Couchman v Barwon Health

[2025] VCC 407

IN THE COUNTY COURT OF VICTORIA

AT GEELONG

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-23-01609

GLEN COUCHMAN	Plaintiff
v
BARWON HEALTH	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	16 May 2024 and 11 March 2025
DATE OF JUDGMENT:	9 April 2025
CASE MAY BE CITED AS:	Couchman v Barwon Health
MEDIUM NEUTRAL CITATION:	[2025] VCC 407

REASONS FOR JUDGMENT

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Subject:ACCIDENT COMPENSATION – LIMITATION OF ACTIONS

Catchwords:              Extension of time – reasons for delay – prejudice – acceptably fair trial

Legislation Cited:      Limitation of Actions Act 1958, s23A

Cases Cited:              Marceta v Efandis [2016] VSC 265; Sparkes v Hylemit [2016] VSC 453; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Prince Alfred College Inc v ADC (2016) 258 CLR 134; Welsh v Adecco Industrial Pty Ltd& Ors [2017] VSC 44; Tsiadis v Patterson (2001) 4 VR 114; Transport Accident Commission v Murdoch [2020] VSCA 98; Gordon v Norwegian Capricorn Line (Australia) Pty Limited [2007] VSC 517; Basil v Pugh [2024] VSCA 280; Griffiths v Nillumbik Shire Council [2022] VSCA 212; Myer Melbourne Ltd v Hammond [1984] VR 40; Arisoy v Yoogalu Pty Ltd [2012] VSC 631; Walker v Transport Accident Commission [2025] VSC 13; Volunteer Fire Brigades Victoria v CFA (Discovery Ruling) [2016] VSC 573; Davies v Nilsen [2015] VSC 584

Judgment:                  Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A D B Ingram KC with Ms F Crock	Slater and Gordon Ltd Lawyers
For the Defendant	Mr R Kumar with Ms J Clark	Wisewould Mahony

HER HONOUR:

Background

1The plaintiff was employed by Barwon Health (“the defendant”).  He claims that he suffered a spinal injury throughout the course of his employment between 8 October 2006 and 16 May 2007 (“the period of employment”) and on 16 May 2007 (“the said date”).

2Serious injury was conceded in October 2022, an application having been made on 30 June 2022 seeking leave to bring proceedings for common law damages for pain and suffering only.

3A Writ was issued 14 April 2023.

4In paragraph 6 of its Defence dated 29 August 2023, the defendant pleaded that the plaintiff’s cause of action did not accrue within six years before the commencement of this proceeding and was therefore statute barred by s5 of the Limitation of Actions Act (Vic) 1958 (“the LAA”). 

5The limitation period expired on 16 May 2013.

6By Summons dated 3 November 2023, the plaintiff seeks an order that the period within which the cause of action may be brought be extended pursuant to s23A of the LAA.

7The plaintiff swore three affidavits and gave viva voce evidence.  He was cross-examined.  He also relied on an affidavit sworn by James Dott on 16 May 2024, who was cross-examined, and an affidavit sworn by Grant Greskie on 12 February 2024.  The plaintiff also relied on affidavits of his solicitors, Slater and Gordon (“Slaters”), Gemma Waterhouse, sworn 30 October 2023, 22 January and 6 March 2024 and Audrey Gunn, sworn 24 January 2024.   

8The defendant relied on five affidavits of Caroline Harold, solicitor for the defendant, sworn 14 February, 15 and 16 May 2024 and 7 and 11 March 2025.  The defendant also relied on affidavits of Joanne Hammond, sworn 12 July 2024, Barry Daniels, affirmed 31 October 2024, Theresa Parker, affirmed 23 August 2024 and Kenneth Knocker, sworn 12 July 2024. 

9In addition, both parties relied on documents, medical reports and other material which was tendered in evidence.  I have read all the tendered material. 

Serious injury affidavit sworn 30 June 2022

10The plaintiff is currently aged forty-eight, having been born in June 1976.   He lives with his partner and their three children. 

11Having completed Year 11, he completed a building course and then worked with Telstra as a telephone technician for about six years.  His next job was delivering water for Neverfail Springs for two years and he was subsequently self-employed as a courier for a further two years.  He started work with the defendant on 6 October 2006. 

12In early 2007, he began to experience some left buttock pain which went into his left hip.  On 21 January 2007, he saw a general practitioner (“GP”) at the Myers Street Clinic in Geelong.  He was given Tramal for the pain.  He believed he saw a physiotherapist, and continued working.

13He was employed by the defendant on a permanent part-time basis as a food service delivery driver, which involved delivering trolleys containing pre-made meals from the defendant’s central kitchen located in North Geelong to the Geelong Hospital and other facilities, including nursing homes associated with the defendant.  He had to make three deliveries of meal cassettes each shift. 

14He drove a refrigerated truck which was fitted with a hydraulic tailgate.  The trolleys containing the meal cassettes were accessed through a roller door at the rear of the truck.  The roller door on the truck would often jam near the bottom when it was pulled up or down.  He needed to bend down and use considerable force to start the roller door opening and to completely close it.

