Caliskan v Holyoake Industries Pty Ltd (Ruling)
[2019] VCC 1557
•2 October 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-18-02225
| TULAY CALISKAN | Plaintiff |
| (A person under a disability, who sues by her litigation guardian) | |
| v | |
| HOLYOAKE INDUSTRIES PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 September 2019 | |
DATE OF RULING: | 2 October 2019 | |
CASE MAY BE CITED AS: | Caliskan v Holyoake Industries Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1557 | |
RULING
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Subject:LIMITATION OF ACTIONS
Catchwords: Negligence – personal injury in course of employment – plaintiff under a disability – whether limitation period should be extended – prejudice resulting from delay
Legislation Cited: Accident Compensation Act 1985; Limitation of Actions Act 1958 (Vic); Evidence Act 2008
Cases Cited:Delai v Western District Health & Anor [2009] VSC 151; Welsh v Adecco Industrial Pty Ltd & Ors [2017] VSC 44; Tsiadis v Patterson (2001) 4 VR 114; Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104; Prince Alfred College Incorporated v ADC [2016] HCA 37; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Gordon v Norwegian Capricorn Line (Aust) Pty Ltd [2007] VSC 517
Judgment: Application granted.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Smith QC with Ms C Willshire | Zaparas Lawyers |
| For the Defendant | Ms F Ryan with Mr T Storey | Wisewould Mahony |
HER HONOUR:
Preliminary
1 Mrs Caliskan claims to have been subjected to repeated acts of sexual harassment, verbal abuse, bullying, racism and physical intimidation, during the course of her employment with the defendant, from 1998 until 2008. Mrs Caliskan alleges that she made repeated complaints in relation to such treatment, and that the defendant’s response to these complaints was inadequate. Mrs Caliskan suffered a severe psychiatric reaction as a result of this treatment. She ceased work in June 2008, and has not worked since. In April 2019, Mrs Caliskan’s daughter, Nadiye, was appointed as her Litigation Guardian, as her general practitioner was of the opinion that Mrs Caliskan was unable to understand the nature of the legal advice given to her in this matter.
2 There is a six-year limitation period for the issuing of a common law claim for an injury suffered by a worker in the course of employment.[1] However, Mrs Caliskan’s Writ was not issued until 5 April 2017. In circumstances where the defendant has raised a limitations defence, and where it is agreed her claim is statute barred, in order for Mrs Caliskan to proceed with her common law claim, she must first obtain an extension of time from this Court.
[1]Section 5(1)(a) Limitation of Actions Act 1958 (Vic) (“LAA”).
3 For the reasons which follow, having considered all of the relevant factors, I am satisfied that it is just and reasonable to grant Mrs Caliskan an extension of time.
Background relevant to Mrs Caliskan’s claim
4 A multitude of documents were tendered in this matter, including affidavits from Mrs Caliskan, her daughter, Nadiye, her current solicitor, Ms D Moodley, and the defendant’s solicitor, Mr S Jacobs. I have summarised the factual evidence as follows:
Date Event 1998 Mrs Caliskan commenced her employment with the defendant. In her Amended Statement of Claim, Mrs Caliskan alleges that she was subject to incidents of harassment, intimidation and abuse over the course of her employment.
10 September 2007 Mrs Caliskan alleges that she complained to her “manager” about “Steve” verbally abusing her.
27 March 2008 Mrs Caliskan alleges that she complained to her “manager” about the conduct of an employee named “Vito”, in relation to a photo and comments about her daughter.
26 May 2008 Mrs Caliskan alleges that she complained to her “manager” about “Vito’s” conduct, in relation to comments about her daughter.
Unknown dates Mrs Caliskan alleges that “Darrell” hugged her and that “Clare” made a number of racist remarks.
6 June 2008 Mrs Caliskan ceased her employment with the defendant.
26 June 2008 Mrs Caliskan completed a Worker’s Claim Form for Compensation. In this Claim Form, Mrs Caliskan stated that in April 2008, she reported her condition to “Jamie,” general manager, and Paul Xtrios.
