Bluett v Comalco Aluminium Ltd
[1999] TASSC 125
•26 November 1999
[1999] TASSC 125
CITATION: Bluett v Comalco Aluminium Ltd [1999] TASSC 125
PARTIES: BLUETT, Derek William
v
COMALCO ALUMINIUM LTD
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 204/1998
DELIVERED ON: 26 November 1999
DELIVERED AT: Launceston
HEARING DATES: 11, 24 November 1999
JUDGMENT OF: The Master
CATCHWORDS:
Limitation of Actions - Extension of time - Prejudice - Arguable case - Explanation for delay - Whether conclusive - Exercise of discretion.
Workers Rehabilitation and Compensation Act1988 (Tas), s135.
Woolley v Australian Newsprint Mills Ltd 85/1997; Butt v Comalco Aluminium (Bell Bay) Ltd B9/1996; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Cowie v State Electricity Commission (Vict) [1964] VR 788; George v State of Bailey and Ors (1998) Aust Torts Reports 81-455; Knight v Smith [1975] Tas SR 83; Soul v Soul 23/1982; Mayne v Kemp 134/1998, considered.
Aust Dig Limitation of Actions [55]
REPRESENTATION:
Counsel:
Applicant: W M Griffiths
Respondent: F V Moore
Solicitors:
Appellant: Bishops
Respondent: Archer Bushby
Judgment Number: [1999] TASSC 125
Number of Paragraphs: 27
Serial No 125/1999
File No 204/1998
DEREK WILLIAM BLUETT v COMALCO ALUMINIUM
REASONS FOR JUDGMENT THE MASTER
25 November 1999
The limitation statutes
On 19 August 1998, a writ was filed on behalf of the applicant claiming damages for personal injuries suffered in February 1994 arising out of the negligence of the respondent. On the same date, an application for an extension of time was filed. I was told that the application was made pursuant to the Workers Rehabilitation and Compensation Act 1988, s135 and the Limitation Act 1974, s5(3). The Workers Rehabilitation and Compensation Act clearly applies, as the applicant had been receiving compensation payments. Whether or not the Limitation Act is also applicable, does not need to be considered as the discretion under each Act is to be exercised in the same way, namely, in accordance with the justice of the case, Woolley v Australian Newsprint Mills Ltd 85/1997; Butt v Comalco Aluminium (Bell Bay) Ltd B9/1996.
The applicant's evidence
In support of the application, affidavits from the applicant, his solicitor and a law clerk, were read into evidence. The applicant was cross-examined on his affidavit. The respondent adduced evidence by tendering two affidavits which had been previously sworn in the proceedings by the applicant and also by having read into evidence an affidavit sworn by its solicitor.
The applicant claims that on 9 February 1994, he injured his back whilst performing the duties of his employment with the respondent. The applicant said that he had been working as a Tapper at the time of the injury at the respondent's aluminium plant at Bell Bay. His work included skimming impurities off the top of molten aluminium contained in about 12 crucibles on the factory floor. The applicant said that each crucible was "about four to five feet across". He deposed in his affidavit that the skimmer which he used was "a long heavy metal pole with a spoon like section made from steel fastened to one end". He said that the skimmer was about seven feet long. In his affidavit, he described the skimming procedure in the following terms:
"When skimming the molten aluminium the skimmer is passed across the surface. As the end of the skimmer approaches the edge of the crucible however it is necessary to lift, twist and flick the skimmer so that the impurities collected in the skimmer are flicked through the open doorway of the nearest cell. This required the skimmer to be 'flicked' so as to impart enough momentum to the impurities that they travel the metre or so to reach the open door of the nearest cell.
As the flicking motion was made, I would have hold of the end of the skimmer with my left hand near the very end of the handle, and would impart the flick with the right hand."