15With assistance from a colleague, he would manoeuvre about twenty trolleys from the truck into the kitchen area of the facility to which he was delivering the meals with each delivery.  The trolleys were heavy and awkward and often difficult to manoeuvre.  Often the wheels on the trolleys would not roll properly and had to be pushed hard to move them. 

16Once in the kitchen area, the plaintiff was required to open the two ends of the trolley and bend and reach forward to push the cassette into the cook chill machine.  On two of the delivery runs each day, he would also have to manoeuvre the empty trolleys back into the truck and return them to the central kitchen.

17On the said date, he was closing the roller door on his truck at the end of his shift.  The roller door became stuck and he had to bend down low and use considerable force to finish closing it.  As he did so, he felt immediate pain in his lower back and left buttock (“the incident”). 

Subsequent treatment

18He underwent investigations and treatment until ceasing work in July 2007, when he could no longer cope with his back and leg pain.  On 13 July 2007, he lodged a WorkCover claim, which was accepted.  He returned to work with the defendant in mid-October 2007 on modified duties and hours. 

19Further investigations were undertaken.  He had a number of injections over the years followed by back surgery in April and September 2009. 

20He had various other roles with the defendant including theatre technician from 2009 to 2010.  He then worked as a sales representative for LifeHealthcare, selling medical equipment.  Over time, he became the national sales manager, and remained in that role for about nine years. 

21He then moved to Multigate Medical, performing similar work and managing key accounts.  Two years later, he left and started working at Getinge, which also sold medical equipment, as a business development manager.  He left after three months. 

22In mid-December 2021, he started working as a regional sales manager for Invitro Technologies, which manufacture and sell sterilisation equipment. 

Second affidavit, sworn 19 January 2024 – LAA application

23In his affidavit, he explained the reasons for the delay in commencing proceedings for the recovery of damages for his spinal injuries.  He continued to suffer from significant disability as a result of the injuries sustained and believed he acted promptly once he became aware of his legal rights.

24His claim relates to injury suffered during the course of his employment and, in particular, on 16 May 2007, when he was required to perform work duties described as follows in his Statement of Claim:

(a)   repetitive moving, pushing and pulling of heavy and awkward food service trolleys;

(b)   repetitive bending, reaching and pulling cassettes of meals into a cook/chill machine;

(c)   repetitive opening and closing of the roller door at the rear of the food services delivery truck;

(d)   “hazardous manual handling” within the meaning of the Occupational Health and Safety (Manual Handling) Regulations 1991. 

25In particular, there was the incident on the said date while undertaking the delivery of food stuffs to the main Geelong Hospital premises and other defendant facilities.  He was attempting to close the roller door on the refrigerated medium rigid Isuzu 10T vehicle supplied for his use and, as he did so, he experienced pain in his back and left buttock.

26This incident occurred at about 2.30pm.  Although he had a driver’s assistant assigned to work with him, that person was not present when he suffered the subject injuries and there were no witnesses. 

27An Incident Report dated 16 May 2007 was completed by Joanne Hammond, an employee of the defendant. 

28In his third affidavit sworn 8 March 2024, he provided particulars of complaints about the roller door on the truck getting stuck in the guide when being opened and closed.

29There were two refrigerated Isuzu 500 vehicles, one of which was somewhat older and in a more deficient condition than the other.  He drove each of the trucks, roughly splitting his time equally between the two.

30The major issues with the roller door getting stuck in the guide concerned the older of the two trucks and this was a regular problem which occurred on a number of occasions throughout each week. 

31There was no system in place for him to complete written reports in relation to these deficiencies and therefore the reports were conveyed as to the deficiencies in the roller door of this particular truck, on repeated occasions, the dates upon which he is no longer able to recall, to his direct manager and supervisor, Joanne Hammond. 

32He was unaware as to whether Ms Hammond completed written reports in relation to his oral complaints, nor was he able to state with any degree of certainty whether those oral complaints were furthered on to the general manager of food services, Ken Knocker. 

33Save as aforesaid, he is unable to say what documents were prepared in relation to the oral complaints which he made.

34Beyond the foregoing, he was aware from conversations he had had with another employee, James Dott, that he had sustained injury as a result of the roller door on the truck getting stuck in the guide, and his understanding is that a WorkCover claim was submitted in relation to the injuries Mr Dott sustained. 

Complaints

35He could not say how many times he reported deficiencies in the roller door on this particular truck to Ms Hammond.  It would be multiple – two or three times – and he could not say when in the period of employment he raised it.[1]

[1]Transcript (“T”) 35

36He would be confident his recollection of the complaint would be in the months leading up to May 2007.  It would have been two or three times in that period.  He did not have a specific recollection because he did not actually physically record it.  He would not say he was guessing.  His recollection was the process was to report it to the supervisor, and he did that on multiple occasions.  His recollection was that sometimes he reported it to Ms Hammond directly in the office and sometimes in the loading dock, though it might have been reported to her verbally.  He agreed he said “might”, and he was really just guessing when and where these conversations took place.[2]

[2]T36

37He probably also had reported to Ms Hammond that the wheels of the trolleys were problematic.  He could not give a date and a time when he actually did so, but it was his recollection it happened.[3]

[3]T37

38He was just talking about the equipment in general, which included the wheels of the trolley, which he understood was not recorded anywhere else, but he was just trying to say that Joanne Hammond was regularly on the dock.[4]

