Collopy v Parks Victoria
[2024] VCC 159
•10 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-20-05851
| PETER ANDREW COLLOPY | Plaintiff |
| v | |
| PARKS VICTORIA (ABN 95337637697) | Defendant |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 20, 27 and 28 November 2023 and 2 February 2024 | |
DATE OF JUDGMENT: | 10 April 2024 | |
CASE MAY BE CITED AS: | Collopy v Parks Victoria | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 159 | |
REASONS FOR JUDGMENT
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Subject:Limitations of actions
Catchwords: CIVIL PROCEDURE – Whether limitations defence should be struck-out – where single cause of action for course of employment – when cause of action accrued – whether extension of time should be granted
Legislation Cited: Accident compensation Act 1985; Limitation of Actions Act 1958; County Court Civil Procedure Rules 2018
Cases Cited:Bell Radiology (A Firm) v McGraw (unreported, Victorian Supreme Court of Appeal, 31 July and 1 August 1995 and 7 February 1996, Tadgell, Ormiston & Callaway JJA); Central Electricity Board v Halifax Corporation [1963] AC 785; Tregilgas v Victorian WorkCover Authority (Ruling) [2021] VCC 1780; Drew v Patricks Stevedores Holdings Pty Ltd (No 2) [2017] VSC 352; Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 ; Berry v Stone Manganese & Marine Ltd [1972] 1 Lloyd’s Rep 182; Cartledge v E Jopling & Sons Ltd [1962] 1 QB 189; Cartledge v E Jopling & Sons Ltd [1963] AC 758; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Tsiadis v Patterson (2001) 4 VR 114; Davies v Nilsen [2015] VSC 584; Myer Melbourne Ltd v Hammond [1984] VR 40; Lovejoy v Carp [1999] VSC 223; Tavsanli v Phillip Morris (Australia) Ltd (unreported, Supreme Court of Victoria, 18 September 1989, Young CJ); Arisoy v Yoogalu Pty Ltd [2012] VSC 631; Transport Accident Commission v Murdoch [2020] VSCA 98; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517; GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; Kone Elevators Pty Ltd v Popa [2006] VSCA 26; WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2) [2020] VSC 639; Van Gerven v Amaca Pty Ltd [2012] VSC 131; GGG v YYY [2011] VSC 429; Repco Corp Ltd v Scardamaglia [1996] 1 VR 7
Judgment: Extension of time granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Saunders with Mr P Haddad | Arnold Thomas & Becker |
| For the Defendant | Mr R Kumar with Ms J Clark | Wisewould Mahony |
HER HONOUR:
1Between December 2006 and December 2013, Peter Collopy worked for Parks Victoria as a tracks ranger on the Great Ocean Walk. It was a heavy, physical role and included tasks such as walking long distances carrying loads; brushcutting; digging; chainsawing; evacuating injured hikers; building maintenance; and toilet cleaning. Mr Collopy says that, as a result of his duties, he has suffered permanent injury to his back, both knees, left and right hands and wrists, and left shoulder.
2In this proceeding, Mr Collopy has brought a claim for pain and suffering damages against Parks Victoria. His claim is for negligence and breach of statutory duty occurring during the “course of his employment” between December 2006 and December 2013.[1]
[1] Amended Statement of Claim, filed 27 November 2023, paragraphs [5], [8] and [9]
3Parks Victoria has raised a limitation defence to Mr Collopy’s claim.[2] It claims that any causes of action accrued in around 2007 or in mid to late 2008, and no later than 27 February 2011. Even allowing for the operation of s134ABA of the Accident Compensation Act 1985 (which for practical purposes pauses time while an impairment benefit claim is pursued), it says that Mr Collopy’s claim was made more than six years after a cause of action accrued within the meaning of s5 of the Limitation of Actions Act 1958 (“Limitation Act”).
[2] Defence to Amended Statement of Claim, filed 28 November 2023, paragraph [12]
4By his amended summons filed 1 November 2023, Mr Collopy has brought two applications. First, Mr Collopy contends that Parks Victoria’s limitation defence must fail, given the causes of action that he pursues in this proceeding did not accrue until his employment concluded in December 2013. Accordingly, he contends that the limitation defence should be struck out. Alternatively, assuming that his causes of action did accrue in early 2007; he applies for an extension of time under s23A of the Limitation Act.
Part 1 – the application to strikeout the limitation defence
Parties’ submissions
5Mr Collopy submitted that he was entitled to plead a single cause of action, arising as a result of the performance of work duties over the entire course of his employment. He relied upon the decision of the Victorian Supreme Court of Appeal in Bell Radiology (A Firm) v McGraw:[3]
“… To regard the statement of claim as raising multiple or alternative causes of action is in my opinion, however, to misapprehend the nature of the proceeding. Although each of para3, para4 and para5 refers to physical injury to the respondent, I should not regard any of them as alleging a cause of action complete in itself. An essential allegation - perhaps the cardinal allegation - made by the respondent is stated in para9 of the statement of claim, namely that ‘by reason of the matters aforesaid the plaintiff suffered injury, loss and damage’. There follow particulars of personal injury, loss of earning capacity and special damage. These items of injury, loss and damage were intended, as it seems to me, to be alleged as ingredients of a single cause of action upon which the respondent relied and without proof of at least some of which ingredients the claim in tort would not be complete. In Karatzidis v Victorian Railways Commissioners [1971] VR 360 (an industrial accident case in which, co-incidentally, the plaintiff claimed damages for injury caused to his back in the course of his employment in two separate incidents, one in 1966 and one in 1967) the Full Court observed, at 365-366, that – ‘... the particulars of demand in this case alleged alternative causes of action. They were, however, all allegations of negligence, with the particulars of negligence being stated as if they were new and different causes of action. This method of pleading is, as this Court has said on previous occasions in recent years, apt to be confusing and misleading in the conduct of the trial, and we think it should be dropped. In reality, in cases of this kind there is only one cause of action, namely, a cause of action for negligence, it being alleged that there has been a failure to take reasonable care for the safety of the employee. In our opinion, in the interests of conducting with propriety this class of litigation, cases of this kind should be pleaded simply and straightforwardly as cases of negligence.” (Emphasis added)
[3]Unreported, VSCA, 31 July and 1 August 1995, 7 February 1996, Tadgell, Ormiston & Callaway JJA
6Mr Collopy submitted that a cause of action arising from the course of employment did not accrue until it was complete and that this did not occur until “every existing fact which, if traversed, it would be necessary for the plaintiff to prove”[4] had occurred. He submitted that, as he had pleaded a single cause of action which continued throughout the duration of his employment, his cause of action did not accrue until the last day of that employment. Accordingly, he submitted, he was within time and the limitation defence was misconceived and should be struck out. Mr Collopy relied in support of this submission on the decision of Judge Misso in Tregilgas v Victorian Workcover Authority (Ruling).[5] That case also concerned a claim by an employee for damages for a single cause of action said to arise from work duties performed over the course of his employment. Judge Misso ultimately struck out the limitation defence, having determined that the plaintiff’s cause of action was not complete until he ceased work in February 2014. It was only then, Judge Misso held, that “the plaintiff knew of all of the facts necessary for him to prove to support his right to a judgment”.[6]
[4]Central Electricity Board v Halifax Corporation [1963] AC 785, 806 (per Lord Guest)
[5][2021] VCC 1780
[6] Tregilgas v Victorian Workcover Authority (Ruling) (ibid) at paragraph [18]
7Parks Victoria, on the other hand, submitted that Tregilgas was incorrectly decided. It submitted that any cause of action accrued when Mr Collopy first suffered compensable injury. It accepted that the time at which compensable injury was suffered was a “matter of fact and degree”, but contended that, on the evidence given on Mr Collopy’s summons application, this occurred sometime between early 2007 and 2008. It submitted that, once compensable injury had occurred, time commenced to run, and it mattered not that the employer’s breach of duty was continuing and the injury further aggravated.[7] Accordingly, Parks Victoria submitted, Mr Collopy was out of time (and its limitation defence should not be struck out).
