Brewer v Blasdom P/L

[1997] QSC 28

IN THE SUPREME COURT

OF QUEENSLAND
  Appln. No. 8539 of 1996

Brisbane

Before Mr Justice Ambrose

[Brewer v. Blasdom P/L  & Anor]

BETWEEN:
  LESTER ROBERT BREWER
  Plaintiff
AND:
  BLASDOM PTY LTD
  First Defendant

AND:
  EYERS BROS PTY LTD
  Second Defendant

CATCHWORDS:                  TIME LIMITATION - application for extension of time for commencement of proceedings - s.31(2)(a) & (b) Limitations of Actions Act 1974 - onus on plaintiff to prove that delay would not cause significant prejudice to the second defendant - Brisbane South Regional Health Authority v. Taylor (1996) 70 ALJR 866.

Counsel:Mr S. Kein for the plaintiff

Mr R. Alldridge for the defendant

Solicitors:Reidy & Tonkin for the plaintiff

McInnes Wilson & Jenson for the second defendant

Hearing Date:              4 February 1997

REASONS FOR JUDGMENT - B.W. AMBROSE J.

Judgment delivered 06/03/1997

This is an application for an extension of time for commencement of proceedings by the plaintiff against the second defendant in respect of an alleged injury which the plaintiff suffered as a consequence of its negligence on 11 November 1987.  That injury was suffered in the course of the plaintiff's employment by the second defendant as a truck driver.
           On 23 March 1993 while employed as a truck driver by the first defendant the plaintiff suffered a second injury.  He sought legal advice and as a consequence of information and expert examination then obtained learnt that arguably he had suffered a permanent disability as the result of his first injury which had been exacerbated by the second one.
           The plaintiff's legal representatives took full statements, made requisite inquiries etc and obtained counsel's advice.  On 15 August 1994 a writ of summons No. 1236 of 1994 was issued against each of the defendants claiming damages for negligence, breach of contract and breach of statutory duty.  The writ was eventually served on the Workers' Compensation Board as required under the relevant legislation and inquiries were made at the Board requesting information concerning a claim for compensation made by the plaintiff when he was first injured on 11 November 1987.
           Without examining in detail the material filed in support of the plaintiff's application it seems clear that within a day or so of his first injury the plaintiff had submitted a claim for worker's compensation setting forth in detail how, when and where he was injured and the medical treatment that he received for it.  The injury was of a quite unusual kind. It is the plaintiff's case that in the course of his employment he was loading a truck with demolition material with the assistance of a crane at a time when there was a storm in the vicinity of the work place. The crane was struck by lightning and as a consequence of its proximity to his work place he suffered a shock throwing him to the ground causing some injury.  He immediately went to a doctor and received treatment for the injury.  Remarkably he was off work for a relatively short time and believed that he had recovered completely from this injury.  Apparently he forgot all about it and it was not until he was injured a second time, more than 5 years later, that he learnt that problems that then developed were arguably attributable to some extent to his first injury consequent upon the lightning strike.
           The Workers' Compensation Board of course is the organisation required to indemnify each defendant against any liability to the plaintiff in respect of injury as the result of its negligence in the course of his employment.
           Not surprisingly, when the plaintiff learnt that the crippling condition which he developed after his second injury was arguably attributable to a significant degree to that which he suffered without being aware of it at the time of his first injury, it was decided to seek to join both defendants in the one action.  The obvious object of this exercise was to avoid the Workers' Compensation Board when appearing for the first defendant, contending that the disability suffered by the plaintiff after the second accident was largely attributable to the injury he suffered in the first one and that for this the first defendant is not liable.
           If the plaintiff does not succeed in obtaining an extension of time within which to commence proceedings against the second defendant, no doubt he will be forced to contend if the evidence supports such a contention that had it not been for the second accident in March 1993 the underlying potential for serious disability arising from the first accident more than 5 years earlier may not have been realised.  Under s.31(2)(a) and (b) of the Limitation of Actions Act 1974 the plaintiff must show that a material fact of a decisive nature to his cause of action first came to his knowledge within 12 months of making the application for extension. He must also of course show that evidence may be called to establish his right.
           On the facts of the present case, the plaintiff himself may give evidence to establish his cause of action.  Whether he can show that the second defendant at the material time was in breach of its obligation as employer in failing to instruct him not to work loading his truck in the vicinity of a crane during a thunder storm producing lightning is an interesting point. While the plaintiff may have some little difficulty on the facts to which he deposes in his affidavit material in establishing a breach of duty I will assume that he has a sufficiently arguable case to justify granting an extension of time should he otherwise enliven a discretion to extend.
           For the second defendant however it is contended that in the circumstances of this case it would be prejudiced to such a degree in preparation and presentation of its defence to the plaintiff's claim that the application to extend ought be refused.
           There have been many cases reported over the years where inevitable prejudice to a defendant caused by long delay has been balanced against the perceived injustice to a plaintiff who without fault on his part has failed to institute proceedings against the person who has negligently caused him damage or injury because he was unaware of that fact
           The defendant relies strongly upon observations made in the High Court of Australia in Brisbane South Regional Health Authority v. Taylor (1996) 70 ALJR 866.
           The facts of that case while differing from those in this one present features found in the present case.  The Queensland Court of Appeal had overruled the exercise of discretion of a trial judge who on his evaluation of the material before him had concluded that there would be undue prejudice to a defendant should a period of limitation be extended.  The defendant in that case was responsible for the alleged negligence of a doctor who had made notes of conversations with the plaintiff which differed from the plaintiff's recollection of those conversations and advice at material times. That doctor had left the employ of the defendant and was overseas at the time of the application.
           On the material before me it emerges that two persons at or near the scene of the plaintiff's alleged injury in 1987 have since died.
           Contemporaneous records which may have been kept concerning events and so relevant to test or challenge the plaintiff's recollection of events leading to his injury cannot be located.
           In particular it has not been possible to identify or locate the crane allegedly involved in the plaintiff's injury or to identify its driver and obtain a statement from him.
           A doctor that the plaintiff says examined him and whose name apparently appears in the Workers' Compensation records cannot be located and his medical records cannot be checked.  The solicitors appearing for the defendants contend that by virtue of the delay they have not been able to sufficiently investigate the matters alleged by the plaintiff to confirm that there ever was such an incident as that which he alleges.
           This contention must be considered against the background of the details incorporated in the plaintiff's application for workers' compensation which indeed were reaffirmed and expanded upon in the employer's report to the Workers' Compensation Board which was signed by an employee of the second defendant as a person in authority at the material time. That person now says that he has no recollection whatever of being informed of the events by the plaintiff which are incorporated in the report which he signed.
           The plaintiff contends that there was a person present at the time he was injured by the lightning strike but inquiries by the second defendant of that person show he denies that he was present as claimed by the plaintiff.
           For the second defendant it is contended that it has attempted to obtain evidence to test the plaintiff's assertions and that it is still doing so, but that "There is a strong probability of significant prejudice occurring" because of the delay and that therefore a fair trial at least on the issue of liability is unlikely.
           There is a conflict in medical opinion as to the aetiology of the plaintiff's complaints which have rendered him unemployable subsequent to his second injury.  Although the writ was issued in August 1994, a statement of claim was not served until 9 August 1996. In Taylor (supra), Dawson J observed that the onus of satisfying a court to exercise its discretion in favour of an applicant for an extension of the limitation period lies on the applicant who must establish that the commencement of an action beyond the limitation period "would not result in significant prejudice to the prospective defendant".  His Honour held that prima facie any extension of time pursuant to s.31 of the Queensland Act will be prejudicial to the defendant who would otherwise have the benefit of the limitation.  Of course it must have been within the contemplation of the legislature that when the court exercises its statutory discretion to extend a limitation period the defendant will always be prejudiced by loss of the benefit of the statutory limitation.
           At p. 868 col 2C Toohey and Gummow JJ observed:

"There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion.  But the ultimate onus of satisfying the court that time should be extended remains on the applicant."

Their Honours reaffirmed the principle endorsed by Gibbs J in Campbell v. United Pacific Transport Pty Ltd [1966] Qd R 465 at 474 stated by Gowan J in Cowie v. State Electricity Commission of Victoria [1964] VR 788 at 793 that:

"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."

Their Honours later observed:

"Whether prejudice to the prospective defendant is likely to thwart a fair trial is to be answered by reference to the situation at the time of the application.  It is no sufficient answer to a claim of prejudice to say, that in any event, the defendant might have suffered some prejudice if the applicant had not begun proceedings until just before the limitation period had expired."

"The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent. The respondent says that it may still prove possible to locate Dr Chang, that in any event he would have to rely on his notes and further more that if he cannot be located the medical records would be admissible in evidence pursuant to s.92 of the Evidence Act 1977 (Qld). But the extent to which Dr Chang must rely on his notes must relate to the lapse of time involved. In all the circumstances it can hardly be gainsaid that there would be some prejudice to the appellant by reason of the delay that has ensued."

At p. 871 col 1G  McHugh J observed:

"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 defendant 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."

At p. 873 col 1C his Honour continued:

"If the action had been brought within time, it would have been irrelevant that, by reason of the delay in commencing the action, Dr Chang might have had little independent recollection of his conversation with the applicant and that the defendant might have had difficulty in fairly defending itself. But once the potential liability of the defendant had ended, its capacity to obtain a fair trial, if an extension of time were granted, was relevant and important.  To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action.  This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent.  But the justice of a plaintiff's claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action.

Legislatures enact limitation periods because they make a 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."

On the uncontradicted evidence led on behalf of the defendant in this case, there is a real possibility or significant chance that due to the delay of the plaintiff it will be significantly prejudiced in preparing to meet the plaintiff's allegations of negligence made against it.  The death of some possible witnesses and the lack of recollection of events by others who but for the delay could possibly have been called as witnesses together with the second defendant's inability to locate contemporaneous records touching on the facts to be canvassed by the plaintiff at trial seem to make it possible that the second defendant will be disadvantaged at trial - even though from the employer's report signed by an officer of the second defendant within a couple of days of the plaintiff's alleged injury it seems clear that the second defendant was then well aware of the precise nature of the facts which the plaintiff now seeks to canvass although of course it had no compelling (if any) reason to investigate them with a view to avoiding legal liability for that injury.  However that may be, on the uncontradicted evidence led for the second defendant, it (or at least the Workers' Compensation Board) may be prejudiced by virtue of the delay and applying the tests propounded in Taylor's case, I hold that the plaintiff has failed to discharge the onus on him of establishing on the balance of probabilities that commencement of action against the second defendant after nearly 7 years delay would not result in significant material prejudice to it.
           I dismiss the plaintiff's application.
           I order that the plaintiff pay to the second defendant its costs of and incidental to the application to be taxed.