Christopher Ball v Commonwealth of Australia

[2002] ACTSC 129

CHRISTOPHER BALL v COMMONWEALTH OF AUSTRALIA [2002] ACTSC 129

(20 December 2002)

CATCHWORDS

LIMITATION ACT - extension of time - personal injuries claim - absence of

contemporaneous medical records - actual prejudice to defendant

Limitation Act 1985 s 36(2), 36(3)(a)

Safety Rehabilitation and Compensation Act 1988 (Cth)

Supreme Court Rules 061A r 1 (z)

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Georgiadis v Australian Overseas Telecommunications Corporation (1994) 179 CLR 297

Moon v Moon [2001] FCA 1712

Jones v Dunkel (1959) 101 CLR 298

No. SC 540 of 1995

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 20 December 2002

IN THE SUPREME COURT OF THE        )

)   No. SC 540 of 1995

AUSTRALIAN CAPITAL TERRITORY     )

BETWEEN:     CHRISTOPHER BALL

Plaintiff

AND:              COMMONWEALTH OF

AUSTRALIA

Defendant

ORDER

Coram:   Master T. Connolly

Date:   20 December 2002

Place:   Canberra

THE COURT ORDERS THAT:

1. The notice of motion of 18 September 2002 is dismissed

2. Plaintiff to pay the defendants costs.

1. This is an application by way of notice of motion of 18 September 2002 to extend time pursuant to s 36(2) of the Limitation Act 1985 to enable the plaintiff to bring a claim for damages for personal injuries arising from an industrial accident which occurred on 18 February 1987. The plaintiff commenced proceedings in this court on 9 August 1995, and the Commonwealth has pleaded by way of defence that the action is barred pursuant to the Limitation Act, which requires a claim for damages for personal injuries to be commenced within 6 years of the accident.

2.           The plaintiff alleges that in February 1987 he was employed by the Commonwealth in the Department of Territories as a drainer, and that while he was lifting and lowering a prefabricated sump top at a worksite at O'Connor in the Australian Capital Territory he suffered personal injuries by way of a lower back injury. The defendant has accepted liability for the purposes of the Safety Rehabilitation and Compensation Act 1988 (Cth), the Commonwealth workers compensation regime, but has denied common law liability.

3. The Limitation Act 1985 provides that a claim for damages for personal injuries should be brought within six years in the Australian Capital Territory, but the Court may extend a limitation period in a personal injuries claim if it is "just and equitable " to do so pursuant to s 36(2) of the Act. This is a power that may be exercised by the Master (Supreme Court Rules 061A r 1 (z)). The Limitation Act provides guidance as to the exercise of the discretion conferred by s 36(2) as follows:

"s36(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 fom the generality of the foregoing) the following:

a) the length 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 conduct of the defendant after the cause of action occurred to the plaintiff including the extent (if any) to which the defendant took 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 or she 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 or she may have received.

1. The delay from 1987 to 1995 in commencing proceedings would in many cases itself amount to a substantial obstacle, but in this case the plaintiff is able to provide an explanation for the length ofthe delay sufficient, it seems to me, to get over the hurdle of s 36(3)(a). In an affidavit of 11 September 2002 he says that he has had persistent lower back pain since the accident, and has been on long term workers compensation payments. He said that there were a number of attempts to return him to work, but these were unsuccessful. He says that in July 1991, which is within the limitation period, he attended at a firm of solicitors to seek advice on the prospects of a claim for damages, and was advised that, under the provisions of the Safety Rehabilitation and Compensation Act 1988 (Cth) his cause of action had been statute barred. This was a correct understanding of the law at that time.

1. He says that he did not seek any further legal advice until April 1994, shortly after the High Court handed down its decision in Georgiadis v Australian Overseas Telecommunications Corporation (1994) 179 CLR 297. The Court there held that the provision in the Safety Rehabilitation and Compensation Act 1988 that purported to extinguish common law claims was invalid to the extent that it amounted to an acquisition of property without compensation. The effect of this decision was that those persons who had a cause of action against the Commonwealth arising from a workplace accident at the date of commencement of the Act, which included the present plaintiff, were able to bring their claim.

