Bull v Ararat Abattoirs Pty Ltd
[2023] VCC 1903
•24 October 2023
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-20-03914
| GEORGE SHANE BULL | Plaintiff |
| v | |
| ARARAT ABATTOIRS PTY LTD AOB SERVICES PTY LTD ARARAT MEAT EXPORTS PTY LTD | First Defendant Second Defendant Third Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 16 and 17 October 2023 | |
DATE OF JUDGMENT: | 24 October 2023 | |
CASE MAY BE CITED AS: | Bull v Ararat Abattoirs Pty Ltd & Ors | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1903 | |
REASONS FOR JUDGMENT
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Subject:Application for extension of time
Catchwords: Workplace injury – injury during course of employment – employment terminated in 2004 – benefits under Accident Compensation Act 1985 (Vic) by way of medical and like expenses and loss of earnings benefits obtained relative to shoulder injury of slaughterman – solicitors retained by worker in the years 2002-2006 and perhaps 2007 – no damages action commenced before expiry of limitation period under s5(1) of the Limitation of Actions Act 1958 (Vic) in 2007 – worker’s physical condition deteriorates – advice from new solicitors in July 2018 as to common law rights – serious injury certificate granted in 2019 – whether worker should be given extension of time under s23A Limitation of Actions Act 1958 (Vic) – inordinate delay – prejudice to defendants overwhelming – application dismissed
Legislation Cited: Accident Compensation Act 1985 (Vic); Limitation of Actions Act 1958 (Vic); Corporations Act 2001 (Cth); Meat Industry Act 1993 (Vic); Meat Industry Regulations 1994 (Vic); Transport Accident Act 1986 (Vic); Limitation of Actions Act 1974 (Qld); Guardianship and Administration Act 1986 (Vic)
Cases Cited:Swannell & Anor v Farmer [1999] 1 VR 299; Griffiths v Nillumbik Shire Council [2022] VSCA 212; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Prince Alfred College Inc v ADC (2016) 258 CLR 134
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett KC with Mr G Pierorazio | Stringer Clark Lawyers |
| For the First Defendant For the Second and Third Defendants | Mr R H Stanley with Mr D C Oldfield | T G Legal + Technology Meridian Lawyers |
HIS HONOUR:
Background
1The plaintiff, Mr Bull, was born in 1963 (Court Book (“CB”) 59, [4]). He concluded his education at Year 9 at the Ararat Technical School. He has worked as “a doffer and weaver, as a labourer at various abattoirs and as a slaughterman.” (CB 59‑60, [6])
2He began working for the first defendant as a labourer “for the first few years and then as a slaughterman.” Mr Bull said that he worked as a slaughterman:
“… on the gutting block, doing gutting, opening up, ‘arse holing’, plucking and the scissors. We also did pelting and brisket, these are two different cuts. The gutting requires the physical removing of the sheep’s guts by pushing the hand down and then pulling the guts up and throwing this onto a tray. Opening up requires slitting and then removing the ‘shit chute’, this is performed before the gutting. The ‘arse holing’ is to cut around the ‘arse’ so that all this can be pulled out, plucking is removing the lungs and heart and the scissors is to cut the brisket down the front.” (CB 60, [8])
3He said that this work was “very fast paced as the chain line would move very quickly.” He said he was required to work on “up to 13 carcasses a minute.” (CB 60, [7]‑[9])
4Prior to commencing work with the first defendant, Mr Bull had sustained a burn injury whilst working at an abattoir in Brooklyn operated by Brooklyn Consolidated Industries (CB 151‑2). He made a claim for compensation under the Accident Compensation Act on 31 October 1990 (CB 123). He brought a claim for common law damages which was settled for $3,500 (all in) in satisfaction of his claim and costs, as evidenced by a deed of release between him, Lowbank Investments Pty Ltd and the Victorian WorkCover Authority dated 28 January 1993 (CB 162‑163). He was represented in that proceeding by the firm Ronald Zanes & Co of South Ballarat (CB 125). In July 2003, he says he “commenced to experience pain in [his] right shoulder, which [he] first reported at work on 26 September 2001.” This led him to be placed on light duties and to undergo an MRI scan of his right shoulder on 26 November 2001 which he said “revealed a partial thickness tear of the supraspinatus tendon with subdeltoid bursitis.” He therefore continued on light duties and underwent surgery on his right shoulder, performed by Mr John Patrikios on 22 April 2002, by way of arthroscopic subacromial decompression and AC joint debridement leading to him being “off work” for two and a half months and returning to work on light duties four hours a day. He had a further intervention by way of manipulation of his right shoulder under general anaesthetic performed by Mr Patrikios on 21 October 2002. Mr Bull said that because of the problems with his right shoulder, he came to rely excessively on his left arm and shoulder and “in about January 2003 … commenced to notice pain in [his] left shoulder.” This led him to make a claim for compensation on 5 March 2003. Following an ultrasound scan of his left shoulder, he underwent surgery on his left shoulder on 6 October 2003 by way of arthroscopic subacromial decompression as performed by Mr Patrikios. Following an initial rejection of his compensation claim, liability was accepted by the WorkCover insurer. This led to Mr Bull’s being off work for a further three months and “resuming on graduated hours on alternative duties eventually working up to fulltime duties although after about 2 months because of increasing pain, [he] had to reduce [his] hours of work.” He ceased work in or about 2004 as a result of “increasing pain in both shoulders.” (CB 53, [4‑14])
5Mr Bull had an ultrasound of his right shoulder on 8 December 2017 which he said “revealed a partial tear of the long head of biceps tendon, partial thickness tears of the subscapularis and supraspinatus tendons and bursitis with bursal impingement.” An ultrasound on the left shoulder on 23 April 2018 “revealed supraspinatus tendinosis with late abduction impingement, with a mild degree of subacromial bursitis.” An MRI of the left shoulder on 29 May 2018 he said “revealed mild grade features of adhesive capsulitis.” (CB 205)
6Dr D J Pope, Mr Bull’s general practitioner, sent a report to Mr Graham Hills at BJT Legal (“BJT”) dated 5 November 2002. He apologised “for the delay in this letter but I was waiting on the results of recent surgery before replying.” The doctor noted an initial presentation on 13 September 2001 “complaining of a sore right shoulder, present over the past two months.” The immediate significance of this letter is that it indicates Mr Bull had at some time, presumably months before the date of the letter, 5 November 2002, retained BJT to act for him relative to his shoulder injuries.[1]
[1]This letter was added to the Court Book at a late stage and so was not assigned a Court Book page number.