28 July 2008 The defendant obtained a Circumstances Investigation Report. This report included unsigned witness statements from factory manager, Darrell Cupples, team leader, Karuna Akmeemana, and production manager, Bozidar (Chris) Matkovic. It also attached contemporaneous records, including emails from Mr Cupples, and a chronology said to have been “provided with defendant’s managing director Mr Jamie Brown”.
5 August 2008 Mrs Caliskan’s claim for weekly payments and medical expenses was accepted.
Approximately 2008-2010 Mrs Caliskan instructed solicitors, Maurice Blackburn. 20 July 2010 Mrs Caliskan completed a Claim for Impairment Benefits in relation to a psychiatric injury suffered throughout the course of her employment.
6 June 2011 A Medical Panel determined that Mrs Caliskan suffered a 20 per cent whole person impairment.
18 July 2011 Mrs Caliskan signed a Worker’s Response Form indicating she accepted the Medical Panel’s decision.
Approximately 2012 Mrs Caliskan conferred with a barrister in relation to her possible common law claim. At some point after this consultation, Mrs Caliskan was advised that her solicitors would not act on a “no-win/no-fee” basis and that she would need to pay between $40,000 and $70,000 in legal fees.
28 September 2012 Maurice Blackburn wrote to Mrs Caliskan, confirming her instructions not to proceed with a common law claim. Maurice Blackburn also “reiterated” their previous advice as to the six-year limitation period. This letter stated that Mrs Caliskan had until 28 February 2014 in which to commence such a claim. (“limitations letter”).
Approximately 2014 Mrs Caliskan’s weekly payments of compensation were terminated. Nadiye assisted her in referring this decision to the Medical Panel, following which Mrs Caliskan’s payments were reinstated.
3 February 2017 Nadiye contacted Zaparas Lawyers and spoke to Ms D Moodley. During this conversation, Ms Moodley said that she also spoke to Mrs Caliskan, who informed her that she had previously been through the impairment benefit process with Maurice Blackburn and had conferred with a barrister.
17 July 2017 Ms Moodley met with Mrs Caliskan for the first time.
7 September 2017 Mrs Caliskan swore an affidavit in support of her Serious Injury Application. In this affidavit, Mrs Caliskan detailed numerous comments made to her by co-workers, but did not identity anyone by name.
14 September 2017 Mrs Caliskan’s Serious Injury Application was lodged with the Victorian WorkCover Authority.
9 January 2018 The defendant advised that it accepted that Mrs Caliskan satisfied the definition of “serious injury”, within the meaning of the Accident Compensation Act 1985.
23 May 2018 A Writ and Statement of Claim were filed.
22 June 2018 The defendant filed a Defence, which pleads a limitations defence.
23 April 2019 Mrs Caliskan’s general practitioner, Dr Sam Auteri, provided a medical report, stating that Mrs Caliskan did not have the ability to understand any legal advice or the psychological capacity to give appropriate instructions. Dr Auteri stated that, in his opinion, Mrs Caliskan had suffered this incapacity for the past five to six years.
24 April 2019 Nadiye was appointed as Litigation Guardian.
24 April 2019 Section 23A Application listed for hearing.
Oral evidence
5 Only Mrs Caliskan and Nadiye were required for cross-examination.
6 It was apparent from Mrs Caliskan’s presentation and her oral evidence that she understood very little of the legal process, and in particular, her common law claim. Mrs Caliskan said that she knew nothing about WorkCover when she was first injured, and that she was initially assisted by her union. Mrs Caliskan accepted that she signed the documents relating to her impairment benefit claim. However, she said that she did not understand her impairment benefit claim or the reason for which she had signed the documents.
7 Mrs Caliskan also denied having any knowledge of a limitation period within which she was required to bring a common law claim. She denied having ever read the limitations letter and said that her daughter took care of her legal affairs. Mrs Caliskan believed that she had attended all legal appointments with her daughter, and said that she did not understand the legal advice given to her by her solicitors. Mrs Caliskan said that she simply did whatever she was instructed by her daughter, including the signing of documents.
8 Mrs Caliskan said that she recalled conferring with a barrister and “saying everything again, I really got emotional, I left crying, that’s all”. She was unable to recall the advice given to her by the barrister, as she was “really pretty bad” at the time.