The applicant said that his work as a Tapper involved duties in addition to the skimming and during an average shift, he would spend about 1 hour skimming. He described the injury in the following terms in his affidavit:
"Whilst attempting to undertake the flicking motion with the skimmer on the 9th February 1994 I felt a severe pain in my lower back. The pain was too severe to enable me to carry on working. I told George Williams of this and then I returned home and went to bed.
The next morning I attempted to get out of bed but found I had great difficulty moving. I then contacted Dr Jeffrey Smith who saw me straight away and xrays were taken which I understand revealed that there were two cracks in my lower spine. I was told by the doctor to go home immediately and have complete rest and I was given some medication in respect of the pain I was suffering."
The applicant deposed that he was away from work for about four months after the injury before returning on light duties. Upon his return, the pain became more severe and he had a further three months off work before recommencing light duties in November 1994. During these times, he received workers compensation payments. He attended the offices of solicitors, Bishops, in Launceston on 1 March 1995, where he spoke with a law clerk for about 25 minutes, wrongly believing her to be a solicitor. A letter was sent by Bishops to the applicant on 2 March 1995 which said, in part:
"We also confirm that a Common Law claim could be made against your employer if you were working in an unsafe environment. Such a claim should be brought within a three year period. However we note your advice to us that you did not believe that the working conditions were unsafe."
The applicant said of the letter:
"I am unsure whether it came from my conversation with Jessie McKay or the letter of the 2nd March, but my understanding as a result of seeing Jessie McKay and getting the letter was that if I wanted to sue Comalco it would be best for me to do it within three years. Until I saw Mr Cornelius on the 28th May 1998 1 did not realise that there was any great importance to be attached to the three year period.
I do not recall whether it is what I was told by Jessie McKay or whether it is what I read in the letter of the 2nd March, but as a result of seeing Jessie McKay and of reading the letter of the 2nd March I understood that I could sue Comalco if the working environment was unsafe. I was given no information by Jessie McKay as to what that meant, and I was not told that it could relate to the skimming operation and I did not realise that it could relate to the skimming operation until I saw Mr Cornelius on the 28th May 1998.
…Between the 2nd March 1995 and the 28th May 1998 I neither sought nor received any legal advice and nor did I obtain any better understanding or knowledge about workers taking legal action against their employers following an accident. I relied on the advice that I had received from Mrs McKay. Also, I was most concerned about the state of my health and recovering from the injury I had suffered. I believed that having seen a lawyer it was unnecessary for me to take any further steps until my medical treatment has been finalised. I did not know that I had a limited time within which to bring a claim. I also had been led to understand however that I had little chance of making a successful claim."
The applicant said that by late 1997, his back pain had become so severe that he sought advice from a Melbourne doctor. That doctor recommended that a plate be inserted on the applicant's spine and that such surgery should be undertaken within the next 12 months. On 6 January 1998, the applicant ceased his work altogether at Comalco because of the pain. He was also getting "what felt like electric shocks tingling in my feet". On 28 May 1998, he saw solicitor Mr Cornelius at Bishops. He said he saw Mr Cornelius "in relation to fears I then had about surgery", which had been arranged for 9 June 1998. At that time, Mr Cornelius advised him that there was a three year limitation period for the commencement of proceedings which had passed, but that he could apply for an extension of time. The applicant travelled to Victoria and the surgery was undertaken on 9 June 1998. On 22nd June 1998, he telephoned Mr Cornelius, who advised him to consider issuing a writ. The applicant told Mr Cornelius that he would contact him when his health improved. The applicant claimed to have been in severe pain for some time after the surgery and it was not until 4 August 1998 that he again saw Mr Cornelius. He said that he made the appointment "mainly because I was concerned with schedule benefits that were being paid to me and were due to expire at the end of August 1998". It was at that meeting that instructions were given for the issue of the writ. As indicated earlier, the writ and the application for the extension of time were filed on 19 August 1998. The writ and the application were served on the respondent five days later.