7Mr Bull had lodged a compensation claim under the Accident Compensation Act 1985 dated 5 March 2003 (CB 167‑169) complaining of injury by way of “tendernitis [sic] in Left shoulder.” BJT sent a letter to the first defendant’s WorkCover manager dated 25 August 2004 enclosing “by way of service” some seven medical reports and a claim for impairment benefits (CB 170).
8On 4 March 2005, according to the Victorian WorkCover Authority’s records, Mr Bull was “Issued a notice of entitlement, following a medical panel assessment which finalised his claim of impairment benefit.” (Transcript (“T”) 86‑87, exhibit TEO 2 to affidavit of Thomas Edward O’Grady, sworn 17 October 2023). The determination, it seems, was that Mr Bull was found to be suffering from a permanent impairment of 11 per cent of his upper limb which, according to the formula in the guides for the assessment of permanent impairment published by the American Medical Association and used for statutory purposes, converted to a whole person impairment of 7 per cent. A whole person impairment of less than 10 per cent resulted in no impairment benefit being paid to Mr Bull (T88).
9By letter dated 25 November 2005, QBE Workers Compensation, the claims agent administering the WorkCover scheme relative to the first defendant and Mr Bull, gave notice that it would “terminate [Mr Bull’s] weekly payments of compensation on 31 December 2005.” These “weekly payments” were presumably loss of earnings benefits (CB 172). The letter extended over some six pages, referring to extracts from various medical reports, a recital of the history of the injury and compensation claims, and reference to video surveillance which, according to a supplementary report by Dr John Bourke of 5 July 2005, showed that Mr Bull was “able to flex the right shoulder to 120 degrees as he places his finger on the board and holds the position. He then plays darts right handed with a free flowing action. The shoulder flexion demonstrated is only to 80 degrees.” (CB 173) BJT, it seems, was continuing its retainer on behalf of Mr Bull and by letter dated 4 October 2005 sought conciliation under the WorkCover scheme relative to the termination of weekly benefits (CB 171). Also, it would seem, as part of the same process, BJT referred Mr Bull for medico-legal assessment to Mr M A Khan, orthopaedic surgeon, who responded to Mr Hills by letter dated 28 March 2006 (CB 178). BJT, it seems, took matters no further. Mr Bull made inquiries of the Legal Aid Commission “when I lost me, um, weekly wages. I rang them to see what they’d say.” (T65, Lines (“L”) 21‑22) He received no satisfaction. I asked Mr Bull if the response was along the lines of “[t]hese sorts of things are widely done on a ‘no win, no fee’ basis, so therefore, we [the Legal Commission] don’t provide aid for these sorts of claims”. Mr Bull replied “[t]hat was virtually what it was.” (T67) Mr Khan in March 2006 reported to BJT that Mr Bull “does not qualify for ‘no current capacity for work’ in relation to the injuries to his shoulders … [h]e has been left with a partial incapacity which is consistent with his employment and this is likely to extend indefinitely into the future.” (CB 185) There matters seemed to have rested on the compensation/damages front for over a decade.
10According to the calculations made by the defendants in this proceeding, as at 26 September 2007, the limitation period for the commencement of a common law damages claim relative to the injuries to Mr Bull’s shoulder expired on 26 September 2007. Responding to a subpoena issued in this proceeding, BJT Legal stated relative to Mr Bull’s compensation file “we have searched our records and this file was closed over 13 years ago. The complete file was archived and has since been destroyed.” This email response is dated 6 October 2020, implying that BJT closed its file sometime in 2007 (CB 197).