9 Mrs Caliskan said that her memory has worsened in the last few years, and that she has no recollection of speaking with Ms Moodley on the telephone in February 2017, or meeting with her in July 2017.
10 Nadiye also gave oral evidence in the course of the proceeding. She confirmed that she had attended all of her mother’s legal appointments, following which she explained the legal advice to her mother. Nadiye confirmed that she had read the limitations letter to her mother, and had tried to explain its contents, but said that it was apparent her mother did not understand the legal advice contained therein. At a later point in the course of her evidence, Nadiye said of her mother, “she’s there in her body, but her mind’s not there, it’s like you’re talking to an empty person”.
11 Nadiye explained that Maurice Blackburn quoted legal costs between $40,000 and $70,000 in relation to her mother’s case, and said that her family decided they were not in a position to afford such costs. She said that her mother’s condition continued to gradually worsen, such that her family made the decision to investigate whether or not there was any alternative help available. Nadiye said that she first contacted Zaparas Lawyers in approximately late 2014 or early 2015, at which time she was advised that they did not handle psychological injury claims. Nadiye said that she did not then contact any other law firms, as her father was insistent that they use Zaparas Lawyers. In February 2017, Nadiye again contacted Zaparas Lawyers, at which time she spoke with Ms Moodley, who suggested that she obtain her mother’s former file from Maurice Blackburn.
12 I considered Nadiye to be a credible witness. I accept that she endeavoured to assist her mother with her legal claim, and that she was a relatively young woman at that time. I found the description she gave in relation to her mother’s declining mental health, and the difficulties she experienced in terms of understanding the legal process to be compelling, and I accept her evidence without reservation.
Mrs Caliskan’s disability
13 In April 2019, Nadiye was appointed as her mother’s Litigation Guardian, to act on her behalf in this matter. However, in support of her application for an extension of time, it was submitted that, for practical purposes, Mrs Caliskan had been under a disability for many years prior to the formal appointment of a Litigation Guardian.
14 In support of this submission, I was referred to the opinion of Mrs Caliskan’s general practitioner, Dr Auteri, who considered Mrs Caliskan’s incapacity to have persisted for the last five to six years – thus commencing at some point in 2013 or 2014.
15 Mrs Caliskan’s counsel submitted, however, that Mrs Caliskan’s incapacity has likely persisted for a greater period of time, given the nature of her evidence, together with Nadiye’s evidence in relation to the legal advice given to her mother in 2012. I accept Nadiye’s evidence that her mother has never properly understood the nature of the common law claim being pursued on her behalf. In addition, I accept that Mrs Caliskan did not understand the advice given to her in approximately 2012, in relation to the limitation period. Notwithstanding that she does not have any medical training, and that she was relatively young at the time she was assisting her mother with her legal claim, I consider Nadiye’s observations as to her mother’s limited capacity to be persuasive, given the close nature of their relationship.
16 The defendant disputed that Mrs Caliskan’s incapacity has persisted for the last five to seven years, and instead relied upon the opinion of psychiatrist, Associate Professor Peter Doherty, following his examinations of Mrs Caliskan in February 2017 and November 2017.
17 In his first report dated 7 March 2017, Professor Doherty detailed Mrs Caliskan’s allegations regarding the treatment she received at work, and her emotional and psychological state since ceasing work in 2008. Professor Doherty noted that Mrs Caliskan heard “voices” two to three times a week, and that, about five years ago, she had seen a ghostly figure walk past her window. Professor Doherty noted that Mrs Caliskan was attending a psychiatrist, Dr Geoffrey Hogan, once a month, and that she had discussed her ongoing suicidal thoughts with him. Mrs Caliskan was noted as taking medication on a daily basis, including Lexapro.
18 Professor Doherty diagnosed Mrs Caliskan as suffering a Major Depressive Disorder.
19 In his second report dated 20 December 2017, Professor Doherty detailed Mrs Caliskan’s presentation at that time, noting that she continued to hear voices a few times a week and that she continued to have suicidal thoughts. Professor Doherty considered there to have been a progressive evolution of Mrs Caliskan’s symptoms, and noted that she was, by that stage, reporting a wide array of psychotic phenomena. Professor Doherty did not consider Mrs Caliskan to be suffering a psychotic condition, but was of the opinion that her insight and judgement were impaired by a psychiatric cause.
