Baynton v Tregurtha t/as Statewide Mowing and Landscaping

[2000] TASSC 56

[2000] TASSC 56

CITATION:    Baynton v Tregurtha t/as Statewide Mowing and Landscaping[2000] TASSC 56

PARTIES:  BAYNTON, Neville Ernest
  v
  TREGURTHA, David J t/as

STATEWIDE MOWING & LANDSCAPING

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M248/1998
DELIVERED ON:  31 May 2000
DELIVERED AT:  Hobart
HEARING DATES:  19 April, 23 May 2000
JUDGMENT OF:  The Master

CATCHWORDS:

Limitation of Actions - Extension of time - Reason for delay - Non-specific prejudice - Policy considerations.
Woolley v Australian Newsprint Mills Limited 85/1997; Butt v Comalco Aluminium (Bell Bay) Ltd B9/1996; Sophron v The Nominal Defendant (1957) 96 CLR 469; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, referred to.
Aust Dig Limitation of Actions [55]

REPRESENTATION:

Counsel:
           Applicant:  B C Hilliard
           Respondent:  J L Dewar
Solicitors:
           Applicant:  Watling Roche Lawyers
           Respondent:  Crisp Hudson & Mann

Judgment Number:  [2000] TASSC 56
Number of Paragraphs:  12

Serial No 56/2000
File No M248/1998

NEVILLE ERNEST BAYNTON v DAVID J TREGURTHA
t/as STATEWIDE MOWING AND LANDSCAPING

REASONS FOR JUDGMENT  THE MASTER

31 May 2000

1. On 24 September 1998, the applicant issued a writ against his former employer claiming damages for personal injuries sustained in an accident at work on 21 October 1992.  By application filed the same day, the applicant has applied for an extension of time pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s135 and the Limitation Act 1974, s5(3) for the commencement of proceedings. The discretion under both Acts (even if the latter applies) is to be exercised in the same way, namely in accordance with the justice of the case. Woolley v Australian Newsprint Mills Limited 85/1997; Butt v Comalco Aluminium (Bell Bay) Ltd B9/1996.

1. The applicant commenced employment with the respondent in 1992 as a ride-on lawn mower operator.  On 21 October 1992, he says that he was welding mower blades to a mower which was suspended by a chain and hook.  He says that at the same time the respondent, his employer, was cleaning grass from the suspended mower.  It is alleged that the mower fell, injuring both the applicant and the respondent.  Counsel for the respondent did not contend that the applicant did not have an arguable case against the respondent for breach of duty of care.  The applicant's case is apparently viable.

1. The applicant, as a result of the incident, alleges significant injury.  He says that his head was cut requiring sutures; he had blurred vision; headaches; pain and stiffness in his neck, later extending to his lower back and a soft tissue injury to his right wrist. 

1. The respondent did not provide workers compensation payments and so within a couple of months of the incident, the applicant saw a solicitor. He claims to have given the solicitor a detailed description of the accident and the solicitor arranged for some medical reports to be obtained and for the commencement of proceedings pursuant to the Act. The applicant says that the lawyer did not discuss limitation periods with him, nor mention anything about common law damages. The applicant gave evidence, which I accept, that he did not know about limitation periods and believed that the whole of his potential entitlements would be dealt with in the course of the workers compensation proceedings. In particular, the applicant's unchallenged evidence was that at one conference in the course of the workers compensation proceedings, "a large lump sum" payment was mentioned.

1. The workers compensation proceedings continued without resolution.  In May 1993, the applicant took up casual employment with a new employer.  In August 1993, that employment became full time.  In February 1994, he suffered severe injuries in the course of his new employment in respect of which he received weekly payments under the workers compensation legislation, but did not receive reimbursement for all his medical expenses.  He returned to his solicitor to discuss this matter, but shortly after the solicitor with whom he had been dealing left the firm.  He was not happy with the services of the solicitor who took over his file and so, on the advice of a treating medical practitioner, approached another legal practitioner for advice and assistance.  A legal aid application form was completed and legal aid granted, subject to the applicant making a contribution of $700.  The applicant said that he did not have $700 and so took no further legal advice.