[7] See, for example, Transcript (“T”) 40, Lines (“L”) 9 ꟷ T41, L19
8Parks Victoria relied, in support of its submission, upon the decision of Ierodiaconou AsJ in Drew v Patricks Stevedores Holdings Pty Ltd (No 2).[8]Again, the claim in that case was pleaded as a single cause of action for injuries arising over the course of the plaintiff’s employment. However, in that case, Ierodiaconou AsJ concluded that the cause of action accrued when the plaintiff first suffered compensable injury and:
“… It matters not that his cause of action in negligence enlarged to include further incidents and injuries over the course of his employment. Those further incidents and injuries did not have the effect of stopping time from running after it commenced in November 2002.”[9]
[8][2017] VSC 352
[9](Ibid) at paragraph [25]
Consideration
9Twenty-two years ago, the majority of the High Court issued a stern warning to trial judges who might otherwise be tempted to determine limitation defences on an interlocutory basis:
“We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question. … .”[10]
[10] Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 at 533
10With the greatest respect to both Ierodiaconou AsJ and Judge Misso, the difficulty in reconciling their decisions provides a stark illustration of the dangers of attempting to determine substantive limitation questions in an interlocutory hearing.
11Rule 23.02 of the County Court Civil Procedure Rules 2018 provides that a pleading (or part of a pleading) may be struck out only where it:
(a) does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c) may prejudice, embarrass or delay the fair trial of the proceeding, or
(d) is otherwise an abuse of the process of the Court.
12Further, Rule 23.04(2) provides that, on the hearing of such an application, no evidence is admissible.
13Mr Collopy could only succeed in his application for strikeout if he could establish that (on the face of the pleadings and without recourse to evidence) Parks Victoria’s limitation defence was wholly without merit. This would require me to finally determine (based solely on my reading of Mr Collopy’s Statement of Claim) the date on which his cause of action accrued. Mr Collopy has pleaded a single cause of action for breach of duty that he claims continued throughout the course of his employment. No doubt, he hopes to succeed on this claim in its entirety at trial. He may do so. Or he may be wholly unsuccessful. Or he may be only partially successful – for example by showing that Parks Victoria breached its duty for only some of the period of his employment, or by showing that only part of his claimed injuries were causally related to a breach of duty. If this occurs, he may be out of time, even if it is accepted that his cause of action accrued only when all elements of the cause of action are complete. The mere assertion in a pleading that the claimed breach of duty continued throughout the course of employment cannot be sufficient to preclude reliance on a limitation defence. To reiterate the words of the majority in Wardley, currently:
“… insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question”.[11]
[11]Ibid
14This is sufficient to determine Mr Collopy’s strikeout application, which must be dismissed. However, in deference to the submissions made by the parties, and acknowledging the uncertainty created by apparently conflicting decisions, I will make a few additional remarks:
(a) there is a valid distinction to be drawn between the date on which “a” cause of action accrued (which may well be when compensable injury is first suffered) and the date on which “the” cause of action accrued, which is the language used by s5 of the Limitation Act. “A” cause of action may well arise when compensable injury first arises. However, the limitation period only commences to run upon the accrual of “the” cause of action – i.e.: the cause of action upon which a plaintiff would otherwise succeed in obtaining relief. The touchstone for all recovery cannot be the first moment that “a” cause of action accrued. To find otherwise would be to render an injustice upon employees who suffer the ongoing consequences of breaches of an employer’s duty which continue throughout the course of employment. It would also require the Court (including potentially a jury) to engage in impracticably difficult questions of fact and degree in determining the moment when compensable injury first occurred, particularly if the serious injury threshold in the Workplace Injury Rehabilitation and Compensation Act 2013 (“WIRCA”) and its predecessors[12] must also be taken into account;
(b) there are two possible ways to treat a single, course of employment cause of action for the purpose of limitation periods:
(i)given the single, unitary nature of the cause of action as endorsed by the Court of Appeal in Bell Radiology, “the” cause of action does not accrue until the cessation of breach-causative-of-injury (typically, but not always, the last day of employment); or
(ii)despite the pragmatic endorsement in Bell Radiology of the pleading of a course of employment claim as a single cause of action, that action may be severed for the purposes of limitation periods, and an employee may claim damages for breach-causative-of-injury where the injury was suffered within the relevant limitation period, but not for breach-causative-of-injury completed prior to that period;
(c) I lean towards the second of these possibilities, which is more in tune with conventional limitation analysis in relation to continuing torts;[13] best upholds the policy behind limitation periods; and reduces the incentive for disputes (of the kind which have been foreshadowed in this case) as to whether a cause of action is genuinely a single course of employment cause of action or a multiplicity of causes of action arising from discrete incidents. In appropriate cases, the artificiality of severing a single course of employment cause of action may also be overcome by an extension of time under s23A. However, neither party contended for this second approach. Accordingly, I have not had the benefit of detailed submissions on this issue. It is preferable that I do not express a concluded view.