The primary considerations
The onus is on the applicant to satisfy the Court that time should be extended. Whether or not an extension should be granted is to be considered in accordance with the justice of the case. Primary considerations are:
(1)whether, and to what extent, the respondent has suffered prejudice by delay, that is to say whether the delay has made the chance of a fair trial unlikely, Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 AT 550;
(2)whether the applicant has an arguable case;
(3)what the explanation for delay was.
The facts in support of the respondent's claim of prejudice
The respondent adduced evidence to support a contention that the granting of an extension of time would cause prejudice. The respondent tendered two affidavits sworn in the proceedings by the applicant dated 6 October 1998 and 20 November 1998. These affidavits had not been read into evidence by the applicant as part of his case in support of the application. The affidavit of 6 October 1998 included the following:
"6 After about three and a half months, of tapping, I began to feel muscle strain in my back. I immediately went and saw my supervisor whose name is Mick Blake. I said to my supervisor that my back was getting sore and that I want to change from doing tapping to another task.
7 Mick Blake stated to me that there was nobody at that stage to replace me because all other available tappers were on leave.
8 This occurred on or about the 8th February 1994 when I noticed that a pipe was not sitting in the crane correctly and therefore I would have to physically try and adjust the pipe so that it was held correctly.
9 Whilst attempting to correct the pipe into the right position of the crane I felt a twist in my lower back which caused me pain.
10 On or about the 11th February 1994, I had completed around thirty pots that day when I was required to do a twisting motion again with skimming the pot, and whilst attempting to do so I felt a severe pain in my lower back similar to where I had felt previous pain a few days prior."
The reference in par10 is to the injury which is the subject of this application, which the applicant now says occurred on 9 February 1994 and not 11 February 1994 as previously believed by him.
In his affidavit of 20 November 1998 the applicant deposed:
"4 Some months before February 1994 I had complained to Mick Blake about being teamed up with George Williams. Mick Blake was the supervisor in charge of the area where I worked and he is also the person referred to in paragraph 7 of my earlier Affidavit.
5 I had found whilst reamed to work with George Williams that he was unable to do his fair share of the heavy manual work.
6 I believe at the time he was aged about 55 years and he suffered from sore feet which required him to take fairly regular rests.
7 After my complaint to Mick Blake I noticed that George Williams was given lighter work to do. I did not see him working in the cranes again until February 1994 when he worked with me again.
8 The work I was undertaking was very heavy manual labour.
9 On a normal shift there would be 42 cells to be tapped and about 12 crucibles filled with molten aluminium.
10 The crucibles were skimmed with a metal spoon about 12 feet long. This is called a skimmer and is manipulated by the tapper so as to remove the dross and flux from the top of the molten aluminium. The manipulation of the skimmer requires a great deal of constant physical effort.
11 The skimmer is not counter balanced and there is no provision to mechanically assist in its operation despite the fact that it is heavy and difficult to operate even before it collects additional weight during the skimming process.
12 It is usual in an eight hour shift that the person performing the crane driving duties and the person performing the tapping duties change over about half way through the shift.
13 On the 11th February 1994 I was completing the first seven day shift that I had had with George Williams since my earlier complaint to Mick Blake. During the course of that week I have done almost all of the heavy manual work required to be undertaken during each eight hour shift."
The applicant's reference to 11 February 1994 is a reference to the date of the injury which the applicant now says was 9 February 1994. In cross-examination, the applicant said that the reference in par10 to the metal spoon being about 12 feet long was made in error and that in fact the metal spoon is on a pole about 7 feet long.
In his affidavit sworn 19 April 1999, which was read into evidence, the solicitor for the respondent deposed that supervisor Mick Blake had died on 2 March 1999. The affidavit also contained evidence of a conversation between the solicitor and Mr Blake on 2 February 1999. The relevant parts of the affidavit are as follows:
"5 In respect of the contents of the applicant's affidavit sworn 6th October 1998 Mr Blake informed me as follows.
