. The relevant incident is straightforward: steer charges gate – gate strikes man. In my view, the critical issue on liability is not so much the actions of the plaintiff, or the actions of the steer, but the adequacy of the cattle yards; specifically the adequacy or security of the gate to the holding pen, including its fastening method. The yards remain in a relatively unmodified condition. Their original condition can be comfortably established through inspection augmented by evidence. If I am correct in this analysis, whilst the absence of Dr Smith’s memory is a prejudice to the defendant that I must take into account, I do not consider that his absence destroys the defendant’s case or, by itself, is productive of an unfair trial.
[11]See Brisbane South Regional Health Authority v Taylor (1996) ALR 1, 5.
(b) Absence of Mr Graham Batten
Mr Moulds made something of Mr Batten’s age (74 years), suggesting that as he did not give evidence in this s 23A proceeding I ought infer he is in some way infirm or unwell and therefore unavailable, and thus the defendant suffers further prejudice. I disagree with this analysis. There is no evidence that Mr Batten is unwell. His age (at least from my perspective) does not seem particularly venerable, and the only evidence about him in the matter was that he still runs his own farm and also does the bookwork for the Batten partnership. I do not consider there is any specific prejudice from the delay insofar as it relates to Mr Graham Batten.
(c) Absence of documentation
The status of the plaintiff is critical to his case. As I have said, if he cannot prove that he was a ‘worker’ within the meaning of the ACA his case will fail. This issue was the only disputed component of the Serious Injury proceeding. The defendant, despite having that issue determined against it, seeks to litigate it again, which it is entitled to do (see ACA s 134AB(19A)). The defendant contends that it suffers prejudice in the trial by the incomplete nature of the documentation available that evidences the relationship between the parties.
In my view, there is very little substance to this complaint. Whilst it is correct that there appear to be some missing invoices that were sent out by the Batten partnership to other entities, the invoices sent to Ginevra Nominees from May 2001 until May 2002 appear to me to be more or less complete. The defendant’s affidavit of documents reveals that much of the Batten partnership records survived over the last 14 years. I will not set out every item, but for the relevant period it includes Batten Family Nominees balance sheets, journals, stocktakes, general ledgers and payables reconciliations. More importantly, all the significant parties to the relationship in 2002 survive. As I have observed, Wayne Batten and his father survive, as does Eric Milano who, it is accepted, effectively controlled Ginevra for his parents-in-law. In my view, the only real prejudice to the defendant that attaches to the ‘worker’ aspect of the case is the general prejudice that is always present in cases where delay is present.
(d) General prejudice
I accept that the delay will cause the defendant some general prima facie prejudice. Recollections fade, evidence is lost. The impact of this ought not be overstated however. Leaving the specific prejudice that I have dealt with to one side there is not much left to this case. The chance of the plaintiff, his father, or Mr Milano answering questions with ‘I can’t remember’ is obviously greater, but there is no suggestion that the memories of these witnesses have vanished or are grossly impaired, as there was with Dr Smith.
Section 23A(3)(c). Steps taken by the defendant to make available relevant information to the plaintiff
This subsection did not attract much attention in evidence or submissions.
Section 23A(3)(d). The duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action
The parties took subtly differing approaches to the object of this subsection. Mr Monti, for the plaintiff, submitted the ‘duration of any disability’ was directed, amongst other things, to the duration of the disability arising from the tortious event. Thus the subsection contemplated that the Court consider an aspect of the seriousness of the injury. Mr Moulds contended that the subsection was aimed at ensuring that any disability that may impact upon a plaintiff’s capacity to act appropriately did not prejudice the plaintiff in prosecuting this sort of application. Mr Moulds referred me to other parts of the LAA (s 27L(3)(d), s 3(2)) and contended that had Parliament intended that s 23A(3)(d) been aimed at a specific consideration of the seriousness of an injury caused by the impugned tortious event, it would have said so in much less Delphic terms. I agree with this, although I doubt that Mr Monti actually contended otherwise. In my view s 23A(3)(d) uses plain, unambiguous language to require a court considering an application for an extension of time to consider whether a plaintiff laboured under any disability while time was running, and which impacted the plaintiff’s capacity to act in a timely manner. In this case, there was nothing particularly that impacted upon the plaintiff in this way. As I have observed his injury was a developing one, which only became genuinely disabling in 2009, when he was out of time in any event.
Section 23A(3)(e). “…the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant…might be capable of giving rise to an action for damages.’
I have dealt with this in paragraphs [34] - [38] of these reasons. I am completely satisfied that the plaintiff was ignorant of his rights at Common Law until early 2010. Thereafter, I consider he acted reasonably and proactively in pursuing his claim. I am not prepared to impute to him the inertia exhibited by his solicitors.
Section 23A(3). ‘…the steps, if any, taken by the plaintiff to obtain medical, legal and other expert advice and the nature of any such advice he may have received.’
It is clear that the plaintiff obtained throughout the limitations period a good deal of medical advice as his injured knee deteriorated. I am satisfied that after the third arthroscope, the prospect of a high tibial osteotomy had been mooted by Mr Falkenberg in the same consultation in which he advised the plaintiff’s knee was arthritic. I doubt that the plaintiff comprehended the full orthopaedic implications of this procedure however until he consulted Mr Trivett in 2009. It seems that the plaintiff consulted solicitors only after the osteotomy had been performed and while he was confined to a wheelchair.
Conclusion
I have determined to grant this application. It is impossible to apply any scientific weight to the competing factors that impact upon this consideration and there is no objective solution. I bear steadily in mind that the plaintiff bears the onus of establishing that it is just and reasonable to order an extension of the limitation period. In synthesising the competing considerations, I am particularly influenced by the following:
· The plaintiff is an unworldly man who had no appreciation of his Common Law rights until two years after the expiry of the relevant time limit.
· The plaintiff is seriously injured. Thus far he has undergone three arthroscopies, a high tibial osteotomy and a total knee replacement. He is likely to undergo further surgery in the future.
· The prejudice to the defendant occasioned by the loss of Dr Smith’s memory is the loss of the chance of a supportive witness. The nature of the accident means, in my view, that any lost evidence would, on balance, not have been central to the cause of action which focussed around the gate to the holding pen and the security of its fastening. The yards still exist in slightly modified form and they, together with the evidence of post-2002 modification, will be the best evidence of this.
· The plaintiff has satisfied me that there is no identifiable prejudice attached to the asserted loss of farm records, or the asserted absence of Mr Graham Batten.
· There will be general or prima facie prejudice to the defendant who would otherwise have the benefit of the limitation period. There may also be some prejudice to the defendant from fading recollections, although, as I have said, that prejudice is ameliorated by the fact that in my view this case is more about the yards themselves than what any witness may have seen..
I have reached the conclusion only after very anxious consideration. I accept that another mind synthesising the same factors may well have reached a different conclusion.
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