[12] In the present case, the applicable statute was the Accident Compensation Act 1985
[13]See, for example, Berry v Stone Manganese & Marine Ltd [1972] 1 Lloyd’s Rep 182, a case concerning industrial deafness due to negligent failure to provide ear muffs, in which Ashworth J said at page194: “I hold that the claim in respect of matters ante-dating Apr.2, 1967, is statute barred. This conclusion does not mean that the claim fails completely, because the defendants’ negligence continued after that date and the plaintiff’s hearing became worse as a result.”; see also Cartledge v E Jopling & Sons Ltd [1962] 1 QB 189 at 207 (per Pearson LJ) (upheld on appeal – Cartledge v E Jopling & Sons Ltd [1963] AC 758).
Part 2 - Extension of time
15Having dismissed Mr Collopy’s application for a strikeout, I turn to his application for an extension of time under s23A of the Limitation Act.
16For the purposes of this application, Mr Collopy asked the Court to assume that his cause of action accrued in early 2007; and to grant an extension sufficient to ensure that the entirety of his claim was brought within time. This is a pragmatic means to overcome the concerns raised by Wardley in relation to finally determining limitation issues in an interlocutory proceeding.
17Section 23A empowers the Court, if it considers it just and reasonable, to extend the period within which an action may be brought for such period as it determines.[14] The Court may exercise its power to extend at any time ꟷ the limitation period need not have expired.[15] There are important policy considerations underlying Parliament’s decision to impose limitation periods. Mr Collopy bears the onus of establishing that justice requires an exception to the usual rule that a limitation period should be applied. As stated in Brisbane South Regional Health Authority v Taylor:[16]
“In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. … .”[17]
[14] Section 23A(2)
[15] Section 23A(4)
[16](1996) 186 CLR 541
[17] (Ibid) at 553
18In considering whether to exercise the discretion to grant an extension of time, the Court does not weigh the relevant factors against each other.[18] Rather, the Court performs an exercise of “synthesis of competing considerations underpinned by the proposition that the plaintiff bears the onus of persuasion”.[19]
[18] Tsiadis v Patterson (2001) 4 VR 114 at 123, paragraph [33]
[19] Davies v Nilsen [2015] VSC 584 at paragraph [44]
19Section 23A(3) of the Limitation Act lists factors which must be considered by the Court:
(a) the length of and reasons for the delay on the part of Mr Collopy;
(b) the extent to which, having regard to the delay, there is, or is likely to be, prejudice to Parks Victoria;
(c) the extent, if any, to which Parks Victoria had taken steps to make available to Mr Collopy means of ascertaining facts which were, or might be, relevant to the cause of action of Mr Collopy against Parks Victoria;
(d) the duration of any disability of Mr Collopy arising on, or after the date of, the accrual of the cause of action;
(e) the extent to which Mr Collopy acted promptly and reasonably once he knew that the act or omission of Parks Victoria, to which the injury of Mr Collopy was attributable, might be capable at that time of giving rise to an action for damages; and
(f) the steps, if any, taken by Mr Collopy to obtain medical, legal or other expert advice, and the nature of any such advice he may have received.
20Of these, the principal relevant factors in this case were the length of the delay and any explanation for it; and the prejudice suffered by Parks Victoria by reason of that delay. The availability of a cause of action against Mr Collopy’s former solicitors was an additional factor addressed in the course of the hearing.
21I will address each relevant factor in turn.
The length of and reasons for the delay on the part of Mr Collopy
Parties’ submissions
22Mr Collopy accepted that the relevant period of delay was from early 2007 until the lodgement of Mr Collopy’s serious injury application on 1 July 2020, however he submitted that he had given instructions to enforce his rights in late 2016 and delay after that point in time ought to be attributed to his solicitors, rather than to him. As to delay prior to that time, he claimed to have a satisfactory explanation:
(a) he was engrossed in an employment dispute with Parks Victoria which consumed his attention and led to him developing significant psychiatric issues; and
(b) his injury was a progressive, work-process injury, for which it was reasonable to adopt a “wait and see” approach.
23Parks Victoria submitted that the delay between the accrual of the cause of action in 2007 and the making of Mr Collopy’s serious injury application in 2020 (approximately thirteen years) could fairly be described as “inordinate”. It submitted that it was presumed that substantial prejudice arose from such inordinate delay and that, as a result, the quality of justice would be diminished.[20] It submitted that there was an “opacity of the picture concerning [Mr Collopy’s] role in the delay”[21] and that no satisfactory explanation had been provided for it. It relied particularly upon:
[20]Myer Melbourne Ltd v Hammond [1984] VR 40; Lovejoy v Carp [1999] VSC 223 at paragraph [64]; Tavsanli v Phillip Morris (Australia) Ltd (unreported, Supreme Court of Victoria,18 September 1989, Young CJ)
[21] Arisoy v Yoogalu Pty Ltd [2012] VSC 631 at paragraphs [40]-[41]
(a) Mr Collopy’s knowledge of the WorkCover system and access to legal advice, given he:
(i)had been involved in a negligence claim against a former employer in the late 1980s which settled in 1990;
(ii)had lodged a number of Workcover claims throughout his employment with Parks Victoria;
(iii)had access to representation and support from his union; and
(iv)had access to advice from four different law firms from 2014;
(b) the specific advice he received about common law rights and limitation periods:
(i)from Slater and Gordon Lawyers on 15 February 2015; and
(ii)from Ms Dimitra Panagopoulos on 26 August 2015;
(c) his failure to call evidence from former lawyers other than Ms Panagopoulos or his union representatives;
(d) the unsatisfactory nature of the evidence of Ms Panagopoulos;
(e) the inconsistency between his claim to be impaired by psychiatric issues and his ability to:
(i)work for Parks Victoria until December 2013;
(ii)review and compile detailed documents in relation to his work-related issues; to engage with union representatives and instruct lawyers in relation to those issues; and
(iii)participate in proceedings seeking weekly payments and medical and like expenses in late August 2016;
(f) the implausibility of his claim that he did not want to lodge a WorkCover claim as he was concerned it may affect his ability to be promoted, when he was simultaneously claiming to have made approximately thirty verbal complaints about capacity issues and unsafe working conditions; and
(g) the implausibility of his claim that he did not know that he could lodge a worker’s compensation claim in respect of a ‘course of employment’ claim, as opposed to a discrete incident.