(i)He had a good and clear recollection of the applicant and of George Williams, referred to in the affidavits of the applicant, and the manner in which they performed their duties when they were both employed by the respondent.
(ii)Mr Blake had no recollection of the advice and request referred to in paragraph 6 of the applicant's affidavit. If Mr Bluett had come to him on or about 8th February 1994 and told him that he had a sore back, Mr Blake would without question have required Mr Bluett to fill out an accident report. Mr Blake was a member of the development and implementation team which was responsible for implementing the accident report system and he was insistent upon the completion of accident reports, without exception. In the event that anyone had indicated to Mr Blake that he had a sore back, there would, without question, have been an accident report filled out and the person reporting the sore back would have been sent directly to the Company's medical centre.
6 I am instructed that the Company's records of accident reports have been searched and that there is no record of an accident report concerning any complaint by Mr Bluett of a sore back on or about 8th February 1994. Whilst there is an accident report concerning the injury referred to in paragraph 10 of the applicant's affidavit sworn 6th October 1998 (said to have occurred on or about 11th February 1994) I am instructed that there appears to have been no accident report concerning the preceding complaint in respect of the applicant's back, referred to in paragraphs 6, 8 and 9 of his said affidavit (said to have occurred on or about 8th February 1994).
7 I am further instructed that the records of the respondent's medical centre have been searched and that no record exists of the applicant's attendance at the medical centre on or about the 8th February 1994, or at any time around that date. I am instructed that the records of the respondent's medical centre relating to that period have been lost, mislaid or discarded.
8 I was further informed by Mr Blake in respect of the applicant's affidavit sworn 6th October 1998 as follows.
(i)The respondent's records disclose that the applicant was engaged in tapping, from 5th - 9th February 1994 inclusive of those days following which he was absent from work, consistently with his having reported the injury referred to in paragraph 10 of his affidavit as having occurred on 9th February 1994.
(ii)Mr Blake recalled that out of approximately 18 people who were engaged on the applicant's shift on each of those days, there were only 2 who were not available to undertake tapping duties. It was untrue that there was nobody to replace Mr Bluett (as he alleges in paragraph 7 of his affidavit that he was informed) and it was untrue that Mr Blake so informed him. February 1994 was what Mr Blake described as a 'peak leave period' and at that stage there would have been 3 employees away on leave and possibly a further employee away on a rostered leisure day. There were accordingly ample people available to replace Mr Bluett if the need had arisen to relieve him.
9 In respect of the applicant's affidavit sworn 20th November 1998, Mr Blake informed me as follows.
(i)Mr Blake had no recollection of any complaint by Mr Bluett about being teamed up with George Williams. He did not believe any such complaint was made and was unable to see why any such complaint would have been made by Mr Bluett. Mr Blake considered that such a complaint would have been so extraordinary and so unlikely to be true that he would have recalled it if it had ever been made. His belief was that no such complaint had ever been made.
(ii)George Williams performed the full range of his duties as a tapper. His experience of George Williams was that he took pride in his job and in doing all of the work associated with his job, including sharing crane driving and tapping duties, and swapping roles with the person with whom he was working. His experience of George Williams was that it would have been extraordinary for him not to have swapped roles during the shift with the person with whom he was working in crane driving and tapping, on that shift. None of the duties associated with tapping were beyond George Williams' capabilities.
(iii)It was untrue that Mr Bluett was required to undertake more duties than his share whilst George Williams was taking a rest. It was impossible for one member of such a team to take a rest while the other continued working. The nature of the tasks involved meant that, if one was taking a rest, the other was not able to continue working without also resting.
(iv)His observation and experience of George Williams was that Mr Williams was able for so long as he continued to be employed by the respondent to do his fair share of all manual tasks associated with his employment, and that he took pride in doing his fair share of all such tasks."