11There were, however, further events on the medical and surgical front. Ms Anne Forsyth, in the course of a vocational assessment report dated 25 September 2023 (“Forsyth report”), identified a number of surgeries that were not otherwise referred to, the first of them being surgery on Mr Bull’s right shoulder on 12 February 2007, being an arthroscopic subacromial decompression performed by Mr Patrikios[2] (page 3). Mr Bull agreed that he underwent that surgery. He had previously expressed dissatisfaction with his surgeon, Mr Patrikios. I asked him why he continued to undergo surgery at Mr Patrikios’s hands. Mr Bull replied “[he] had already had it booked in before I even knew about it.” (T25, L15‑19) When pressed by Mr Stanley, who said to Mr Bull that he would not have undergone the surgery had he not needed it, Mr Bull said “I was losing movement … and I also started getting some tears as well.” (Ibid, L27‑31). The Forsyth report noted that Mr Bull had been referred to orthopaedic surgeon, Mr Andrew Byrne, for a second opinion. Mr Bull said that Mr Patrikios “turned around and said there’s no more that he could do.” (T26, L17‑18) The Forsyth report notes surgery on 21 October 2008 on Mr Bull’s left shoulder by Mr Byrne by way of “arthroscopic surgery including capsulotomy for adhesive capsulitis, subacromial decompression and excision of the acromioclavicular joint” (page 3). The Forsyth report then referred to further surgery on Mr Bull’s right shoulder by Mr Byrne by way of “arthroscopic subacromial decompression and rotator cuff repair”. On 19 October 2010, according to Ms Forsyth, “Mr Bull advised that this surgery was ineffective and his right shoulder pain not only persisted but worsened”. Mr Bull said that at this time he “was … starting to lose movement as well. He [Mr Byrne] thought I had a ‘frozen shoulder’, it was called back then.” (T27, L8‑10) Mr Bull, under cross-examination in the hearing before me, agreed that as recorded by Ms Forsyth following his 2010 surgery, his right shoulder pain “not only persisted but worsened” (Ibid, L19‑20). Mr Bull agreed that he could be seen at this point as “a man who has had nine years of pain in his right shoulder; … who’s had three operations to his right shoulder; and that that right shoulder pain is not only persisting but worsening following the most recent procedure” (Ibid, L22‑26). Similarly, following two procedures on his left shoulder as at 2010, his operations had proved “pretty ineffective curbing what had been longstanding pain” (Ibid, 29-30). He agreed that as at 2010, he was “clearly restricted in his ability to do domestic activities”, that his sleep was disturbed, he well and truly appreciated the severity of his condition despite five surgeries over the previous eight years (T28, L3‑11).
[2]The report by Ms Forsyth was a late addition to the Court Book and was not included in its pagination. References here are to the internal pagination of the report.
12There matters rested for almost another decade. Mr Bull said that in 2018, he “underwent a hydrodilatation procedure which helped for a while, approximately 6 months, before the symptoms slowly returned.” (CB 55, [29]) He said he was “informed at about that time that [he] would require a total right shoulder replacement.” (Ibid, [30]) He said around that time he met another abattoir employee who told him that he, Mr Bull, should be entitled to weekly payments of compensation “as a result of having surgery and that there was no reason why I shouldn’t be on weekly payments of compensation if I was looking at having further surgery to my shoulder.” He said at that time, about 3 July 2018, he consulted his present solicitors, Stringer Clark, “about getting back onto weekly payments of compensation and it was at or about that time or shortly thereafter that my lawyers explained to me my common law rights and that I had only 6 years to bring such a claim.” (Ibid, [31]-[32]) Stringer Clark, he said, took steps to have his weekly payments reinstated, which eventually occurred “on or about 20 February 2020.” He underwent a total right shoulder replacement on 8 October 2018, with Stringer Clark lodging a serious injury application on his behalf on or about 23 December 2019 (Ibid, [32]‑[35]).
13In a second affidavit in support of his application before me, Mr Bull said “[i]t was only some considerable time later [than when he was represented by BJT] … after I was referred to an orthopaedic surgeon, Mr Andrew Byrne who in or about 2018 informed me that I would require a total right shoulder replacement, that I ended up seeing my current lawyers” (CB 255, [6]). He continued “[i]ndeed, it was only after I had received the advice from Mr Byrne that I required a total shoulder replacement that I fully appreciated the severity of my right shoulder injury, having been able to cope with my symptoms with painkilling medication up until that point.” (Ibid, [7]) Given the worsening or lack of improvement in Mr Bull’s shoulders, as testified to by the multiplicity of surgeries on his shoulder and his concession in cross-examination that his shoulders were either not improving or getting worse, it is difficult to understand how he did not, as at 2010, or at any rate before being advised to have the right shoulder replacement in 2018, appreciate the severity of his problem.