[4]T37

39He may have reported problems with other equipment to Ms Hammond, but he had 100 per cent certainty that he gave her information about damage to roller doors, although he acknowledged he was not saying he complained about trolley wheels to her – not specifically.  He had made no formal complaints.[5]

[5]T38

40He confirmed he was saying with 100 per cent confidence that he reported orally to Joanne Hammond his concerns about the roller door becoming stuck, but accepted he could only say the complaints were made in the period of employment.  He is certain that he would be reporting to her there was an issue with the doors jamming and that they needed maintenance. He had a specific recollection of a conversation when he told her that, that the roller doors were tight and they probably needed some maintenance.[6]

[6]T39

41He did not recall using lubricant on the roller door, and, if anything, they were “probably discouraged not to”.  He did not recall the door being sprayed with WD‑40 or seeing someone do it.[7]

[7]T40

42He could not say when the one specific conversation with Ms Hammond happened relative to the incident.  He could not say whether anything was done in response to what he raised, or chasing it up with Ms Hammond if nothing was done.[8]

[8]T40

43He was not aware of a typed document or a handwritten document of equipment faults in Ms Hammond’s office.  He was aware of trolleys being tagged out if they were faulty.  They were labelled.[9]

[9]T41

Incident histories

44In cross-examination, the plaintiff was taken to a number of documents and medical reports in which the incident history given by him made no mention of the roller door malfunctioning or being “stuck”. 

45An Incident Report completed on 17 May 2007 set out:

“Felt a twinge in back when closing the roller door on the back of truck.  ...  Glen felt a twinge in his lower back as he bent down to locking position.”

46He reported the incident orally to Ms Hammond, and she filled out the Incident Report.  He could not remember being in the same room when she did so, but he accepted that what was recorded was consistent with what he told her. 

47In response to the question why he did not say that the door had become stuck, the plaintiff stated:

“… as I understood it, it was well known with most of the employees there that that was a problematic roller door and I didn’t make any mention of that.”

48He then went on to say that he would have thought he would have told Ms Hammond that that is what happened, in all honesty, but what he orally gave her in the report was out of his control.  He did not see the report at the time.[10]

[10]T16

49His best recollection would be that he verbally gave instructions to Ms Hammond to fill out the report.  He would have been as clear as he possibly could be.[11]

[11]T17

50He was taken to the section in the Incident Report – “Incident Follow-Up”:

“Went through procedure and guided techniques.”

51He could not recall if anything was done to the roller door after he reported it.  He did not remember someone talking to him about the roller door opening and closing after that.  No one did.  This is the only Incident Report that he can remember.[12]

[12]T17

52The Claim Form signed by him on 13 July 2007 set out that he had reported his injury and condition to Joanne Hammond, supervisor, and Riskman – the process to report an incident to your direct supervisor who fills out the form and fills out a “Riskman”.[13]

[13]T18

53This was the only Claim Form he had submitted.  It described an injury on 16 May 2007 at 2.30.  No answer was provided for Question 16 – “What were you doing just before the incident occurred?” Question 17 – “What happened unexpectedly? Question 18 – “How exactly were you injured?”

54He accepted he told locum GP, Dr Chirawu, on 13 August 2007:

“Felt a twinge on 16 May 2007 whilst bending over to close truck door.”[14]

[14]T20

55Mr Wilde, orthopaedic surgeon, recorded, on examination on 14 August 2007:

“...  he experienced a severe pain in his low back after pulling down the roller door on his truck and then jumping off the rear step.”

56He would not have jumped.  He would have been in excruciating pain.  It might have been Mr Wilde’s interpretation, what he wrote down.[15]

[15]T21

57Dr Bowles recorded, on examination on 19 December 2007:

“He closed the roller door.  It necessitated pulling the door and pulling it down forcefully’, and … [he] got to … [his] knees and felt a crunch in … [his] low back which took … [his] breath away.”[16]

[16]T22

58He had a specific recollection of the incident because he had a significant level of pain that he had probably never felt before in his life.  This history was his recollection of what occurred.[17]

[17]T22

59Dr Davison recorded, in July 2020:

“...  on the day of the injury he was closing the rear roller door.  To latch the door he had to squat down.  He ...  felt like somebody squeezed … [his] spine ...  [and] it took … [his] breath away.”

60He recalled describing the incident exactly how it was, like someone had squeezed his spine and took his breath away.  That history was consistent with his recollection of the incident.[18]

[18]T23

61His Claim for Impairment Benefits Form was signed electronically on 4 March 2020.  He set out that on 16 May 2007:

“I was closing the roller door on the back of the truck.”[19]

[19]T24

62Slaters was acting for him at the time he completed that form, so 2020 on the form was a mistake.[20]

[20]T25

63He confirmed he told Dr Fish on examination in March 2021 that he was closing the rear roller door of his truck when he experienced an onset of lower back pain.[21]

[21]T26

64When it was suggested that until he swore his June 2022 affidavit he had not mentioned anything about the roller door jamming, he did not recall whether he had actually spoken specifically about those details.  He did not recall specifically saying those words to a doctor.  He had told doctors what he recalled at the time.[22]

[22]T28

65He recalled the door became stuck because it was an ongoing problem that he was acutely aware of over a long period of time.[23]

[23]T28

66When seen by Dr Mills in October 2022, a couple of months after his June affidavit, he told him he noticed back pain again as a result of closing a roller door on a truck which was quite stiff.