Finally, in his affidavit, the respondent's solicitor deposed that he interviewed Mr George Williams on 16 April 1999 and that Mr Williams declined to swear an affidavit in the proceedings and said that he did not wish to get involved because "he has such a poor memory of the relevant period of time".
Annexed to the applicant's affidavit of 18 August 1999, which was read into evidence by his counsel, was a statement of claim which the applicant deposed he would deliver to the respondent's solicitors if his application for an extension of time is successful. The proposed statement of claim contains particulars in par10, which reads:
"10The injury, loss and damage referred to in the preceding paragraph were caused or contributed to by breaches of the said agreement and/or by the negligence of the Defendant and/or by breach of statutory duty on the part of the Defendant.
particulars of breach of agreement and/or negligence
and/or breach of statutory duty
The Defendant was negligent, or alternatively was in breach of the said agreement or alternatively was in breach of the said statutory duty in that it:
(a)Required the Plaintiff to undertake an unnatural motion with the Skimmer.
(b)Required the Plaintiff to undertake an unnatural motion with the Skimmer repetitively.
(c)Required the Plaintiff to repetitively undertake a lifting, twisting and flicking motion with the Skimmer when, from the length and weight of the Skimmer, the position from which the Plaintiff had to operate the Skimmer and the repetitive nature of that work, the Defendant knew or ought to have known that the Plaintiff was thereby exposed to an unsafe system of work.
(d)Failed to provide a safe system of work for use by the Plaintiff for the purpose of removing impurities from the surface of the molten aluminium.
(e)Failed to provide a safe system of work for the purposes of removing the impurities from the surface of the molten aluminium.
(f)Failed to instruct or train the Plaintiff properly or at all in the use of the Skimmer so as to minimise the risk of injury to the Plaintiff arising from the use of the Skimmer.
(g)Failed to inform the Plaintiff of the danger inherent in the use of the Skimmer.
(h)Failed to inform the Plaintiff that the Defendant has received advice to the effect that the skimming operation was potentially dangerous to employees undertaking such work.
(i)Failed to ensure that the undertaking of work with the use of the Skimmer was shared with the employee who was teamed with the Defendant during each of the Defendant's shifts.
(j)Required the Plaintiff to undertake a lifting and twisting and flicking motion with the Skimmer when the Plaintiff could have been instructed that the impurities collected by the Skimmer could be deposited on the floor in the vicinity of the container of molten aluminium thereby avoiding the need for that requirement.
(k)Failed to design the system or the requirements of the work which the Plaintiff was required to undertake so as to remove the need for the Plaintiff to undertake repetitive lifting, twisting and flicking with the Skimmer.
(l)Employed the Plaintiff to undertake work with the Skimmer without instructing the Plaintiff as to the dangers arising in connection with the Skimmer and all the precautions to be observed in connection with it, in breach of the provisions of Regulation 180 of the Industrial Safety, Health, and Welfare (Administrative and General) Regulations 1979.
(m)Employed the Plaintiff to undertake work in connection with the Skimmer without providing to the Plaintiff adequate training for the purposes of undertaking such work in contravention of Regulation 180 of the Industrial Safety, Health, and Welfare (Administrative and General) Regulations 1979.
(n)Caused or permitted the Plaintiff to undertake manual handling as defined in Regulation 182 of the Industrial Safety, Health, and Welfare (Administrative and General) Regulations and such manual handling was not undertaken in accordance with the National Standard for Manual Handling published by the National Occupation Health and Safety Commission, in breach of Regulation 182A of the Industrial Safety, Health, and Welfare (Administrative and General) Regulations."
The assessment of the claim of prejudice
The way in which a claim of prejudice is to be assessed is dealt with in detail in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 by McHugh J at 555, where he said:
"Legislatures enact limitation periods because they make judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff's lost right should not be revived than that the defendant should have a spent liability reimposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action."
In Cowie v State Electricity Commission (Vict) [1964] VR 788 at 793, Gowans J said:
"It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice."