Consideration
24I accept Parks Victoria’s submission that the period of delay in this proceeding can fairly be regarded as inordinate; and of a kind which is likely to have resulted in substantial prejudice to Parks Victoria.
25I also accept Parks Victoria’s submission that the particular explanations Mr Collopy gave during oral evidence for his delay in submitting a WorkCover claim (that he was not aware he could make a WorkCover claim for a course of employment injury, and that he did not want to put in a WorkCover claim because it would impede his chances of promotion) were implausible. It is telling that these explanations were not relied upon by counsel for Mr Collopy in closing submissions. Mr Collopy has, throughout his history, demonstrated an intellectual capacity and willingness to enforce his legal rights and seek assistance in doing so. That history included:
(a) a WorkCover claim in the 1980s for a back injury;
(b) a claim for damages for his back injury in 1990, which was resolved with the assistance of lawyers;
(c) a WorkCover claim in 2007 for an insect sting;
(d) a period in 2009 when he was on higher duties as a team leader;
(e) a WorkCover claim in 2011 for his back injury;
(f) a WorkCover claim in late 2012 for stress and anxiety;
(g) approximately thirty verbal requests by him to rangers in charge, acting rangers in charge, the district chief ranger and the regional manager, for more resourcing and in relation to the unsafe work environment between 2007 and 2013;[22]
(h) access to support and advice from union representatives in relation to his claims against Parks Victoria from at least 2014 (and perhaps much earlier)[23]; and
(i) access to advice from lawyers from at least May 2014.
[22]T82, L22 ꟷ T84, L16; T87, L21 – T89, L22
[23] See for example, T252, L15-21 and T253, L15-23
26As he himself agreed, he knew that, if he had a medical condition that was related to his employment, he could make a WorkCover claim and that if that claim was accepted it would cover him in relation to medical treatment and time off work.[24] Mr Collopy did not come across as a person who was reticent about coming forward with complaints or enforcing entitlements.
[24] T79, L29 ꟷ T80, L3
27I also accept that Mr Collopy had symptomatic injuries to his back, knees and shoulder as early as 2007. If he wished to make a claim against his employer for these injuries, he had the ability to access the advice and support necessary for him to do so. That he did not do so was a choice.
28Having said that, I do not find that Mr Collopy was telling deliberate untruths when he asserted that he did not make a WorkCover claim for his injuries because of a fear it would impede his chances of promotion, or because he was unaware that he could claim for course of employment injuries. Rather, it is likely he has created an after-the-event rationalisation for his failure to complain of his injuries to his employer at an earlier date. There may be many reasons for his failure to put in a WorkCover claim, including that he was focused on other grievances, or that the injuries were not, at that time, serious, or that he did not genuinely believe them to be solely work related.
29However, the primary relevant delay considered for the purposes of this application is not the delay in lodging a WorkCover claim, but the delay in bringing a serious injury application (and then common law proceedings for damages). This delay must be considered in the full context of Mr Collopy’s employment and the statutory regime in place during the course of that employment. Mr Collopy could only recover damages for his physical injuries if he established that he had a serious injury.[25] A serious injury is, relevantly, a permanent serious impairment or loss of a body function. The making of a serious injury application inherently indicates a desire by an employee to sue their employer. A worker could not reasonably be expected to make a serious injury application (or commence proceedings) upon first experiencing symptoms. Mr Collopy’s injuries did not prevent him performing his normal duties for any exteded period of time, aside from a period in 2011-2012, when he was off work and then on light duties because of his back injury; and a period in 2012 when he was off work due to his shoulder surgery. There is no evidence of any medical opinion being provided (during the course of his employment) to the effect that his physical injuries were permanent and untreatable. It was not until 2012 that he had shoulder surgery; and not until 2017 that he had a knee reconstruction.
[25] Accident Compensation Act 1985, s134AB
30I accept that it is likely that Mr Collopy did not consider his physical injuries to be sufficiently serious to justify taking steps to commence legal proceedings against his employer until after he ceased employment. I am satisfied that this was reasonable in the circumstances.
31By 2013, Mr Collopy was embroiled in an industrial/discrimination dispute against Parks Victoria. As part of that dispute, he claimed to have suffered psychiatric injury from bullying and racial discrimination in the workplace. The evidence was that this psychiatric injury, and consequent deterioration in Mr Collopy’s mental health, dated back to at least December 2012.[26] By December 2013, he had ceased working because of his psychiatric injury.[27]
[26]Plaintiff’s first affidavit, sworn 30 June 2022, paragraph [8] at Plaintiff’s Court Book (“PCB”) 42; T280, L5-27; Defendant’s Court Book (“DCB”) 481-484
[27]T133, L1-3
32Several medical reports prepared for the purposes of this industrial/discrimination dispute have been tendered in evidence. The weight of the tendered medical evidence is to the effect that Mr Collopy was suffering from an adjustment disorder with mixed anxious and depressed mood. One of the symptoms repeatedly referred to in these reports was Mr Collopy’s obsessional focus upon his industrial complaint against Parks Victoria:
(a) Mr Collopy’s treating psychologist (who began treating him on 3 January 2014) prepared a report dated 26 March 2014. She noted:
“[Mr Collopy’s] observed and self-reported symptomology at that time were sleep disturbance, significantly increased levels of agitation, lack of motivation and energy, lowered mood, increased anger and frustration, heightened sensitivity and markedly negative thinking. While [Mr Collopy] reported high levels of hopelessness and helplessness to do with his work situation, his indigenous cultural beliefs appear to have acted as a protective factor and have prevented him from experiencing meaninglessness. [Mr Collopy] also reported impaired cognitive functioning, in particular difficulties with memory, organisation and concentration, as well as muscle tension, muscle spasms and chest pains.