1. Without further legal advice or assistance, he settled his claim in relation to the second accident in late 1994 for $56,000 and gave evidence that he had to apply about $20,000 of this sum immediately to pay medical debts.  He telephoned a legal help line service and was advised that in view of the payment he was unlikely to remain eligible for legal aid.  He decided that having only $36,000 to pay future medical expenses and provide himself with an income, he would not use any of his resources on legal services.  Accordingly, he did nothing further about the accident of 21 October 1992 until June 1998, when he saw a television advertisement promoting his present solicitors as providing legal services on a "no win ¾no bill" basis.  His new solicitors obtained the file from the former solicitors and noted that no writ had issued for common law damages.  As indicated earlier, the writ and application for an extension of time issued in September 1998.  The writ was presumably served on the respondent within a few months, an appearance having been filed on 11 December 1998.  Thereafter, the application for an extension of time was not pursued quickly.  The first affidavit by the applicant in support of the application was not sworn until 30 July 1999 and not filed until 12 November 1999.  Although the respondent complained about the applicant's delay in pursuing his extension of time application, I attach no weight to this matter.  It is the delay in the commencement of the action which is relevant.

1. I consider much of the delay to be the fault of the applicant.  He did not seek legal advice or assistance for about four years between 1994 and June 1998.  He was aware that he was possibly entitled to a large lump sum payment in respect of the October 1992 injury and had received a lump sum payment in relation to the later injury.  He decided to allocate the whole of the money he had to ongoing living and medical expenses, rather than to spend a part of it obtaining advice as to the risks and costs of pursuing a claim for a lump sum payment and receiving advice as to the amount he might recover.  Had he obtained such advice, he could have made an informed decision within the limitation period as to whether some of the funds which he had should be assigned to the pursuit of a legal action.  The applicant's decision, however, not to divert any of his limited funds on other than life's necessities is understandable.  He had no employment.  He had been told by an insurance company representative at the time the $56,000 settlement for the second accident was negotiated, that the payment would result in him being precluded from receiving Centrelink payments for about 12 months.

1. Counsel for the respondent claimed no specific prejudice, but referred to the well-known observations of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551 and following. It was submitted that there is a deterioration in the quality of justice where delay occurs, even where no specific prejudice can be identified. In this case, in considering the general prejudice, I note that the respondent was present at the time of the alleged accident. I note that a report from neuro-surgeon, Mr A W M Hunn, dated 17 February 1994, has been provided to the respondent's solicitors (as an annexure to one of the applicant's affidavits) which contains detailed information as to the nature and extent of the applicant's injuries arising from the 21 October 1992 incident, up until the time of the second injury. The report includes the results of a lumbar MRI scan taken within a couple of weeks of the first injury, namely on 10 November 1992. I note also that proceedings, albeit proceedings under the Act, were commenced against the respondent shortly after the injury and so the respondent had reason to give prompt attention to all aspects of the matter, including, having regard to the circumstances of the accident, the possibility that a common law damages claim might be made.

1. In Brisbane South Regional Health Authority v Taylor (supra), McHugh J, at 552, said:

The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even 'cruel', to a respondent to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period."

1. In taking into account these factors, I keep in mind that it is for the applicant to persuade me that in all the circumstances it is just and reasonable to grant the extension sought.  Sophron v The Nominal Defendant (1957) 96 CLR 469.

1. In this case, although the delay between 1994 and 1998 is due to the fault of the applicant, the financial reasons for it are understandable.  In taking into account the rationales for the enactment of limitation periods, I consider the most important in this case to be the actual or potential deterioration in the quality of justice which delay causes.  In this case, no specific prejudice is alleged.  The general prejudice in the present circumstances is reduced because the respondent was present at the incident giving rise to the claim and because medical information obtained shortly after the incident has been made available to the respondent.  I am satisfied that in all the circumstances the justice of the case lies with granting the extension sought.

1. The time within which the applicant may commence an action against the respondent for damages for personal injuries suffered in the incident occurring on or about 21 October 1992, is extended to the date of the filing of the writ, namely 24 September 1998.