Accordingly I will deal with the contention of prejudice by considering whether or not the respondent has placed in evidence sufficient facts to lead me to the view that actual prejudice of a significant kind has occurred so that the defendant cannot now fairly defend itself or that there is a significant chance that it will not be able to do so. In other words, that a fair trial is unlikely. If the evidence and contentions put forward by the respondent satisfy this onus then I need to consider whether the applicant, by evidence or otherwise, has shown that the facts and matters put forward by the respondent will not amount to prejudice of the kind suggested by the respondent.
The complaint about George Williams' ability to share the tapping work and the complaint about the applicant having suffered a sore back the day before the injury, will be material to an assessment by the Court of issues likely to be in dispute. In particular, whether injury to the applicant was foreseeable and whether steps should have been taken to reduce the risk of injury, for example, taking the applicant off tapping duties following his alleged complaint of a sore back on 8 February 1994, or ensuring that he was teamed with a person who was fit and capable of sharing the heavy manual work, are likely to be material in the Court's consideration of at least some of the particulars set out under par10 of the proposed statement of claim. For example, particulars (c) and (i). Counsel for the respondent submitted that the proposed particulars had been carefully drafted to exclude from them any reference to the applicant's prior complaint of a sore back and request to be relieved of tapping duties. In my view the drafting of the particulars, as I have said, would not exclude evidence as to these matters being given at the trial but even if I am wrong about that, subject to any condition or limitation that might be imposed upon the grant of the application, the applicant could deliver further and better particulars to include these allegations.
I accept that Mr Blake, but for his death, would have been likely to have given evidence in relation to Mr Williams' capacity for work. However, the respondent does not suggest that evidence relating to Mr Williams' capabilities could not be obtained from other witnesses. If Mr Williams was in fact fit and suited to the work, the applicant's alleged complaint to supervisor Mr Blake some months earlier, would be irrelevant. If it was important that the heavy manual work be fairly shared and Mr Williams was not suited for such work, and had not been suited for some months prior to the injury, presumably this situation ought to have been known by, and responded to, by the employer. I have no reason to believe that Mr Williams' "poor memory of the relevant period of time" will be prejudicial in any material way to the respondent's case at trial. Accordingly, on the issue of whether or not Mr Williams should have been teamed with the applicant in the performance of the tapping work, I do not regard the evidence put forward by the respondent as being sufficient to lead to the conclusion that the chances of a fair trial are unlikely.
I accept that Mr Blake, but for his death, would have been likely to have given evidence in accordance with par(5)(ii) of the affidavit of the respondent's solicitor, referred to above, namely that he had no recollection of the applicant complaining of a sore back on 8 February and that if such a complaint had been made, he would have ensured that an accident report was completed and the employee sent to the medical centre. It was not contended that evidence of the respondent's procedures for dealing with reports of injuries cannot now be adduced at trial, nor was it contended that evidence of Mr Blake's record of adhering to the employer's policies and practices in that regard cannot now be adduced at the trial. However, the alleged complaint of the sore back on 8 February was, according to the applicant's affidavit of 6 October 1998, coupled with a request to be relieved from tapping duties. The applicant alleged that he was told by Mr Blake that there was nobody available to replace him for tapping duties as the other tappers were on leave. Mr Blake told the respondent's solicitor, however, that of the 18 people who were engaged on the applicant's shift there were only two who were not available to undertake tapping duties. Mr Blake's evidence on this point, had he been available, would have been extremely important to the respondent's defence of the claim. Such evidence, may well have had a stronger impact on the tribunal of fact about the matter than indirect evidence about Mr Blake's adherence to record-keeping procedures and the absence of a record of injury or accident having been made. Mr Blake's evidence on this point may also have assisted the tribunal of fact in making an assessment of the applicant's general credibility which could have been applied to other aspects of the applicant's case. On the issue of the alleged injury report on 8 February 1994 I regard the delay and Mr Blake's intervening death as having resulted in significant prejudice such that the respondent will not now be able to fairly defend itself or at least that there is a significant chance that this is so. The applicant has failed to satisfy me that the prejudice asserted by the respondent is not material.