2. The plaintiff in April 1994 wrote through his solicitors to the Commonwealth giving them notice that a claim would be brought, and seeking their agreement that, given the decision in Geordiadis, the Commonwealth would not object to the claim being brought out of time. The Commonwealth in May 1994 indicated that it would rely on the Limitations Act defence.

3. I am satisfied that the plaintiff has a good explanation for the delay in bringing the proceedings, being the effect of the Commonwealth legislation, and the need to await the decision of the High Court before commencing proceedings. Although there was a further delay between reactivating the matter and formally commencing proceedings, the plaintiff did in April 1994, within months of the decision of Geordiadis, advise the Commonwealth of his intention to proceed.

1. Having explained the delay, the real issue in this case, it seems to me, is the question of prejudice. The issues at the trial of this action, in addition to the question of liability, will involve an attribution of the plaintiffs present disabilities between the 1987 accident which he seeks to sue upon, and a 1984 industrial accident when he fell off a truck while moving sump box frames, and injured his back. He does not seek to sue on this accident. While the Commonwealth has accepted that this was also a compensable accident, the records of the Commonwealth do not go into the question of the relative impact of the two accidents, as this was not a material consideration in determining his eligibility for Comcare payments.

1. The plaintiff in an affidavit of 10 October 2002 says that in the 1984 accident he hurt his lower back and was diagnosed by his then general practitioner, Dr Jolley, with a bruised back. He says that he had time off from work on compensation from 22 March 1984 to 6 April 1984, but thereafter returned to full duties, which included heavy lifting, with no problems. He says that he also had physiotherapy with Mr Davis.

1. An affidavit from Ms Murnain, a solicitor with the Australian Government Solicitor, dated 28 November 2002 states that Ms Murnain caused notices of non-party production to be issued to Dr Jolley. No records were produced. She also deposed that Mr Davis, the physiotherapist, died some 15 years ago and the records of his practice are only retained for 7 years, so no records are available of those physiotherapy visits.

1. Mr Ball in his affidavit states that following the 1987 accident he attended Dr Ong as his general practitioner, and Dr Allen and Dr McNichol as specialists. He also attended Dr Corry for one consultation. He attended Dr Duncan, a rheumatologist, in about 1991, and an osteopath, Mr Lallemand, as well as acupuncture from the Sports Medicine Centre in Turner. Mr Ball in the conclusion of his affidavit states "I have no reason to believe that any of my treatment providers would not have retained the medical notes relating to me", but he does not positively depose to their existence.

1. Ms Murnain deposes that notices for non party production indicate that there are no records in existence from Dr Ong, Dr Duncan and Mr Lallemand, or the Sports Medicine Centre in Turner.

1. In relation to liability, Ms Simpson of the plaintiffs solicitor filed an affidavit of 11 October 2002 which annexed a copy of the claim form for the 1987 accident, which identified M Vella and C Anderson as witnesses, and V Ball as the supervisor. She said that Mr Ball told her that M Vella is working in a managerial position for ACTEW, C Anderson has ceased work, and M Vella is working as a drainer in Canberra. There is no evidence in the plaintiffs' case beyond this as to whether these persons still have any recollection of the event.

1. There is an affidavit from a Mr Mandalis, a liability consultant, filed in the defendant's case of 28 November 2002. Mr Mandalis says that he has contacted Mr Vincent Ball, who said that he was not on site when the plaintiff was injured in 1984 or 1987 and has no knowledge of either accident. Mr Mandalis also says that he contacted Mr Anderson who at first said that he was unable to discuss his recollection of the incident, and then said

   "It is unlikely I will be able to provide you with any meaningful information in any event. "

1. In relation to prejudice, the law which governs the exercise of my discretion is that laid down by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. McHugh J there said at 555 that :

   "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 plaintiffs right ofaction at the end of that period. When a defendant is able to prove that he or she will now not 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. "

1. The effect of the decision in Brisbane South Regional Health Authority v Taylor is, it seems to me, that the legislature makes a presumption that the passage of time will prejudice a defendant in being able to achieve a fair trial, but that an applicant for an extension of time may bring evidence that satisfies a court that there is no presumptive prejudice. Where actual prejudice is established, however, Mc Rugh J said ( at 555)