20 In a supplementary report dated 8 May 2019, Professor Doherty confirmed his opinion that Mrs Caliskan had the capacity to understand the legal advice given to her, as at his examination in February 2017. He stated that, by November 2017, she was troubled and preoccupied, and that a psychotic experience had interfered with her thinking. In offering this opinion, I note that Professor Doherty did not clearly identify any additional symptoms Mrs Caliskan experienced, or the differences in her thinking as between February and November 2017. In such circumstances, I am not therefore assisted by Professor Doherty’s opinion as to when Mrs Caliskan’s disability is likely to have arisen.
21 The defendant also relied in part upon Ms Moodley’s affidavit, which stated that she had spoken with Mrs Caliskan in February 2017, at which time Mrs Caliskan advised her that she had been through the impairment benefit process with her previous solicitors, Maurice Blackburn, and that she had met with a barrister at some stage. I note that Mrs Caliskan could not recall this conversation. In circumstances where Nadiye gave evidence that she had called Zaparas Lawyers and spoken with Ms Moodley, and where Mrs Caliskan has a poor memory and a general lack of understanding as to legal matters, I consider it unlikely that Ms Moodley conveyed such information to Mrs Caliskan at that time. It is possible that Ms Moodley is simply mistaken as to who actually conveyed this information to her in the phone call. In any event, if this conversation did occur in the manner in which Ms Moodley has now deposed, I do not consider it to detract in any way from my overall finding that Mrs Caliskan had a very limited capacity to understand the legal advice given to her in this matter.
22 For the reasons stated above, I am most assisted by the report of Mrs Caliskan’s general practitioner, Dr Auteri, and the observations of her daughter, Nadiye, that Mrs Caliskan’s disability has persisted for much of the relevant period of delay I must consider in this application.
What is the relevant period of delay?
23 The parties were in agreement that the relevant period of delay in this application commenced on the day that the cause of action accrued. However, the parties were in disagreement as to the duration of the delay, and the last date upon which to consider the relevant period of delay. Mrs Caliskan submitted that the relevant date was 14 September 2017, being the date her Serious Injury Application was lodged. If I were to accept this submission, the relevant period of delay would be approximately nine years and three months. The defendant submitted that the relevant date was 24 April 2019, being the date the application for an extension of time was first sought. If I were to accept this submission, the relevant period of delay would be approximately 10 years and 10 months.
24 In support of its submission, the defendant made reference to the decision of Delai v Western District Health & Anor,[2] in which Beach J held that the relevant period of delay is the time between the accrual of the cause of action and the date upon which the application is made to extend time.[3] However, I note that this was a medical negligence claim, in which there was no mandatory pre-issue exchange of information between the parties.
[2][2009] VSC 151 at [22]
[3]Ibid at [22]
25 I prefer the approach taken by T Forrest J in In Welsh v Adecco Industrial Pty Ltd and Ors,[4] in which it was held that the relevant period of delay is the period between the accrual of the cause of action and the date upon which the plaintiff submits a Serious Injury Application pursuant to s134AB of the Accident Compensation Act 1985. This decision recognised that a defendant is provided with information in relation to the claim at the time such an application is served. The WorkSafe Ministerial Guidelines dictate that, in order to issue a valid Serious Injury Application, the application must include, amongst other documents, an affidavit of the plaintiff, together with a draft Statement of Claim.[5] The application must then be served upon the Victorian WorkCover Authority, who acts on behalf of the defendant.
[4][2017] VSC 44
[5]WorkSafe Ministerial Direction: Actions for Damages (revised), 2016
26 In this instance, the defendant alleged that Mrs Caliskan’s serious injury affidavit was not sufficiently particularised so as to enable it to fully understand the case against it. Whilst I accept that the affidavit did not name any of the people from whom Mrs Caliskan alleges she suffered harassment or intimidation, I am satisfied that the service of the Serious Injury Application at that time was sufficient for the defendant to understand the general nature of the claim against it, such that, from that time, it could have taken steps to defend itself against the claim.