The respondent's solicitor submitted that if I was to reach the conclusion which I just have I could grant an extension of time subject to a condition that the applicant not rely at the trial upon any assertion that on or around 8 February 1994 he complained to Mr Blake about a sore back and asked to be relieved from tapping duties. I asked him to tell me the precise terms of the condition which was proposed but he said that the drafting of the condition could be left to me. There are some cases in which a conditional extension of time has been granted. For example in George v State of Bailey and Ors (1998) Aust Tort Reports 81-455, Badgery-Parker J allowed an extension of time in respect only of certain causes of action. No case was referred to me in which a condition had been imposed specifically directed to placing a limitation on the particulars of negligence which might be delivered or the evidence which might be given at the trial. It is only in a most exceptional case that I consider it would be appropriate for me to accede to a suggestion of the type put forward by counsel. In considering whether or not to impose the suggested limitation I will have regard to the other considerations which apply to applications of this kind so that I can make an overall assessment as to whether it is just and reasonable to grant the application.
An arguable case
The next issue is whether or not the applicant has an arguable case. The question is unrelated to the likelihood that the applicant will succeed. The question is whether he has demonstrated that evidence exists which would be available to him at the trial and which, if accepted, would establish at the trial that he has a cause of action. George v State of Bailey and Ors. The case must also be viable. The respondent might on the hearing of the application for the extension of time give conclusive evidence of a fact which would demonstrate that the applicant's case is hopeless. An example would be where the applicant has executed a deed of release. Butt v Comalco Aluminium (Bell Bay) Ltd B9/1996. The material placed before the Court contains prima facie evidence of facts which give rise to an arguable case in negligence; breach of contract and breach of statutory duty. The respondent has not put forward evidence of a defence which would render the applicant's case without prospect of success.
It was submitted by the respondent that the applicant's case is speculative. Most cases where there is any factual or legal dispute are speculative at least to some degree. Zeeman J in Butt v Comalco Aluminium (Bell Bay) Ltd referred to speculative cases at 9 in the following context:
"The accepted relevance of the merits of a proposed cause of action on the hearing of applications of this nature should not be elevated into a proposition of law that an applicant must establish a prima facie case. On the other hand the failure to establish a prima facie case may suggest that the proposed action is speculative and therefore affords strong grounds for refusing the application …"
In this case the applicant has supplied evidence of sufficient facts to establish a cause of action. It is not a case where the applicant has failed to supply such facts but contends that in the course of proceedings he may find evidence of facts to perfect his cause of action. A prima facie case having been established the claim cannot be said to be "speculative" in any relevant sense.
The explanation for delay
As to the explanation for delay, the applicant referred to the letter of 2 March 1999 which he received from his solicitors. The letter contained no detailed advice about limitation periods, but said that a claim "should be brought within a three year period". The advice was far from complete and clear, however, it was sufficient to put the applicant on notice that if he intended making a claim, he should bring it within three years. The applicant may not have known whether or not it was mandatory to bring the claim within that period; when the period ran from, or whether an extension could be granted and, if so, upon what considerations, but the information he was given was sufficient to put him on notice that he should speak with his solicitor within a three year period which he ought to have appreciated as at least possibly commencing on the date of injury, if he contemplated making a claim.