14Mr Ron Pearce, the managing partner of Stringer Clark, affirmed an affidavit dated 31 May 2023 which took up the narrative as from the retainer of his firm. He described the steps which it took after the initial conference on 3 July 2018 to prepare a claim for common law damages and obtain an extension of time to bring such an action under s23A of the Limitation of Actions Act 1958. On 10 July 2018, his firm requested a copy of Mr Bull’s claim file from the WorkCover insurer, EML Mutual, which Stringer Clark received on or about 3 August 2018. Next, on 30 April 2019, Stringer Clark issued Magistrates’ Court proceedings disputing the WorkCover insurer’s decision to terminate Mr Bull’s weekly payments on 25 November 2005, with the proceeding being settled (apparently with the restoration of weekly payments) and the application being dismissed on or about 13 February 2020. Meanwhile Stringer Clark, on 27 April 2019, had obtained health records from the Ballarat Group Practice by letter of 30 April 2019 and requested a copy of Mr Bull’s health records from Pain Matrix, which were received on or about 10 May 2019 (CB 257, [7]-[11]). He said Stringer Clark sent a letter dated 23 July 2019 seeking Mr Bull’s health records from Newington Physiotherapy & Sports Medicine Clinic and received those records on or about 9 August 2019. He issued a subpoena addressed to the first defendant dated 2 August 2019 to obtain health records from the Ararat Medical Centre which were received on or about 28 August 2019 (CB 258, L12‑16).
15Mr Pearce said his firm referred Mr Bull for medico-legal assessment to Dr Joseph Slesenger on 13 June 2019 and Mr Thomas Kossmann on 28 August 2018, with reports being received respectively on 6 November 2019 and 25 September 2019. He obtained Mr Bull’s taxation records for the years 1999 to 2018 on or about 6 November 2019, discovering that Mr Bull had not, as at 18 December 2019, submitted a return for the year ending 30 June of that year (Ibid).
16Stringer Clark sought counsel’s opinion on Mr Bull’s “entitlements to weekly payments and the prospects of his common law claim”, and following counsel’s advice, concluded that Mr Bull “had reasonable prospects of success in a common law claim” and briefed counsel to draw documentation for the serious injury application. Mr Pearce continued “however unfortunately due to Counsel’s and [Mr Bull’s] unavailability this was met with delays and we understand that [Mr Bull] did not confer with Counsel until about 20 October 2019.” Stringer Clark lodged “the relevant documentation on or about 30 October 2019” (CB 259, [17]‑[20]). He said the serious injury application was lodged on 19 December 2019 and received by “WorkSafe” on 31 December 2019. Stringer Clark received a letter on Mr Bull’s behalf on 15 April 2020 granting the serious injury certificate. He said that this proceeding was issued against the first defendant on 2 September 2020, and following further investigations, the second and third defendants were joined as parties on 16 August 2022. The second defendant had to be reinstated following its earlier dissolution under the terms of the Corporations Act.
This proceeding
17As previously noted, the WorkCover Authority has granted Mr Bull a serious injury certificate relative to his claimed injuries. Stringer Clark filed the initial statement of claim and writ seeking damages against the first defendant only on 2 September 2020 with the amended writ and statement of claim adding two additional defendants on 4 August 2020 (CB 4-11 and 21-32 respectively).
18The matter standing between Mr Bull and an ability to prosecute his claim for damages against the defendants is the expiry of the six-year limitation period under the Limitation of Actions Act 1958 for personal injury claims. Mr Bull’s solicitors have filed a summons dated 13 February 2023 seeking an enlargement of time to bring this claim for personal injury damages “in respect of the injuries sustained in the course of [Mr Bull’s] employment on or about 26 September 2001.” (CB 49-50)
Statement of Claim
19After alleging the incorporation of the defendant, the amended statement of claim at paragraph 4 says that Mr Bull was employed by the first defendant, Ararat Abattoirs Pty Ltd, “in its capacity as a labour hire firm” (CB 24), as a slaughterman and was required to perform work at the premises of the second defendant, AOB Services Pty Ltd, at Nott Road, Ararat. The amended statement of claim said the licence to operate an export abattoir pursuant to the Meat Industry Act (Vic) 1993 and the Meat Industry Regulations (Vic) 1994 was held by the third defendant, Ararat Meat Exports Pty Ltd (Ibid).
20Mr Bull, according to paragraph 8 of the amended statement of claim (Ibid), was acting within the scope of his employment by Ararat Abattoirs, and in the course of that employment was required to perform duties which were “repetitive, awkward and heavy in nature”, particularising those duties to the same effect as Mr Bull’s affidavits filed in support of this application for enlargement of time (CB 25, [9]). Paragraph 10 states that as a result of performing those duties Mr Bull “suffered injury, loss and damage.” His injuries were particularised to the same general effect as the various shoulder issues described in the introductory portion of these reasons, as well as “production, aggravation, acceleration and/or exacerbation of degenerative changes in the cervical spine including multi-level cervical canal stenosis, moderate at C5/6 with cord flattening and moderate to severe at the right C5/6 with right C6 nerve root impingement”. There is also an allegation of consequential psychological injury and a claim for loss of earning capacity (CB 26). The injury was allegedly “caused by the negligence of the Defendants, their servants and agents” (Ibid, [11]), and particulars of negligence as against the three defendants are subjoined to paragraph 11 (CB 26-28).
21Further, it was said that Mr Bull’s injury “was caused by reason of the breach or breaches by the Defendants of their duties pursuant to the provisions of the Occupational Health and Safety (Manual Handling) Regulations 1999” (CB 28, [12]) with particulars of breach subjoined. Paragraph 13 alleges “breach or breaches by the Defendants of their duties pursuant to the provisions of the Occupational Health and Safety (Plant) Regulations 1995” and particulars of breach were subjoined (CB 29-30).