67When it was suggested he had not mentioned the roller door was “stuck” until his June 2022 affidavit, as he understood it, he gave that information from the time of the Incident Report at the very start.  He was not sure why it had not made its way into other doctors’ reports since.[24]

[24]T29

68He did not believe he had said he could not be sure whether he told Joanne Hammond the door had become stuck or not.  He thought he said that what he told her of the incident, and what she recorded in the Incident Report is out of his control.  He gave that information to her verbally, and he did not have control of how she filled out the Incident Report.[25]

[25]T30

69The truth, as he recollected it, was that he would have given Ms Hammond as much evidence as he possibly could about the report, and that in fact it was well known there were problems with that roller door.[26] 

[26]T30

70His memory, doing the best he can, is he would have spoken to her about the incident and what had happened, and then what would have caused it.  She would have asked him what would have caused it, and he would have told her.  He agreed that answer was something different to what he had said earlier.[27]

[27]T31

71When it was suggested to him his memory made it impossible to tell the Court what he actually told Ms Hammond, he said he was confident that that was what he told her, and what he reported at the time was accurate, because it was a significant moment in his life and probably changed his life forever.[28]

[28]T31

72He then agreed the highest he could say is what he thought he would have told her, but he now did not have a recollection of what he told her.[29]

[29]T32

Contemporaneous documents – second affidavit

73Documents relevant to his employment with the defendant, including contracts and agreements, are available.  He believed that medical records relevant to his case were available for production.

74He believed there were in existence contemporaneous documents which confirm the circumstances of the injury, even though it was not witnessed and they would have been produced in the context of any trial, even if held within the limitation period, and can be produced today. 

75A compensation Claim Form completed by him on 13 July 2007 referred to “lower back pain/left sciatica”, noting that he had already started to see staff GP, Dr Gasser, who worked for the defendant.  He remembered completing the form with the help of Joanne Hammond.

76He located a former fellow worker, Grant Greskie, whom believed would be in a position to give evidence relevant to the claim.

77His complete medical records, and particularly those of Dr Gasser, who was employed by the defendant as the staff GP, remained in existence.  Dr Gasser is now retired.

78His Claim Form was accepted by the insurer by letter dated 28 September 2007,  who advised that weekly payments and medical expenses would be paid.

Medical evidence

79He was aware there were a number of letters from the defendant’s treating physiotherapist, Peter Schoch, to Dr Gasser from May to August 2007.

80On 16 August 2007, Allianz sought from Dr Gasser a copy of the July 2007 lumbar MRI scan.    

81He continued to receive physiotherapy under both Mark Cheel and Peter Schoch, and with that treatment, he attempted to remain at work.

Return to work plans

82Still in existence are return to work plans implemented by the defendant, dated July, November and December 2007, August and September 2008 and January 2009. 

83He understood there were also reports from WorkCover Household Help (Occupational Therapy Assessment) dated March and October 2008, in existence.

84A vocational assessment was undertaken by Counselling Appraisal Consultants at Geelong on 13 May 2020 and their reports were available. 

85He was aware there were a series of work capacity certificates dated 11 July 2007 and 13 August 2010, which are able to be produced.

86On 18 May 2011, Allianz agreed to the ongoing payment of medical expenses. 

87A series of medical reports have also been prepared over the years, addressed to the insurer and, in particular, a report of occupational physician, Dr Bowles, dated 19 December 2007; reports of occupational physician, Dr Davison, dated 29 June and 1 July 2010; a report of occupational physician, Dr Fish, dated 18 June 2021 and a report of orthopaedic surgeon, Mr Mills, dated 12 October 2022. 

88He understood the medical records were available, detailing his treatment by his operating orthopaedic surgeon, Mr Wilde. 

89His affidavit reflected his belief that most, if not all, of the relevant history is available to be adduced in the context of his trial.

OH&S

90He understood that also available, and dating from 14 May 2007, are a series of OH&S policies implemented by the defendant, including: Hazard Identification, Assessment and Control Procedures; Incident Reporting and Notification Policy and Procedures; Environmental Safety Audits and Occupational Health and Safety Policy.

91He believed that such policies were also in place prior to that time, as his solicitor had ascertained entry reports from WorkSafe inspectors and, in particular, reports dated 9 and 16 May 2006 prepared by Inspector Kevin Ford, relating to attendances on the kitchen, canteen and kiosk areas and on the subsequent occasion, to the domestic services equipment store, loading dock for waste and linen room and, in particular, identifying hazard identification, risk assessment and risk control in regard to manual handling. 

Legal advice

92To the best of his recollection, prior to consulting his current solicitors, the only advice he had received in relation to his spinal injuries was a one-off meeting at Maurice Blackburn’s Geelong office in about September 2010.

93His recollection of that meeting was that it did not result in any advice being given as to the availability of a claim in common law damages or the need to establish serious injury.  Nor was he given any advice as to the existence of a six-year limitation period. 

94He recalled being told that he would need to see how he went in his new job and see how his recovery went.  Other than this, he had received no legal advice as to his rights to sue for common law damages to the best of his knowledge and belief.