The applicant gave evidence that after reading the letter of 2 March 1995, which referred to a common law claim being made if he was "working in an unsafe environment" he believed it dealt with matters such as "something falling from the ceiling" and injuring him. The letter of 2 March 1995 also made reference in relation to the bringing of a common law claim to "working conditions". As set out earlier, the applicant states that he was undertaking heavy manual work; that work loads should be shared; that he had reported a sore back to his supervisor and had asked to be relieved from tapping duties shortly prior to his injury and that he was teamed with a person about whom he had previously complained and whom he thought was unfit to share the work load. Having received the advice of 2 March 1995 the applicant's lack of interest in considering discussing, or further discussing, with his legal advisers the possibility of making a claim based upon his working conditions does not sit comfortably with his affidavits sworn 6 October 1998 and 20 November 1998 in which, apparently for the first time, his assertions about requesting deployment because of a sore back and complaining about Mr Williams' capabilities are made. There is no suggestion that these matters were brought to the attention of the law clerk at Bishops shortly prior to the letter of 2 March 1995. Her notes of that meeting are attached to her affidavit sworn 22 January 1999 and contain no reference to such matters. The applicant has not suggested that he raised these complaints about his working conditions with the law clerk.
The applicant deposed that his back condition deteriorated and that by January 1998, his symptoms were severe. He knew that his workers compensation entitlements would end and it was in this environment that he saw his solicitor in May 1998 and again in August 1998. By early January 1998, he had ceased work at Comalco, even on light duties, and suffered from severe back pain; testicular pain; and had a sensation of electric shocks tingling in his feet. The applicant gave no satisfactory explanation as to why he did not see solicitors about the possibility of a common law claim in early 1998. He said in his affidavit that he went to see the solicitors on 28 May 1998, in relation to "fears I then had about surgery". I have reservations about the completeness of this assertion. What he expected the solicitor to do in response to his fear is undisclosed. Perhaps he wanted his solicitor to assist him in making a will or making some financial arrangements or even for advice perhaps about signing a consent for the operation. Absent such evidence and having regard to the fact that he received litigation advice at that meeting, in my view it is likely that he went to see his solicitor on 28 May 1998, at least in part, to obtain legal advice concerning any rights or entitlements he may have as a result of his injury. He could have seen the solicitor in early 1998 when he knew that surgery was required; had ceased work and was suffering significant pain and disturbing symptoms in his feet.
Even if I were to accept the applicant's explanation that his ignorance of his rights was his reason for the delay that would not necessarily be a satisfactory explanation for the delay. Soul v Soul 23/1982. In this case, if the applicant was ignorant as to his rights prior to the expiration of the limitation period that ignorance is entirely or substantially his fault. I am not prepared to conclude otherwise when the applicant has not put before the Court details of what matters he raised with the law clerk at Bishops in 1995. The fact is that despite a reference in the letter of 2 March 1995 to "working conditions" and the advice that a claim "should" be commenced within three years it was not apparently until May 1998 that these matters were discussed with his solicitors. "The responsibility of a party to the prosecution of his case does not simply cease with the giving of a general vague account to a solicitor". Mayne v Kemp 134/1998.
Conclusion
The lack of a satisfactory explanation for delay, particularly after the initial limitation period has expired, is important. It is particularly important where, as appears in this case, the applicant, albeit possibly based on inadequate advice, has initially decided not to pursue a claim, but then changes his mind after the limitation period has expired. The lack of a satisfactory explanation, although highly relevant, is not necessarily determinative. Knight v Smith [1975] Tas SR 83. The issue is whether or not, having regard to the legislation imposing the limitation period and its policy and having regard to the circumstances of the case, it is just and reasonable to grant the extension. Having regard to the findings I have made in relation to the issue of prejudice and also bearing in mind that delay will occasion general prejudice anyway, I am not prepared to grant the extension of time requested, even on the condition as to the restriction of issues suggested by the applicant's counsel. In those circumstances it is unnecessary for me to consider other specific assertions of prejudice made by the respondent's counsel. The actual prejudice referred to earlier; the general prejudice which arises from delay; the lack of a satisfactory explanation for the delay and the policy of the legislation combine to result in my decision not to exercise the discretion in favour of the applicant.
The application is dismissed.
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