Defence
22The first defendant’s defence dated 30 May 2023 (CB 33) contained a variety of admissions but principally denials. Exception was taken to the use of the phrase “at all material times” in a number of places (CB 33-35, [1]-[13]). The first defendant alleged contributory negligence as against the plaintiff, providing particulars thereof (CB 35-36, [14]). Finally, the first defendant relied on s5 of the Limitation of Actions Act 1958 as barring Mr Bull “from making any claim for damages in respect of injuries suffered by him throughout the course of his employment” (CB 37, [15]).
23The second defendant’s defence dated 1 December 2022 (CB 39-43) was generally to similar effect, including the pleaded reliance on s5(1) of the Limitation of Actions Act 1958 (CB 41, [16]).
24The third defendant’s defence dated 1 December 2022 (CB 44-48) is to similar effect, most importantly for the present application, relying on s5(1) of the Limitation of Actions Act 1958 (CB 46, [16]). The matter for my determination is whether the relief sought under the summons, namely an extension of time under s23A of the Limitation of Actions Act 1958, should be granted.
Factual issues
25Mr Bull said he had no memory of being advised by BJT that any damages claim he might bring arising out of his injury was subject to a six-year limitation period. He did not distinctly deny receiving such advice, but merely said he could not recall it (T51-52).
26In cross-examination Mr Pearce, Mr Bull’s solicitor, said he had been a practising solicitor in the field of personal injury since 1979 (T116, L3-4). He said in his own firm – and it would seem he controls a number, one of which is Ryan Carlisle Thomas, with 110 staff across all firms (T115, L27 to T116, L4) – the six-year limitation period for common law damages claims for personal injury would be “part of a raft of matters [he would] discuss, but it wouldn’t be front of mind for [his employees]” (T117, L12-14). He said the vital “trigger point”, at least for initial consultations, would be the period “18 months post-injury, stabilisation” (T117, L26-28). He said moreover, typical personal injury clients were “unsophisticated in these matters and will essentially assimilate about 15 per cent of what you tell them. So you would always confirm it in writing.” (T117, L4-7) He agreed that it would be normal practice to have a standard letter setting out relevant time limits including the six-year time limit (T117, L22-30). Mr Pearce could only speak for his own experience and his own firm or firms. He said, however, that what he had described as being standard practice today was standard in 2005 as well (T120, L6-7).
27In re-examination, Mr Brett KC asked Mr Pearce if he knew “whether BJT Legal sent such a letter” Mr Pearce replied:
“I assume they did. They’re a commercial family law firm in Ballarat, from my recollection, but I imagine if they...saw someone they would...give advice...in writing and in conference, or certainly in writing about the timing.” (T121, L17-22)
28He said, however, that the six-year time period would be given no emphasis or prominence “[w]hen a client first consults [him], if that is well within the six-year period”. (Ibid, L23-25)
29Based upon this evidence and the probabilities, I find on the balance of probabilities that BJT Legal in the course of acting for Mr Bull in the period 2002 to 2007 would have alerted him to the six-year time limit.
Legal issues
30This application is brought under s23A of the Limitation of Actions Act 1958 which states:
“23A Personal injuries
(1) This section applies to any action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) where the damages claimed consist of or include damages in respect of personal injuries to any person.
(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.
(4) The powers conferred on a court by subsection (2) may be exercised at any time notwithstanding—
(a)that—
(i) in the case of an action to which section 5(1AA) or (1A) applies (not being an action to which section 23(1) applies), more than 3 years has expired since the cause of action accrued; and
(ii) in any other case more than 6 years has expired since the cause of action accrued; or
(b)that an action in respect of such personal injuries has been commenced.
(5) An application under this section shall be made by summons in the jurisdiction in which an action has been or is proposed to be brought and a copy of that summons shall be served on each person against whom the claimant claims to have the cause of action, provided that the Supreme Court may give leave to bring an action in any court which seems to it appropriate.
(6) Except as provided by section 27M(2), this section does not apply to an action to which Part IIA applies.”
31The limitation period itself for a proceeding such as the present is laid down by s5(1) which provides:
“(1)The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued—
(a)Subject to subsections (1AAA), (1AA) and (1A), actions founded on simple contract (including contract implied in law) or actions founded on tort including actions for damages for breach of a statutory duty;
...”
32Crucial to the application of these provisions is a determination of the date on which the cause of action under consideration “accrued”. Without traversing the relatively complex provisions in the Accident Compensation Act 1985 as it existed in 2001, no claim for damages could be brought without a finding of “serious injury”. Therefore, it might be said that until the WorkCover Authority granted Mr Bull the serious injury certificate in 2019, no cause of action had accrued and he is well within time in bringing this proceeding. Such a view would mean that the restriction of personal injury claims and WorkCover matters to those where a “serious injury” is demonstrated would, by a side wind, have largely if not totally abolished the application of s5(1) of the Limitation of Actions Act 1958 to such proceeding. A potential plaintiff would be at liberty indefinitely to defer the accrual of the cause of action in his favour by deferring the bringing of a serious injury application, as in effect did Mr Bull, though I do not suggest that he had any such plan in mind.