95To the best of his recollection, there was no follow-up correspondence from Maurice Blackburn and he was left with the understanding that it would be quite some time before he would be able to pursue any claim, but he confirmed that he did not leave with any understanding of the right to bring a common law claim.

96The situation only changed in 2020, when he observed a pop-up ad on Facebook referring to injured workers and the rights to compensation.  That led to him consult his current solicitors, Slaters, on 25 June 2020 and that firm began investigating his claim, and ultimately a serious injury application under the Accident Compensation Act 1985 was submitted on 30 June 2022, resulting in a serious injury certificate being granted on 27 October 2022.

97After the statutory conference did not resolve his claim, a Writ was filed on 14 April 2023 and a Defence filed on 29 August 2023, in which he understood the defendant said his claim was time barred.

98He understood Slaters had subpoenaed Maurice Blackburn to produce a copy of any records they have relating to him and his meeting with them, but he had been told there was no record of him attending the office.  He did recall going to the Geelong office on Yarra Street, just up from a McDonalds, and meeting a female solicitor there.

Cross-examination

99He was 100 per cent sure there was one attendance.  He had left the defendant at that point and had a new job.  He thought about making some type of claim but was actually quite nervous to, while he still worked for the defendant.[30]

[30]T47

100When he had settled into his new role, he wondered whether there was some entitlement, and that led to the meeting with Maurice Blackburn.[31]

[31]T47

101While at LifeHealthcare, he had wondered whether he would be entitled to a claim or not, whether he should pursue a claim or not, and he had a lot of reluctance to do so while he was still working for the defendant.  He left there in 2010.  He thought the defendant kept him on the books casually until December, but he in fact started with LifeHealthcare in September.[32]

[32]T47

102When he got to that new job, he thought he should pursue something, now he did not work for the defendant, and there would not be any risk of losing his job in bringing such a claim.[33]

[33]T47

103By that stage, he had made a WorkCover claim that had been accepted.  Surgery and his time off work had been covered.[34] 

[34]T48

104He agreed he was “thinking in … [his] mind a different kind of claim, sort of a lump sum damages kind of claim”.  He had never brought a claim like that for himself for any previous injury, but agreed he was aware of the possible ability to bring such a claim in relation to an injury.[35]

[35]T48

105He knew someone who had made a claim years previously, and he recalled being told by that person that they had made a claim while they still worked for their employer, and it became very awkward and that they then left the employment, and were told “if you make a claim you’re not entitled any ongoing medical treatment”.[36]

[36]T48

106So at the time, he remembered thinking to himself that he would rather have ongoing access to ongoing medical treatment if he needed it, rather than a lump sum.[37]

[37]T48

107He moved into his new job, which did not have him doing any laborious tasks, so he was “happy to have the health back to the standard that was as good as it could possibly be after the surgeries”.[38]

[38]T48

108He then went to Maurice Blackburn by himself and spoke to just one solicitor.  Having phoned, he was booked in for an appointment, which he thought probably went for about five minutes.[39] 

[39]T48

109What was discussed was whether he would be entitled, after the injuries and surgeries that he had had, to make a claim.  He was told he could:

“Well, see how you go with your job, but I think the ...  advice I had from them was you’re not in a period where your ...  injury has settled.  This will take a significant period of time before that you would be even be able to bring a claim on, ...  and you’re not even actually sure of how your injury is going to settle, and ...  what the outcome is.  So I left that office with the understanding that, yes, I would likely be entitled to a claim, that I would be months, if not years, off being able to put a claim – such claim together.  And I left that office with the genuine understanding that ...  this would be a long, drawn-out process that was probably going to affect my life even more.  And after having two or three years of ...  uncertainty in my life, I was happy to have my health back and have a new job, ...  and decided at that point in time that is it really worth me making the claim, or is it – should I just get on with my life?  So – that’s the recollection of that interaction.”[40]

[40]T49-50

110He could be told that amount of information in just five minutes.  He had probably elaborated more, but he was trying to articulate the feeling around that, and what he left with.[41]

[41]T50

111When he was told he was “miles away from being able to submit forms”, that was just his paraphrasing.  He was honestly giving what he could recall, and that he did not think he would be back in there within the next few months starting a claim because his injury had not settled fully.[42]

[42]T50

112Knowing that he had changed jobs and was not going to be working in a laborious role, he probably thought his injury was probably going to settle, and settle well[43] (rather than exacerbate it by changing to a heavy job).[44]

[43]T50

[44]T51

113His response to a suggestion it was very possible that time limits were discussed was:

“I don’t recall talking about timeframes, even specific to the injury.  Was more about see when you’re ...  settled.”[45]

[45]T51

114He did not recall receiving anything in writing there or after the fact.[46]

[46]T51

115He never contacted Maurice Blackburn again, even after he did see how he went in his new job:

“As I said, I made the decision then to move on in my life after having turmoil of two, three plus years at this point in time.”[47]

[47]T51

116The situation changed when he saw the advertisement on Facebook in 2020.  He agreed it would probably be wrong to suggest it was only from that advertisement that he knew he could bring a claim, because he probably knew he could.  It was just a reminder that was put in front of him.:

“I can tell you with all honesty, at that period of time, it was the start of COVID, a lot of people had a lot of time on their hands.  Certainly, my recollection is reflecting on, you know, my life and my children, my family’s life and the impact that the – something that was unprecedented was – was happening and when – when I’ve seen that ad, what jogged in me was, you know, ‘Are you entitled to something?  Were you entitled to something?  Do you feel like you were fairly treated?’  And ...  my takeaway from that was, no, ...  I probably wasn’t, you know, duly compensated ...  for the effect that it had on my life.”[48]

[48]T52

117At that stage, during COVID, he was working at home for Multigate Medical.[49]

[49]T52

118He agreed that in the previous ten years he would have seen advertising from a number of firms who were well known advertisers.[50]

[50]T53

119When he went to Slaters, he was advised that he was out of time in relation to making a common law claim.  His recollection was that he would have certainly been entitled to make a common law claim, but he had run out of time, but there was another form of compensation, or another claim that he could make, that did not have a time limit.  He agreed that was for impairment benefits, and that was the form that was lodged in March 2020.[51]

[51]T53

The induction process

120The induction process when he started with the defendant was very brief.  The “induction program” document, which he was shown, set out the sort of things covered in his induction, but there were some things that were not, like infection control, thickened fluids and chemical information.  His recollection was the induction was around equipment, probably operational health and safety.  He agreed he was shown how to use equipment required in his role - trolleys, trucks and tailgates – and also safe work procedures.[52]

[52]T43

121He did not recall specifically signing the induction document, but he imagined that he would have as a new employee.[53]

[53]T43

122He would assume there were documents relating to his duties like risk assessments and hazard identification, but he could not say.  He could not recall seeing any risk assessments and hazard identification documents, but he was aware they had been done.[54]

[54]T44

Grant Greskie, affidavit sworn 2 February 2024

123He was employed by the defendant from 2009 to about 2011 as a driver’s assistant, initially part time and then shortly thereafter commenced work full time.[55]

[55]Ms Harold’s affidavit – employed from 3 December 2007 to 7 June 2009

124He is aware that the plaintiff injured his back at work;  however, he did not witness the particular incident.  He recalled that he was moved to Stores to assist the plaintiff with the heavy lifting aspect of his role after his injury.  He worked with the plaintiff for about six months in that capacity. 

125He recalled that the defendant had two trucks in operation: one older truck and a newer one.  He recalled that the older truck had a faulty roller door.  The roller door was meant to be able to be lifted up from one side to then easily slide up on the side tracks.  The older truck roller door would become stuck and would require someone on each end to move it up and down.  The roller door on the newer truck had no problems.

126He recalled having daily team meetings with approximately fifteen other drivers and drivers’ assistants.  He recalled that the faulty roller door on the older truck was reported to the manager at the time, Ken Knocker.  He did not believe that the roller door on the older truck was ever repaired.  He recalled Ken telling them not to use the older truck; however, this was not practical during the day due to the number of orders they were required to deliver.

James Dott, affidavit sworn 16 May 2024

127He is a former work colleague of the plaintiff whom he understands is seeking an extension of time to commence proceedings with respect to spinal injuries which he sustained in May 2007, which he understood to have led to two spinal operations.

128He commenced work with the defendant in about 2003 as a storeman and subsequently as a truck driver’s assistant and driver.

129Before he started that job, he suffered a ruptured disc in his back.  He told the defendant of that injury but was nevertheless employed and remained so until 2016. 

130In that capacity, he came to work with the plaintiff from November 2006, when the plaintiff began work as a driver.  That relationship continued until his employment was terminated in 2009 or 2010.

131He understood the plaintiff’s proceedings concerned lower back injuries while undertaking the delivery of foodstuffs from the Grace McKellar Campus in North Geelong, the main Geelong Hospital and the defendant’s other facilities.

132He was aware the plaintiff claimed to have sustained injury when closing the roller door on the refrigerated medium rigid Isuzu 10T vehicle, which was supplied for his use that day.  In his own work with the defendant, he was well-familiar with that truck which was one of two vehicles that the defendant operated for the purpose of delivering foodstuffs between its various facilities.

133To his observation, the vehicle was being poorly maintained, which remained the situation through the course of his employment and in fact resulted in him sustaining injury in about 2011 through a flare-up of his pre-injury spinal rupture. 

134The main problem with the vehicle was that the roller door had a panel roller door mechanism at the back that had to be opened and lowered for the purposes of each delivery.  Whether the rollers or the door had run off the roller mechanism entirely, or whether the roller mechanism through age and usage had become dinted and out of alignment, he could not recall.

135What he could clearly recall was that when opening and closing the roller door on this truck, particular strain was required to be placed on the spine in order to either open or close the door as necessary.

136To the best of his recollection, he could not swear to working with the plaintiff on 16 May 2007, but had a very strong recollection of working with him on the day or days that followed because he specifically recalled the plaintiff complaining of pain in his back as he tried to lower the roller door on the truck, and the plaintiff telling him that he had hurt his back whilst he was lowering the roller door on the truck shortly prior thereto.

137It may well have been the case that he was working with the plaintiff that day but he was off taking a delivery to one of the other defendant’s facilities and not actually present, but he had a strong recollection of the plaintiff informing him of his injuries within a very short time thereafter.