   "the justice ofa plaintiffs claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reasons of delay in commencing the action, is unable to fairly defined itself or is otherwise prejudiced in fact. "

1. The effect of this was summarised by the Full Federal Court in Moon v Moon [2001] FCA 1712 where Miles and Stone JJ said

   "In accordance with principle, the plaintiff had to show that, despite that prejudice, the defendant was not denied the prospect of a fair trial of the issue of the nature and extent of the plaintiffs disability (if any) and associated symptoms."

   That is to say, the presumption of prejudice , in the absence of any evidence of actual prejudice, casts an onus on the plaintiff to prove that the defendant can still have a fair trial. The defendant has the onus to establish actual prejudice.

1. It seems to me that the evidence that the plaintiff has put on in this case could, in the absence of evidence from the defendant, be taken to discharge the onus to displace the presumption of prejudice. The plaintiff deposes to his medical treatment, and asserts that he has no reason to believe that the records are not available, but he does not positively assert that they are available. Ms Simpson deposes that the plaintiff knows the whereabouts of three witnesses to the 1987 accident, but does not say whether any of these witnesses have any recall. In the absence of any evidence of actual prejudice, this might be sufficient.

1. The defendant has however put on evidence to show that certain important medical records are no longer available, including the notes from the treating general practitioners for the 1984 and 1987 accidents, and contemporaneous physiotherapy and specialist notes. This, it seems to me, establishes actual prejudice. The task at trial, assuming liability to be established, would be to determine to what extent the plaintiffs present condition is related to the 1987 work accident. The plaintiff sustained a back injury in 1984. There is extant and annexed to Ms Murnain's affidavit a medical report of Dr Ong, the treating general practitioner, of 1 June 1987 in which she says

   “It is probable that the low back pain was an exacerbation of his previous injury. ”

   This further reinforces the importance at trial of the relationship between the two accidents. The absence of the contemporaneous medical evidence deposed to in the affidavit of Ms Murnain discharges the onus on the defendant to establish actual prejudice, and there is nothing in the plaintiff s case to rebut this.

2. The defendant has also, it seems to me, established a degree of actual prejudice in that it shows that two of the persons identified as witnesses to the 1987 accident have no recollection. Counsel for the plaintiff made the submission that the absence of any evidence from the defendant in relation to any recollection that Mr Vella might be able to give should enable me to draw the inference that the evidence would not assist the defendants’ case (Jones v Dunkel (1959) 101 CLR 298). I do not think that this is an appropriate situation for such an inference. It is for the plaintiff to rebut the presumption of prejudice, and all the plaintiff has done is to say that he thinks he knows that Mr Vella still works in Canberra. The plaintiff has not put on evidence that Mr Vella has any recall of the accident, and in this sense the inference could be drawn both ways. I make no inference either way on this matter, and determine the matter solely on the evidence put on by way of affidavit.

3. On all of the evidence, it seems to me, the defendant has established that  theCommonwealth would be unable to fairly defend these proceedings because the contemporary medical records are not available. In these circumstances, it seems to me, the application to extend time must be refused. In so doing, I note that these accidents both occurred while the plaintiff was an employee of the  Commonwealth, and that he has been and remains on Comcare benefits, which to  date have amounted to a total of $451,688, of which some $85,630 have been by  way of medical expenses. Although he has not been able to discharge the  evidentiary onus to allow me to permit him to bring common law proceedings in  2002 in relation to a 1987 accident, he is not left without compensation, as his  statutory rights remain and continue.

4. The notice of motion is dismissed with costs.

I certify that the preceding twenty two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly
Associate:
Date: 20 December 2002
Counsel for the Plaintiff:	Mr R. Crowe
Solicitor for the Plaintiff:	Ken Cush & Associates
Counsel for the Defendant:	Mr D. Mossop
Solicitor for the Defendant:	Australian Government Solicitor
Date of hearing:	29 November 2002
Date of judgment:	20 December 2002