27 Therefore, in this case, I am satisfied that the relevant period of delay which I must consider is 6 June 2008 until 14 September 2017.
Is it just and reasonable to extend the limitation period?
28 In determining whether it is just and reasonable to grant Mrs Caliskan an extension of time, s23A(3) of the Limitation of Actions Act 1958 requires that I have regard to all of the circumstances of the case, including the following matters:
“(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.”
29 This list of factors is not exhaustive, nor should each of the individual factors be weighed against the other. In an application of this kind, the court must endeavour to “synthesise a number of competing considerations in arriving at a conclusion that takes account of them all”.[6]
[6]Tsiadis v Patterson (2001) 4 VR 114 at [33]
Relevant factors to consider
30 I shall now consider those factors in s23A(3) which are relevant to this case.
(a) The length of and reasons for the delay on the part of the plaintiff
31 I consider the length of the delay in this case to be relatively modest, in comparison to other reported cases involving applications for an extension of time under s23A.
32 There appear to be two factors relevant to Mrs Caliskan’s delay in this proceeding. The first being that she was initially required to pay significant legal fees in order to pursue her claim. The second being that she had an impaired ability to understand the legal advice given to her at that time, including advice in relation to the limitation period. Accordingly, in such circumstances, Mrs Caliskan did not action her claim in time, nor did she seek to obtain alternate legal advice from a solicitor who may have been prepared to act for her on a no win no fee basis.
33 It was not until 2017, when Nadiye contacted Zaparas Lawyers for a second time, that steps were taken on behalf of Mrs Caliskan to pursue her common law rights. From the time that Zaparas Lawyers were first instructed, I am satisfied that the claim was pursued with sufficient haste.
34 In closing, the defendant submitted that Mrs Caliskan’s daughter was assisting her mother throughout this process, and that, in explaining the legal advice to her mother, Mrs Caliskan was made aware of her legal rights.
35 I do not accept this submission. On the evidence before me, I do not accept that Mrs Caliskan understood her legal claim or the nature of the legal process in which she was involved, notwithstanding Nadiye’s efforts and explanation. Further, I am not persuaded that any potential failure on Nadiye’s part, to seek alternate legal advice at an earlier time, can be fairly attributed to Mrs Caliskan, in circumstances where she herself was incapacitated.
36 The defendant referred me to a decision of Ipp AJA in Itek Graphix Pty Ltd v Elliott,[7] in which it was stated that a deliberate decision to allow a limitation period to expire “would be a powerful factor against the grant of leave”. In the circumstances of this case, however, I am not satisfied that there was any such deliberate decision by Mrs Caliskan not to proceed with her claim.
[7][2002] NSWCA 104 at [91]. See also Prince Alfred College Incorporated v ADC [2016] HCA 37 at [106]
37 I am satisfied that Mrs Caliskan did not understand the common law process and did not appreciate the limitations advice given to her by reason of her impairment. Therefore, in considering this application, I consider the length of and reason for the delay to be factors in Mrs Caliskan’s favour.
(b)The extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant
38 The defendant submitted that it had suffered both presumptive and actual prejudice as a consequence of Mrs Caliskan’s delay in this proceeding.
39 In this case, there has been a delay of over nine years. Whilst I have categorised this delay as being relatively modest, it is a delay nonetheless. As a result, I accept that the defendant suffers presumptive prejudice of a general nature, having regard to the extent to which the memories of those involved in this claim will have faded with the passage of time.
40 The defendant also relied upon its failed attempts to locate the following witnesses to demonstrate actual prejudice:
(i) Mr Brown, the defendant’s general manager, to whom Mrs Caliskan claims she complained;
(ii) Mr Xtrios, an OH&S representative, to whom Mrs Caliskan claims she complained;
(iii) Mr Matkovic, the defendant’s plant manager, to whom Mrs Caliskan claims she complained.