138His understanding from that point on was that the plaintiff required a significant amount of medical treatment, including attending the hospital staff clinician, Dr Gasser.  He himself attended that doctor from time to time with various complaints of injury.  He understood the plaintiff was referred on to a number of other specialists and ultimately required surgery on two occasions.

139The system of maintenance of the roller door on that truck was that there was meant to be regular service and maintenance of the vehicle.  Faults would be reported to the supervisor, whom he believed was Joanne Hammond, and later, Kenneth Knocker, the latter taking a particular lax attitude towards maintenance and safety issues with the trucks.  Mr Knocker had previously been head chef at the hospital so he did not know what he knew about truck maintenance issues.

140Despite this system, the deficiencies in the roller door mechanism of the vehicle remained, and the difficulty of raising and lowering the door when in use remained.

141The circumstances of the failure to address maintenance issues on the truck or to repair the roller door mechanism were to have direct consequences for him in about 2011, when he was raising the door of the truck over the uneven tracks and the right-hand side rail of the door jammed, causing him to suffer a significant spinal injury.  This aggravated the ruptured disc which he had suffered many years before, which had been under relatively good control in the intervening years of his work.  So far as he could recall, he had not required any interventional treatment.

142When he suffered his injury as a result of using the truck door, he was off for about two weeks, lodged a WorkCover claim and received some payments. 

143The truck remained in use until his employment came to an end in about 2016.  By that stage, breathing issues had reduced his work capacity to three days a week but he continued using the truck until the end of his employment, and the condition of the truck remained the same throughout.

144He can recall on one occasion the RTA putting the truck off the road because of its condition and issuing a default notice.  By the time he ceased work in 2016, the defendant was in the process of getting new trucks, although he did not operate the new trucks because his employment finished before they came online.

145He was approached to speak to the plaintiff’s solicitors in early 2023 but was afraid of doing so because his own termination agreement contained a confidentiality clause and he was concerned that if he spoke to the solicitors he would breach that clause.

146It was not until about 13 May 2024 that he was advised by the plaintiff’s solicitors that the defendant’s solicitors had agreed to not enforce the confidentiality clause against him if he was prepared to make an affidavit relevant to the plaintiff’s case, which he was willing to do given his knowledge of the truck upon which the plaintiff sustained injury.

147Over the years, since their respective employments ceased, he had maintained an intermittent social contact with the plaintiff and perhaps speaking to him once or twice a year in the earlier years, but far less frequently later on as his own health declined and he became less active.

148He verified that, from his knowledge, the plaintiff sustained injury in the manner he had described and that the truck roller door was in the deficient condition which he described, and that the plaintiff reported injury to him very shortly after sustaining such injury.

149In cross-examination, he was taken to the reports of four incidents in which he was involved while working for the defendant.

150He remembered an incident in April 2007 which was described in the incident form as “twinge in back with a gradual onset”, reported to Joanne Hammond.  He was delivering crates of milk in a very antiquated little electric car and trailer system.[56]

[56]        T56

151He thought the second Incident Report from January 2008 – “strain felt in left arm” involved him lifting “reasonably heavy stuff”.[57]

[57]T57

152The third Incident Report in July 2011 set out he was having issues as there was a change to procedure with increased manual handling and an increase in a movement of opening and closing in the roller door of an extra twenty times.  “James the driver felt this was a build-up over the previous eight weeks.  …  “Handles to be fitted by truck repair contractor this week.”[58] 

[58]T57

153In response to the suggestion that report made no reference to any fault in the door, he said:

“...  I was coping reasonably okay because the load was – then started to be shared amongst other drivers and assistants because there was damage to the roller door system which hadn’t been actually fixed.”[59]

[59]T58

154The fourth incident in June 2013 involved a meal trolley knocking into his foot.[60]

[60]T58

155He was aware that a list of equipment faults was kept in Joanne Hammond’s office in 2006 or 2007 but he could not say whether the list was handwritten or typed.  He did not think they actually had a log book that recorded truck faults, but faults were always brought to the attention of whichever manager was there at the time.[61] 

[61]T59

156He did not believe it was true that vehicles were serviced in accordance with their service schedules.  They were not serviced regularly.[62]

[62]T59

157When asked if he was aware of the roller doors being sprayed, he replied he was aware that the roller door was sticky because he also hurt his back slightly on that said same roller door, and the lubricant spray was not going to make a difference.[63]

[63]T59

158When it was suggested he might be wrong, he confirmed his recollection there were deficiencies in the roller door:

“I don’t know what to say.  I was on the truck when it was pulled off the road for being unroadworthy.”[64]

[64]T60

159His response to the suggestion his injury in 2011 did not involve any defect in the roller door was:

“[I]t was a long time ago and things were all intertwined.  There was a lot of problems with that place and their mechanisms of getting over things.”[65]

[65]T61

160Assuming the doors were sprayed, the spray did not work.  The door track had been damaged by the food trolleys running into the door track itself.  Spray was not going to help.[66]

[66]T61

161The vehicles were not serviced as per the schedule, there was just a general overall maintenance check on the trucks.  It did not seem to be regular at all.[67]

[67]T61 – Re-examination

162When there was a fault in a truck, they reported damage to whatever equipment to an occupational health and safety officer, then they would present it to the manager at the time.  The occupational health and safety representative would fill out the form and give it to either Joanne or whoever the manager was.  Management did change hands a few times.[68]

[68]T63

163The defect he described in the roller mechanism was rectified while he was using the truck.  It was too far back to remember that date exactly, but it was brought to the attention of management quite often that these trucks were faulty, dangerous.[69]

[69]T63

164The fault was eventually rectified.  The truck was pulled off the road for three weeks:

“That was how much damage it took.  ...  And [to] make it roadworthy.”