Currently, while there has been some stabilisation in mood, [Mr Collopy] continues to report elevated levels of agitation, increased anger and frustration, social withdrawal, impaired cognitive functioning including difficulties with memory, organisation and concentration, and heightened sensitivity.
Therefore, my working formulation based on these self reported symptoms and test results is that [Mr Collopy] is experiencing severe levels of stress, accompanied by moderately high levels of depression.”;[28]
[28]PCB 124
(b) her subsequent report, dated 6 July 2016, records:
“… his obsessional thinking about his treatment by Parks Victoria, [Mr Collopy] continues to report marked agitation, anger and frustration, social withdrawal, impaired cognitive functioning (including difficulties with memory, organisation and concentration), heightened sensitivity, and reduced levels of energy and motivation.”;[29]
[29]PCB 127-128
(c) in a report dated 18 February 2014, Dr Richard Prytula, a psychiatrist engaged by Parks Victoria, concluded:
“He can be said to have an Adjustment Disorder with mixed Anxious and Depressed mood of mild severity. This may have arisen from alleged workplace factors or it may be part of his own issues in relation to the employer or the conditions. This is not clear yet.
He has a limited work capacity.
His prognosis is guarded as he is so engrossed in what he feels are wrong decisions that have affected him that these may take quite some time to resolve and for the adverse effect of these on his psychological well-being to reduce.”;[30]
[30]PCB 137
(d) in a report dated 12 May 2015, Dr Carol Newlands, a consultant forensic psychiatrist engaged by Parks Victoria, agreed with Dr Prytula’s diagnosis and noted:
“… he is constantly ruminating about the reported issues to the extent that he cannot focus on anything else for any period of time.”;[31]
[31]PCB 150
(e) Medical Panel reasons provided on 18 September 2018, record:
“The Panel concluded that [Mr Collopy] is suffering from a moderately severe chronic major depressive disorder. The Panel noted the previous Panel's assessment, which concluded that [Mr Collopy] is suffering from a chronic adjustment disorder with mixed anxiety and depressed mood, relevant to the accepted psychiatric injury. The current Panel reached a different conclusion based on its assessment of [Mr Collopy] and considered that [Mr Collopy] is presenting with symptoms consistent with a diagnosis of a chronic major depressive disorder, of moderate severity.
The Panel considered the nature and extent of [Mr Collopy’s] psychiatric condition and the functional restrictions which it causes. The Panel noted [Mr Collopy’s] level of agitation, preoccupation, low mood and disturbed sleep pattern in the context of limited treatment and concluded that [Mr Collopy] is incapable of undertaking his preinjury duties, or any other work. The Panel concluded that the nature and extent of [Mr Collopy’s] psychiatric condition is such there is no work for which [Mr Collopy] is currently suited and which he could perform on a reliable and consistent basis. The Panel therefore concluded that [Mr Collopy] has no current work capacity.”;[32]
[32]PCB 203
(f) Associate Professor Peter Doherty, a psychiatrist retained by Parks Victoria, in his report dated 13 January 2016, recorded:
“… He was highly obsessional, introspective man, with a tinge of mistrust and a need to talk in detail about the events that shaped his emotional state. He was at pains to emphasise that he has been treated and managed poorly by the employer. He related appropriately, warmly and comfortably. There was no distress, perturbation, tears, anguish or agitation demonstrated or evident during the course of the interview and psychiatric examination. He was highly focused and very obsessional. There was a mild paranoid flavour flowing through what he said. He came across as a man on a cause. … .”;[33]
(g) he continued:
“He is an eccentric character. There is more than the usual amount of obsessionality with more than the usual paranoid flavour. He tends to be introspective, ruminate and have difficulty dealing with issues because of that.”[34]
[33]DCB 512
[34]DCB 515
33The views of the medical experts were also corroborated by the observations of his lawyer, Ms Panagopoulos, from August 2015:
“…his focus was solely on his sense of grievance and injustice…there was a sense that he was, um, unduly focussed, perhaps, ah, on – on certain issues, and that any, um, effort to resolve those would have been very beneficial to him.”[35]
[35]T184, L30 ꟷ T185, L8
34I find that, on and from at least late 2012, Mr Collopy was suffering from an adjustment disorder with mixed anxious and depressed mood and that a feature of this disorder was an obsessional pre-occupation with his industrial complaint against Parks Victoria, to the exclusion of other matters. Parks Victoria pointed to the volume of material created by Mr Collopy in relation to his industrial claim as evidence of his capacity to pursue his claims for physical injury. I find that that volume of material was, itself, a symptom of the psychiatric disorder from which Mr Collopy was suffering. I accept that this obsessional pre-occupation continued from late 2012 until at least 27 March 2016, when his industrial complaint was resolved, and that it provides an explanation for his delay in bringing proceedings for his physical injuries.
35I also consider that it was reasonable in the circumstances (including the adjustment disorder described above), for Mr Collopy to rely upon the advice of his legal advisers in relation to the timing of the bringing of any serious injury application.
36I accept that Mr Collopy was provided written advice about the existence of limitation periods for common law claims in a letter from Slater and Gordon dated 20 February 2015. This was a letter exclusively addressed to dealing with Mr Collopy’s claim for mental injury. It also warned of the need to establish both a serious injury and cause of action in negligence to bring a claim.
37I also accept that Mr Collopy requested Ms Panagopoulos (his penultimate solicitor) to act on his behalf in relation to his WorkCover claim for psychiatric injuries, and his industrial/discrimination claim, in a meeting held on 25 August 2015. As a result, he was provided written advice about the existence of limitation periods in a letter from Ms Panagopoulos dated 26 August 2015. At the time of writing that letter, Ms Panagopoulos had accepted a retainer to act for Mr Collopy in his WorkCover claim for his psychiatric injuries and was considering acting for him in relation to his industrial/discrimination dispute with Parks Victoria. The letter appears to be a standard form letter, which contains scant details specifically referrable to Mr Collopy. It contains sections on statutory benefits, medical and like expenses, impairment benefits, serious injury applications and common law claims. It stresses the need to both pass the serious injury threshold and establish negligence. Under the heading “Serious Injury Application”, it states “Such applications must be made before the expiration of six (6) years from the date of injury”.[36]
[36] PSCB 29
38I accept that, by about late September 2015, Ms Panagopoulos also acted for Mr Collopy in relation to his physical injuries. However, there is no direct evidence that a formal letter of advice in relation to any limitation period applicable to the physical injuries was sent. Under cross-examination, Ms Panagopoulos gave vague evidence about what she would, or must have, or guessed, that she had done, however she had no direct recollection of having sent a such a letter of advice. I am not prepared to infer that one was sent.