41 Whilst I accept the absence of these witnesses must prejudice, to some degree, the defendant’s ability to defend this claim, I am not satisfied that any such prejudice cannot, at least in part, be overcome by the contemporaneous documents the defendant holds for the period in which Mrs Caliskan complained to the defendant about her treatment by co-workers. These records from 2008 comprise emails of Darrell Cupples, which detail his actions at the time he investigated Mrs Caliskan’s complaints. There is also a very detailed chronology, written in the first person, by an unknown author. The investigator’s report describes this chronology as being “provided with Mr Brown.” These detailed business records would be prima facie admissible under s55 of the Evidence Act 2008 as being relevant to the proceedings.
42 Further, there is an unsigned statement of Mr Matkovic contained in the investigator’s report (together with unsigned statements of Mr Darrell Cupples and Karuna Akmeemana). In the event that Mr Matkovic remains unavailable at the time of the trial of this proceeding, this statement is also prima facie admissible under s63 of the Evidence Act.
43 The defendant’s solicitors had initially been unable to contact potential witnesses, Darrell Cupples and Karuna Akmeemana. However, as at the date of the application, the defendant no longer sought to rely upon an inability to locate or call either witness as a ground of actual prejudice.
44 The defendant’s solicitor deduced that Mrs Caliskan’s reference to “Vito” is likely a reference to Vito Blangiadro. The defendant’s solicitor spoke with Mr Blangiadro by telephone, and now submits that Mr Blangiadro alleged that he has little memory of Mrs Caliskan, and no memory of her having made a complaint against him. Whilst this inability to recall such detail is demonstrative of the presumptive prejudice suffered by the defendant, Mr Blangiadro’s memory may well be refreshed if he were shown the contemporaneous documents held by the defendant in relation to Mrs Caliskan’s complaints.
45 In Brisbane South Regional Health Authority v Taylor[8] it was noted that while the plaintiff bears the onus in respect of satisfying the court that an extension of time should be granted, there is an evidentiary onus on a defendant if it seeks to claim actual prejudice.[9]
[8](1996) 186 CLR 541
[9](Supra) at 547, 566-567
46 There is mention in numerous contemporaneous documents of a man named Joel Paul, who was a co-worker of Mrs Caliskan. There is no evidence before me that he is unavailable.
47 Having considered such evidence in its entirety, whilst accepting that there is both presumptive and actual prejudice suffered by the defendant in this matter, there are several critical witnesses and numerous contemporaneous documents available which enable the defendant to defend this matter. I do not consider any prejudice to be so significant that a fair trial is not possible.
(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
48 No submissions were made in respect of this factor.
(d) The duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action
49 As stated previously, I am satisfied that Mrs Caliskan has been under a psychological disability since, at the earliest, 2012 or, at the latest, 2014. For the time that her disability persisted, I am satisfied that it compromised Mrs Caliskan’s ability to pursue her common law claim within time. This is another factor in Mrs Caliskan’s favour in considering this application.
(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
50 No submissions were made in respect of this factor.
(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
51 No submissions were made in respect of this factor.
Synthesis of these competing considerations
52 In determining whether or not to grant an extension of time, I must synthesise these competing factors. I should exercise my discretion if I am satisfied that it is just and reasonable to do so.
53 As part of the synthesising process, it is necessary to consider whether or not the presumptive and actual prejudice suffered by the defendant is so great that a fair trial is not possible. It need not be an ideal trial, but one that is acceptably fair.[10] As stated above, I am satisfied that a fair trial is possible.
[10]Gordon v Norwegian Capricorn Line (Aust) Pty Ltd [2007] VSC 517 at [79]
54 In assessing this matter, I am mindful of the psychological disability which has affected Mrs Caliskan for a significant period of time. I am satisfied that this disability is a very significant contributing factor in Mrs Caliskan’s decision not to pursue her common law claim within time. I am also mindful that, if an extension of time is not granted, Mrs Caliskan will have no further entitlement to claim damages for the injury she claims to have suffered as a result of the defendant’s negligence, during the course of her employment.
55 Having considered all of the relevant factors, I have concluded that it is just and reasonable for Mrs Caliskan to be granted an extension of time in this case.
56 I shall make the consequent orders.
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