33In Swannell & Anor v Farmer [1999] 1 VR 299, a common law damages claim was brought purportedly under s93 of the Transport Accident Act 1986 by the administrator of a deceased’s estate. At the time of the death of the deceased he had not obtained a finding that he had suffered a serious injury for the purposes of s93. An application was brought by the administrator of the estate in this court seeking determination that the deceased had suffered a serious injury. The Court of Appeal set aside that determination, concluding, according to the head note, that:
“s. 93(1) of the Transport Accident Act 1986 was not a procedural provision barring a remedy. Rather, it was a substantive provision which conditionally extinguished a field of potential rights and liabilities with the result that a common law cause of action did not arise in respect of transport injuries unless the requirements of s. 93(4) were met. Accordingly, at the date of the deceased’s death, there was no cause of action for damages for his injuries and no enforceable right to apply for leave to commence proceedings vested in him which could survive for the benefit of his estate ...”
34This is not, however, the way in which s5(1) of the Limitation of Actions Act 1958 has been applied in WorkCover proceedings. I was referred by Mr Oldfield, counsel for the second and third defendants, to the decision of the Court of Appeal in Griffiths v Nillumbik Shire Council [2022] VSCA 212 (“Griffiths’ case”), where Judge O’Neill of this court considered an application to extend time by a “worker” within the meaning of the Accident Compensation Act 1985 to bring a claim for damages. The Court of Appeal heard an appeal from his Honour’s determination rejecting the application for extension. Both his Honour and the Court of Appeal analysed Mr Griffiths’ case on the basis that his cause of action accrued upon the manifestation of his personal injury in the same manner in which such a question would have been approached before the introduction of the “serious injury” regime limiting the bringing of common law damages claims in matters governed by the then Accident Compensation Act 1985.
35In recent decades, the authorities stress than an applicant has no “presumptive right” to an extension of time. In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (Brisbane South case), when dealing with an application for extension of time under the Queensland Limitation of Actions Act 1974, McHugh J said:
“The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, ‘what has been forgotten can rarely be shown’. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
Even before the passing of the Limitation Act 1623 (Imp), many civil actions were the subject of time limitations. Moreover, the right of the citizen to a speedy hearing of an action that had been commenced was acknowledged by Magna Carta itself. Thus for many centuries the law has recognised the need to commence actions promptly and to prosecute them promptly once commenced. As a result, courts exercising supervisory jurisdiction over other courts and tribunals in their jurisdictions have power to stay proceedings as abuses of process if they are satisfied that, by reason of delay or other matter, the commencement or continuation of the proceedings would involve injustice or unfairness to one of the parties.”
36His Honour continued:
“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.” (1996) 186 CLR 541, 551-2
37Later in his judgment, his Honour said:
“… 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.” (1996) 186 CLR 541, 555
38The High Court reversed the Queensland Court of Appeal’s extension of time in the case before them. Toohey and Gummow JJ said:
“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.” (1996) 186 CLR 541, 548-9
39It follows that in considering the prejudice to the defendants for the purposes of this application, the focus should be upon the total lapse of time between the accrual of Mr Bull’s cause of action and the date of commencement of this proceeding, rather than upon the length of time between the expiry of the limitation period said to be September 2007, on the one hand, and the date of commencement of proceeding on the other. So approached, the delay is very long indeed – 18 years.
40The Court of Appeal recently synthesised the principles which should guide a court in exercising the discretion under s23A by reference to the High Court’s decision in the Brisbane South case from which I have already quoted, and its later decision in Prince Alfred College Inc v ADC (2016) 258 CLR 134.
41In Griffiths’ case, Beach JA, Keogh and J Forrest AJJA said:
“To put it bluntly, and contrary to what appears to have been the perception of Mr Griffiths and his lawyers after 2016, a limitation period in a personal injuries claim, or in a proceeding more generally, is not just some easily movable line in the sand. Rather, it is a formidable hurdle which can only be overcome by the applicant satisfying the test laid down by the relevant extension of time provisions.” [2022] VSCA 212 at [66]
Conclusions
42Turning then to the consideration mandated by sub-s(3) of s23A for consideration by the court on an application under the section, the delay of the plaintiff is very long indeed, namely 18 years. The reasons for that delay are not entirely clear. Mr Bull has, as already noted, candidly conceded a lack of memory as to what transpired between him and his then legal advisers, BJT, in the years running up to the expiry of the six-year limitation period and the termination of BJT’s retainer and the closure of its file. I have already made a finding that it is more likely than not that Mr Bull was advised by BJT of the time limitation issue.
43The very low impairment rating given to him by the Medical Panel and the somewhat discouraging conclusion reached by Mr Khan in his medico-legal assessment in 2006 are, in my view the most likely explanations as to why matters were taken no further.
44Based on his admittedly imperfect and incomplete memory, Mr Bull said of the advice that he received from BJT toward the end of their retainer “[a]ll they told me was, when I had the percentage done, my percentage wasn’t high enough.” (T53, L10-11)
45Around the same time as we know, Mr Bull’s weekly payments of WorkCover benefits were terminated in part on the basis of video surveillance. It would be unsurprising if the combination of the disappointingly low impairment rating given to Mr Bull, and the damaging video surveillance, did not lead BJT and Mr Bull, or perhaps both of them, to conclude that a common law damages action was not worth pursuing.