39Mr Collopy gave evidence that the first he heard of limitation periods was in a Zoom conference with Mr Walsh of counsel and Ms Panagopoulos in mid-2020. Given the reference to limitation periods in the 20 February 2015 letter from Slater and Gordon and the 26 August 2015 letter from Ms Panagopoulos, I do not accept this evidence is reliable. However, there is a real difference between receiving general information in a retainer letter about the existence of limitation periods for common law claims; and receiving specific advice from a lawyer that a particular claim needs to be brought by a particular date. There is no evidence that Mr Collopy received specific advice that the limitation periods applicable to his physical injuries may have expired or be about to expire. To the contrary, Ms Panagopoulos gave evidence that the advice he would have received from her in relation to his physical injuries was that his limitation period had not expired and he should await the outcome of his surgeries and impairment benefit claims before proceeding with a serious injury application.[37] There is no reason to suppose he was given any different advice from any of the other lawyers he consulted.
[37] Oral evidence of Ms Panagopoulos, particularly at T210-212.
40Ms Panagopoulos sent Mr Collopy an impairment benefits form to complete in October 2015. His impairment benefit claim was not made until 18 July 2016. There is no evidence as to the reason for this delay. Ms Panagopoulos was unable to explain it, other than to say she recalls that she was focused on two other matters. If there had been any delay by Mr Collopy in returning the form, it was incumbent upon Ms Panagopoulos to chase him for it, particularly given his psychiatric issues, of which she was fully aware. I do not attribute this unexplained period of delay to Mr Collopy.
41Parks Victoria submitted that the state of the evidence from Mr Collopy’s former lawyers was unsatisfactory, and the onus was upon him to bring positive evidence to the Court that he had not been provided with specific advice about his limitation periods. I do not accept this submission. The interests of Mr Collopy’s former lawyers do not necessarily coincide with those of Mr Collopy; and an extraordinary volume of material had already been included in the material before the Court. In particular, I do not accept that the failure of Ms Panagopoulos to include relevant documents in her affidavit or to bring documents to court can be attributed to Mr Collopy personally. Mr Collopy does bear responsibility for his failure to locate relevant correspondence from his lawyers among his own documents. This might have been relevant to a costs order had there been an application for an adjournment (although any such application may have been hampered by Parks Victoria’s own late production of documents), but does not undermine Mr Collopy’s explanation for delay.
42Mr Collopy was certainly not an uneducated or inarticulate worker who lacked any concept of his entitlements. Nevertheless, it is incontrovertible that the system established by the WIRCA and its predecessors in relation to impairment benefits, serious injury applications and common law claims, is complex and difficult to comprehend and navigate for even the most educated and articulate non-lawyer. Once Mr Collopy had retained Ms Panagopoulos to act as his lawyer, he was entitled to rely upon her advice and representation in relation to the specific timing of any application for impairment benefit, serious injury application or common law proceedings. In all the circumstances, I do not consider it reasonable to attribute delay after August 2015 to Mr Collopy personally.
43In conclusion, Mr Collopy has significantly delayed bringing these proceedings. It can be assumed that Parks Victoria has suffered significant general prejudice as a result. However, his delay can be explained by a combination of the reasonableness of delaying until it was apparent that an injury was sufficiently serious to justify bringing proceedings against his employer; his psychiatric condition; and his reliance upon his lawyers, particularly Ms Panagopoulos.
The extent to which, having regard to the delay, there is or is likely to be prejudice to Parks Victoria
Parties’ submissions
44As I have already noted, there is a presumed prejudice which arises in cases such as the present, where there has been a significant delay in commencing proceedings. Parks Victoria is not required to specifically prove such prejudice. Prejudice arises, not just because of the presumption that memories have faded and evidence been lost or destroyed, but also because of the oppression in allowing an action to be brought long after the circumstances which gave rise to it have passed, and when people should have been able to assume that claims could no longer be made against them.[38]
[38]Brisbane South Regional Health Authority v Taylor (supra) at 551-553
45The existence of specific prejudice may be a further relevant factor over and above the presumed general prejudice which arises from delay. In the present case, Parks Victoria submitted that I should find that it had suffered specific prejudice:
(a) Mr Collopy brought to the Court allegations of specific incidents which were causative of injury during the course of his employment, the majority of which were not reported to Parks Victoria at the time and were only described by Mr Collopy in the most general terms. Due to the passage of time, it was not possible for Parks Victoria to meet these allegations;
(b) a number of past or present employees of Parks Victoria who worked with, or supervised the plaintiff, had given evidence that they lacked recall of the specific duties and tasks performed by Mr Collopy and the resources available to him to perform those duties and tasks. Parks Victoria had lost the opportunity to make “proper and fulsome” enquiries of witnesses;
(c) despite searches, Parks Victoria had not been able to locate documents which would assist it to determine what work Mr Collopy did, when he undertook that work, whom he was working with, for how long, in what conditions, and with what resources. Parks Victoria had only been able to locate timesheets for a period between July 2008 and July 2009. The missing timesheets could have provided an account of Mr Collopy’s daily activities and may have been particularly relevant to his allegation that he engaged in long days of brushcutting up to eight days in a row;
(d) although some relevant Job Safety Analyses (“JSAs”) had been located, many had been lost over the years;
(e) more generally, Parks Victoria had lost the opportunity to investigate and respond to the allegations of specific incidents causative of injury at or about the time that those incidents occurred; and
(f) Parks Victoria had also lost the opportunity to arrange an independent contemporaneous medical examination of the plaintiff prior to November 2016.
46Although Mr Collopy accepted that there was some actual prejudice suffered by Parks Victoria, he submitted that this prejudice was “not significant”. He contended that Parks Victoria had a good deal of documentary evidence, including a number of JSAs under which Mr Collopy worked, timesheets, OHS Committee Minutes, reports of injury and training records. It also presumably had sufficient evidence to provide detailed answers to interrogatories. Parks Victoria also had available to it several lay witnesses. Those lay witnesses were not limited to the witnesses who provided affidavits in opposition to this application – Mr Andrew Gardiner, in his evidence, had referred to other possible lay witnesses. There was also a substantial body of medical evidence, including treating medical reports, an almost complete set of clinical records and many medico-legal reports dating back to 2016.