46This is the finding which I make as the most probable explanation for what did or, more accurately, did not happen in the years 2002 to 2007, when it would seem BJT were retained by Mr Bull. Subsequent events seem to have comprehensively discredited this pessimistic conclusion. As already noted, WorkCover granted Mr Bull a serious injury certificate in 2019 without it being necessary for him to take the matter to court.
47I consider next the likely prejudice to the defendants. The defendants relied on an affidavit of Mr Murray Stapleton. Mr Stapleton said that he was a director of the first and third defendant, continuing:
“The First Defendant was the supplier of contract labour and employment-related services to the operator/s of the abattoir, including the Second Defendant. The Second Defendant was an operator of the abattoir. The Third Defendant was, and is, authorised by PrimeSafe to operate an abattoir located at Nott Road, Ararat. All entities have shared office space which is located on the Nott Road premises, across the yard from the slaughter room.” (CB 80)
48Mr Stapleton said that he first became involved in the defendants’ abattoir business “in approximately April 2003. My initial role was a stock buyer, which required me to be on the road, essentially procuring stock for the facility to process.” (CB 81, [5])
49He said he became livestock manager in 2008, which again required him to be “out on the road a lot”. It was only “[i]n or about 2012” that he began working at the abattoir premises, “on a more full-time basis.” (Ibid, [6] and [7])
50According to Mr Stapleton, while Mr Bull was employed at the abattoir his late father was effective controller of all defendants (CB 81-2, [12]). Mr Stapleton said that his father was effectively general manager of the business in that era and was a “hands on” manager. Whilst his father was, he said, “fastidious about workplace safety”, he was “a woeful recordkeeper” (CB 82, [14]-[15], [17]-[18]).
51Mr Stapleton said:
“Given the Plaintiff alleges a failure on the part of the Defendant to conduct risk assessments, provide training and rotate his duties, I have also conducted a thorough search for documents relating to these matters relevant to the period of the Plaintiff’s employment. I have not been able to locate any. This is not to say that relevant documents did not exist, they very well may have, but that simply I cannot locate them. Such documents must have been since destroyed. I have no way of knowing what other documents relevant to this claim have been destroyed.” (Ibid, [19])
52Mr Stapleton said “Ill health beset my father in 2018 and he then reduced his role in all businesses at about that time.” (Ibid, [13]) He died on 8 October 2022 (T95, L17-25).
53Mr Stapleton referred to a number of people who may have been involved in events in the early part of the millennium when Mr Bull says he was injured, namely Messrs Wayne Ford, Peter Burton, Ms Heather Chestney and Mr Mark Cunningham, all of whom were, as far as Mr Stapleton was aware, retired and out of contact with the defendant companies (CB 84, [26]).
54Mr O’Grady, solicitor for the first defendant, swore an affidavit on 17 October 2023. In cross-examination he conceded that he had contact details, including a telephone number, for Mr Burton (T89, L21-25).
55Mr Hand, the solicitor for the second and third defendants, deposed that the second defendant:
“exists for the purposes of this litigation only. [It] was de-registered from the register of companies on or about 16 June 2015 [and] was reinstated…on 1 July 2022.” CB 228, [4]-[6])
56He said that at relevant times the second defendant’s sole director was Mr William Stapleton, deceased (Ibid, [10]). The liquidator of the second defendant “holds no records in relation to AOB other than documents exchanged in this proceeding.” (Ibid, [12])
57As a result of these matters, Mr Hand said he was “unable to obtain any meaningful instructions from AOB in relation to the matters the subject of this proceeding.” (CB 229, [15]). He noted that the second and third defendants were not joined to the proceeding “until 24 August 2022” (CB 228, [3]).
58Mr Brett KC and Mr Pierorazio made a number of points responsively to these matters. They noted, for instance, that whilst the late Mr Stapleton was said to have been beset by illness from 2018 onwards, he was not said to be “non compos”. Indeed, since, according to his son’s affidavit, he was performing a reduced role with the defendant company, he was, from 2018 until his death, still a functional executive from whom instructions could have been obtained.
59They said “there was clearly a very substantial opportunity to obtain a decent proof of evidence from him” (T182, L20-22).
60Mr Brett KC cross-examined Mr O’Grady as to the various enquiries which he had made with a view to suggesting, as in the case of Mr Burton, that the enquiries made were less than exhaustive. The force of that cross-examination must be acknowledged.
61As to the issue of documents, Mr Brett KC and Mr Pierorazio said “[w]ell, there’s actually no evidence that any documents had been lost. There’s evidence that there’s no documents at all.” (T183, L29-31) They noted Mr Stapleton’s son that his father was a “woeful record keeper”. They said that, according to the affidavit and viva voce evidence of Mr O’Grady:
“…that he asked for all manual handling assessments and job safety assessments, and none were provided. So the inference from that would seem to be if there's none now, why would there have been any then? In terms of the rates at which carcasses were being dealt with, we now know that Mr Burton has made a statement to Mr O'Grady. He would certainly be able to speak to these matters.” (T184, L8-15)
62They conceded that the evidence as to Mr Burton was that he had informed Mr O’Grady that he had no recollection of the events as a result of the effluxion of time (T185, L7-9).
63They conceded that different considerations applied to the second and third defendants, who were only brought into the proceeding after the death of Mr Stapleton senior. They conceded as a “fallback” position that leave might be granted to bring a proceeding against the first defendant but not the other two (T186, L2-16).
64I turn next to a consideration of “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” (s23A(3)(c)).
65Mr Brett KC and Mr Pierorazio were critical of the defendants’ failure to be more forthcoming upon the relatively complex structure involving the three defendants. They noted that the defence filed by the first defendant in response to the initial statement of claim said nothing on this issue. Ultimately, however, as I understood it, they conceded that as part of a package of documents described as reply to serious injury applications to Mr O’Grady and furnished him with documents which, at least partially, illuminated this issue (T102).
66Paragraph (d) of section 23A(3) which refers to the duration of any disability of the plaintiff, appears inapplicable to the present state of facts. This is not a situation where Mr Bull was, at any material times, under the age of 18 and therefore lacking in capacity or under some form of “administration” as for instance under the Guardianship and Administration Act 1986.
67The next consideration of paragraph (e) of s23A invites attention to “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”.
68The narrative already given indicates that from the initial consultation with Mr Bull’s present solicitors, Stringer Clark, matters moved at a leisurely pace. As I remarked on a number of occasions during the hearing, it is perhaps only human that the urgency which might lead a potential litigant or a legal practitioner to act to meet a deadline ebbs away once the deadline has already passed. To pursue a metaphor, one might run at top speed to catch a bus. Once the bus has departed and is out of sight, there seems little incentive to move beyond walking pace.
69The precise nature of Mr Bull’s retainer of Stringer Clark was not explored. He has been out of the workforce since 2004. It seems likely that his solicitors are acting on a “no win, no fee” basis. In those circumstances, Mr Bull is not in a position to lay down deadlines and dictate to his legal adviser. Again, launching proceedings and obtaining a serious injury certificate is not a matter merely of filing formal documents, but requires medico-legal assessments, medical records and so forth to be obtained. Making all just allowances for these considerations, the pace of the plaintiff’s case since 2018 can best be described as leisurely.
70Finally, s23A(3)(f) invites consideration of “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”. These matters are dealt with in Mr Pearce’s affidavit. This affidavit shows a methodical and comprehensive approach by those acting for the plaintiff, albeit at a relatively leisurely pace.
71The purport of the material assembled can be regarded as establishing, as the WorkCover Authority has conceded, that Mr Bull has suffered a “serious injury” within the meaning of the Accident Compensation Act 1985, as it stood in the early years of this century or millennium. There was a contemporary investigation by a private investigation organisation known as “Lyonswood”, which is available in incomplete form. Lyonswood apparently no longer exists.
72Mr Brett KC and Mr Pierorazio were inclined to criticise investigations as to what may be discovered relative to this former organisation, as made by the solicitor for the first defendant.
73Having referred to these matters, as the Court of Appeal in Griffiths’ case observed, [2022] VSCA 212 at [68]:
“The circumstances of the case referred to in s 23A(3) require a synthesis of the competing considerations set out in the subsection in reaching a conclusion that takes into account all of them.”
74This is a case of extreme delay. This creates a strong presumption against the extension of time for all the reasons referred to by McHugh J in the Brisbane South case. Mr Bull candidly admitted the imperfection of his recollection of the events in the early years of this century or millennium. This point was demonstrated in a number of respects by contrasting his recollections with contemporary written sources. Those involved in management of the abattoir at the time, by the nature of their management roles, might be thought by capacities and training to have better and more precise memories than Mr Bull. Nevertheless, according to Mr O’Grady’s enquiries, individuals such as Mr Burton, who features in the Lyonswood report already referred to, professed a lack of recollection.
75Individuals who have left the employ of the defendants are no longer at its “beck and call”. These defendants have no entitlement to require such persons to attend conferences and give instructions to the defendants’ legal advisers. They have no entitlement, for instance, to require such individuals to refresh their memory by reference to the incomplete Lyonswood report. The individuals may be cooperative; they may not be.
76As far as the failure to “proof” the late Mr Stapleton before his death in the same way as “just allowances” should be made for the time taken by Mr Bull’s present legal advisers “to get his case on the road” after the initial conference, so allowance must be made for the first defendant’s failure to obtain a statement from the late Mr Stapleton before his death.
77The precise circumstances of his passing were not explored. It was not suggested, for instance, that he was fatally ill in 2018, such that the first defendant’s legal advisers must have known that he would not be available for any possible trial or, indeed, an application such as this, unless a proof were taken immediately.
78As things have turned out, if this extension is given, he is a crucial witness who will not be available to any of the defendants. Nor will he be available at any substantive trial to provide instructions to the defendants’ legal advisers.
79The proposition that the absence of documents as to safety procedures indicates these never existed cannot be accepted. There is simply no evidence one way or another. A litigant who bears an onus of proof, as does Mr Bull, cannot discharge it by resort to speculation.
80This is a very hard case indeed for Mr Bull, who has had a very bad outcome. Nevertheless, the extreme delay and the clear prejudice to which the defendants would be exposed if this extension were granted outweigh all other considerations.
81This application must be dismissed.
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