Consideration
47In considering the question of specific prejudice, I have applied the following principles.
(a) the relevant period of delay for the purpose of assessing prejudice commences from the accrual of the cause of action, rather than the expiry of the limitation period.[39] The parties have agreed, for the purposes of the s23A application, that this occurred in 2007;
[39] Transport Accident Commission v Murdoch [2020] VSCA 98 at paragraph [83]
(b) it is inherent in the requirement to assess the “extent to which…there is or is likely to be prejudice”,[40] that the Court must consider not just established prejudice, but also potential prejudice. The Court is not limited to considering only prejudice which is more probable than not to occur. Possible prejudice, and the likelihood it will occur, is also a relevant factor;[41]
[40]Section 23A(3)(b) of the Limitation Act
[41] Tsiadis v Patterson (supra) at 120, paragraph [23]
(c) considering the likelihood that there can be a fair trial may elucidate the gravity of the prejudice suffered by the defendant. Thus, in Davies v Nilsen,[42] J Forrest J cites the following passage from his earlier decision in Gordon v Norwegian Capricorn Line (Australia) Pty Ltd:[43]
“…in determining whether there is significant prejudice, what is to be considered is whether there can be a fair trial. A fair trial does not mean an ideal trial, but one that is ‘acceptably fair’. A Court has to make an assessment of what might occur at the trial in terms of whether an acceptably fair trial can be had. The applicant must satisfy the Court that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely. … .”;
(d) the loss of relevant evidence will not necessarily render a trial unfair. In the recent decision of GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore,[44] the High Court explained:
“As Bell P observed in Moubarak, ‘the absence of a witness or witnesses who may be regarded by a party as important, whether through death, illness, loss of memory or inaccessibility ... will not mean that a fair trial cannot be obtained’. Nor does the loss or unavailability of other evidentiary material mean that a trial will be unfair. Thus in R v Edwards, the Court said:
‘Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair.’”;
[42] (Supra) at paragraph [108]; see also at paragraph [110]
[43]Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517 at paragraph [79]; applied by J Forrest J in Daviesv Nilsen (ibid) at paragraphs [108] and [110].
[44](2023) 97 ALJR 857
(e) however, it does not follow that an extension of time should be granted whenever it is established that a fair trial can be had. This would set the bar far too low for the exceptional relief of an extension of time under s23A. Rather, a fair trial may be described as the irreducible minimum. When considering an application under s23A of the Act, the Court must determine whether it is satisfied that it is just and reasonable to grant an extension of time having “regard to all of the circumstances of the case”,[45] including each of the enumerated factors in s23A(3). One of those factors is prejudice caused by reason of the delay, including prejudice which falls short of the kind which could prejudice a fair trial.
[45]Tsiadis v Patterson (supra) at 122-123, paragraph [31] (per Buchanan JA); see also at Kone Elevators Pty Ltd v Popa [2006] VSCA 26 at paragraph [35]
48In the present case, Parks Victoria did not contend that it could not have a fair trial. However, I accept that it has suffered significant specific prejudice as a result of the delay. Memories of relevant employees have faded. Timesheets, JSAs and other documentary records of the duties performed by Mr Collopy have been lost. It is now too late for Parks Victoria to conduct a full investigation of specific incidents or to obtain a contemporaneous medical report or radiological investigations.
49On the other hand, it is also relevant to consider the evidence that Parks Victoria has retained. Parks Victoria relied upon the evidence of Mr Gardiner, who is currently employed by Parks Victoria as a ranger team leader and was Mr Collopy’s team leader for a period of between six to eight months. His affidavit, sworn 4 July 2022, includes the assertion that:
“Given the passage of time, I am unable to recall what work [Mr Collopy] did, when, with whom, for how long, in what conditions and with what resources, in the period from when he started in 2006.”[46]
[46]DCB 25
50Although I accept that Mr Gardiner lacked recall of the duties performed by Mr Collopy on any particular day or week, it was apparent from Mr Gardiner’s oral evidence that he retained a good understanding of the nature of the duties performed by Mr Collopy. He certainly felt himself able to comment on what was within Mr Collopy’s duties and what was not. For example, he disagreed that Mr Collopy performed six hours of brushcutting and provided a detailed explanation for this disagreement.[47]
[47]T321, L3 ꟷ T322, L6
51Parks Victoria tendered affidavits from two other employees who gave very general evidence about a lack of recollection “about the specifics of the duties undertaken by [Mr Collopy] in the period 2006-2012”. There is no evidence that they were questioned about any of the details of Mr Collopy’s claim or asked about any of the specific incidents relied upon by Mr Collopy. Self-evidently, a person’s recollection may be refreshed when prompted by specific and directed questioning. Several other employees were named during the course of evidence as having supervised Mr Collopy, but there was no evidence of the state of their recollections of relevant events.
52Parks Victoria also retained many JSAs relevant to the duties performed by Mr Collopy. Mr Gardiner gave detailed evidence about JSAs and their role at Parks Victoria. He explained that there were between ten to thirty base JSAs and that JSAs were adapted for each role, with the core of the JSAs staying the same. I accept that Parks Victoria no longer holds an exhaustive set of all JSAs and that it may not now be possible to identify, with certainty, the specific JSAs used by Mr Collopy. However, considering Mr Gardiner’s evidence, the JSAs that have been retained provide substantive evidence of the likely content of JSAs which governed the duties performed by Mr Collopy.
53Parks Victoria also has incident reports for at least some of the incidents relied upon by Mr Collopy. Although not complete, Parks Victoria also has access to a substantial body of relevant contemporaneous clinical records and radiology.
54Finally, while on the one hand the generality of Mr Collopy’s allegations may make it difficult for Parks Victoria to respond to them, on the other, that generality may make it difficult for Mr Collopy to discharge his burden of proving negligence and causation.
55Overall, I accept that Parks Victoria has suffered specific prejudice as a result of the delay, in addition to presumed general prejudice. This is a highly relevant factor. However, Parks Victoria also has access to a very significant body of evidence in the form of lay witnesses, medical experts, documentary records and clinical notes. The specific prejudice suffered by Parks Victoria falls well short of the sort that would threaten the fairness of any trial that is held.
56As Keogh J said in WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2):[48]
“The defendant is entitled to a fair trial, not a perfect one. Relevant evidence has been lost. However, a substantial body of evidence remains, only part of which has been uncovered by investigations undertaken to date…”
[48][2020] VSC 639 at paragraphs [94] and [204]. See also Kone Elevators Pty Ltd v Popa (supra), bearing in mind that this was not an application for an extension of time under s23A of the Limitation Act.
The extent, if any, to which Parks Victoria had taken steps to make available to Mr Collopy means of ascertaining facts which were or might be relevant to the cause of action of Parks Victoria against Mr Collopy
57This is not a relevant factor in the circumstances of this case.
The duration of any disability of Mr Collopy arising on or after the date of the accrual of the cause of action
58In Van Gerven v Amaca Pty Ltd,[49] at paragraph 49,[50] Beach J stated:
“… It now appears to have been authoritatively accepted that s20(3)(d) and s23A(3)(d)] deal with legal (as opposed to physical or mental) disability ….”
[49][2012] VSC 131
[50]. Applying GGG v YYY [2011] VSC 429 at paragraph [211]. See, further, Koumorou v The State of Victoria [1991] 2 VR 265 at [274]
59There was no evidence that Mr Collopy was under a legal disability (ie: lacked capacity) during any relevant period.
60Nevertheless, Mr Collopy submitted that Mr Collopy’s disability was a relevant factor, relying upon the decision of Repco Corp Ltd v Scardamaglia.[51] This was a decision of the Full Court of the Supreme Court. In that case, a County Court judge had granted an extension of time under s23A. One of the factors the judge relied upon was the duration of a disability suffered by the plaintiff in the form of a back injury. Smith J, who delivered the principal judgment of the Full Court, held that the judge had erred in considering that the relevant delay commenced upon the expiry of the limitation period. The Full Court set aside the judge’s decision. They then considered the application for an extension of time themselves. In doing so, they did not rely upon any finding that the plaintiff had suffered a relevant disability within the meaning of s23A(3)(d). Although not expressly criticised for his approach on this issue, given the decision of the judge was set aside by the Court, it cannot provide support for Mr Collopy’s submission.
[51][1996] 1 VR 7
61I accept that, for the purposes of s23A of the Limitation Act, “disability” means legal disability. I am not satisfied that Mr Collopy was under a legal disability at any relevant point of time. However, as I have already noted, his psychiatric condition does provide an explanation for his delay in bringing proceedings.
The extent to which Mr Collopy acted promptly and reasonably once he knew that the act or omission of Parks Victoria, to which the injury of Mr Collopy was attributable, might be capable at that time of giving rise to an action for damages
62This factor is effectively considered above in relation to delay and any explanation for it; and below, in relation to the steps taken by Mr Collopy to obtain medical, legal or other expert advice.
The steps, if any, taken by Mr Collopy to obtain medical, legal or other expert advice and the nature of any such advice he may have received
Consideration
63I have effectively addressed this factor when considering delay and any explanation for that delay. I accept that Mr Collopy received written advice in relation to the general time limits applicable to common law damages claims from both Slater and Gordon and Ms Panagopoulos. However, there is no evidence that he received any specific advice in relation to the limitation periods applicable to his claims for physical injuries.
64In relation to medical advice, although Mr Collopy sought medical treatment for his physical injuries from 2007, and was advised, on occasion, to make a WorkCover claim, there is no evidence that he received any medical advice that his injuries were sufficiently serious to justify a serious injury application, or a claim for common law damages, until at least 2015. By that stage, the timing of his application was in the hands of his lawyers.
Availability of a cause of action against solicitors
Parties’ submissions
65Mr Collopy accepted that this was a factor to be considered but contended that it should be given no weight in this case. Parks Victoria did not expressly rely upon this factor in its closing submissions.
Consideration
66As J Forrest J said in Gordon v Norwegian Capricorn Line (Australia) Pty Ltd:[52]
“…a potential claim against former solicitors is a relevant consideration, but that the question of what weight is to be given to it depends on the circumstances; a court must be careful in ascribing weight to the prospect of such a claim, given that the full circumstances surrounding such a claim may not be known. A Court may also take into account the prejudice to the plaintiff in prosecuting the claim against the solicitors as opposed to prosecuting the claim that is potentially statute barred. That prejudice may take several forms – diminution in the value of the claim as well as any added costs and the complexity of the proceeding against the former solicitor.”
[52](Supra) at paragraph [86]
67In the present case, the availability of a cause of action against Mr Collopy’s former solicitors is further complicated by:
(a) the impact of Mr Collopy’s psychiatric condition on his capacity to pursue his claim;
(b) the number of different solicitors he has consulted between May 2014 and the present time; and
(c) the difficulty in attributing the loss of the entirety of his cause of action to the breach of duty of any one solicitor.
68This factor does not weigh significantly against the granting of an extension of time.
Conclusion
69There has been a very considerable delay in the making of a serious injury application and the bringing of these proceedings by Mr Collopy. I have found that there is an explanation for that delay:
(a) it was reasonable to delay, until at least 2013, before bringing a serious injury application, given the serious injury threshold and the gravity of commencing proceedings against an employer for negligence or breach of statutory duty;
(b) from December 2012, Mr Collopy was suffering from the effects of a psychiatric disorder, which made him obsessed with his industrial claim to the exclusion of other matters; and
(c) it was reasonable of him to follow the specific advice of Ms Panagopoulos in relation to the timing of the making of impairment benefits claims and a serious injury application.
70An explanation for delay is not necessarily, in and of itself, sufficient to justify an extension of time under s23A, particularly where there is inordinate delay. Parks Victoria has suffered both general presumed prejudice and specific prejudice as a result of the delay, which must be taken into account. However, it also retains a substantial pool of evidence to draw upon in defending Mr Collopy’s claim, both written and oral. It has not been suggested that it will not have a fair trial.
71In all the circumstances, I am satisfied that it is just and reasonable to extend the limitation period to the extent necessary to permit the claims made by Mr Collopy against Parks Victoria in this proceeding to be brought. I will hear from the parties on the question of costs and the appropriate form of orders.
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