165He honestly could not say when the truck was pulled off the road for three weeks.[70]

[70]T64

Audrey Gunn, Slaters

166Ms Gunn swore an affidavit on 21 January 2024.   

167On about 26 June 2020, the plaintiff retained Slaters in relation to injuries to his lumbar spine in the course of his employment with the defendant including in particular, 16 May 2007.

168The plaintiff instructed Slaters on or about 25 June 2020 that, throughout the course of his employment, he was required to perform duties that involved:

(a)   repetitive manoeuvring, pushing and pulling of heavy and awkward food service trolleys;

(b)   repetitive bending, reaching and pushing cassettes of meals into a cook/chill machine; and

(c)   repetitive opening and closing of the roller door at the rear of the food services delivery truck.

169The plaintiff was granted a serious injury.

170There were challenges in obtaining the claim file from Allianz, Slaters having first made a request on 1 July 2020.  On 1 February 2021, as COVID-19 restrictions had been relaxed, a further request was made, and on 8 February 2021, Allianz provided Slaters with the requested claim file by email.

171An impairment benefits claim was served by Slaters on 12 March 2021 and correspondence and medical examinations followed thereafter.  On 23 July 2021, Slaters provided the signed worker’s response form to Allianz, finalising the plaintiff’s permanent impairment benefit claim.

172The preparation of the serious injury application commenced on 28 September 2021.  Further medical material was requested from Mr Wilde, Corio Bay Sports Medicine, Barwon Health, Myer Street Medical and Dr Fox.

173On about 22 March 2022, the file was transferred to Gemma Waterhouse at Slaters.

Gemma Waterhouse, Slaters, affidavits sworn 30 October 2023, 22 January and 6 March 2024

174She was originally a legal assistant who then took over the plaintiff’s file in March 2022.   

175In her first affidavit, she gave the background to the serious injury application lodged 30 June 2022 and granted on 27 October 2022, the compulsory conference followed by statutory offers, the issue of a Writ on 14 April 2023 and the Defence dated 29 August 2023 where the defendant pleaded the plaintiff’s cause of action was barred by s5 of the LAA.

176In her second affidavit, she deposed that after she assumed conduct of the matter, she continued chasing the outstanding medical material requested by Ms Gunn.

177In preparation of the serious injury application, she sought medical material from Barwon Health StaffCare. When that was received in May 2022, she took various steps to prepare the serious injury application which was served shortly after the plaintiff swore his affidavit on 30 June 2022. 

178On 17 November 2023, a subpoena was served on Maurice Blackburn for production of all documents relating to the plaintiff.   On 7 December 2023, Maurice Blackburn informed Slaters they were unable to locate any record of the plaintiff.

179In her March 2024 affidavit, she detailed the procedural steps undertaken and timetabling changes made after the issue of the s23A application on 2 November 2023.

Defendant’s evidence

Caroline Harold, Wisewould Mahony, first affidavit sworn 14 February 2024

180On about 2 July 2022, her firm was instructed by the VWA to act on the defendant’s behalf.

181The plaintiff seeks damages from his former employer in relation to injuries allegedly suffered as a result of performing work duties from 8 December 2006 until 16 May 2007, and as a result of an incident on 16 May 2007.[71]  The injuries claimed are for the lumbar spine and a psychological injury.

[71]        Period of employment was from 6 October 2006 – Statement of Claim

182She noted the allegations of negligence and the plaintiff’s description of the incident circumstances set out in the Statement of Claim. 

183During the period of employment, she was aware of the plaintiff having suffered injury as a result of the incident.

184She had obtained from the defendant Comprehensive Report Incident ID: 84821 (“Riskman report”) created by Joanne Hammond on 17 May 2007, which stated that:

“Felt a twinge in back when closing the roller door on the back of truck.  Closing the door on the truck Glen felt a twinge in his lower back as he bent down to locking position.  Felt okay reported incident and contacted Staffcare to make an appointment to check.  Incident occurred on 16 May 2007 at 14.30 at Geelong Hospital loading bay level 2.”

185The Riskman report does not indicate the plaintiff alleged the roller door had “become stuck”. Further, the report stated there was no “Improvement Opportunity”, and on 6 July 2007, it was “noted” by Barry Daniels but not “actioned”.

186The plaintiff subsequently made a claim for compensation on 13 July 2007 in respect of the incident injury.   He failed to answer Questions 16, 17 and 18 on the Claim Form.   

187The Employer Claim Form from Allianz was available.

188The plaintiff’s claim was accepted by Allianz and he received weekly payments and medical and like expenses from about 25 July 2007 until 23 July 2010 for various periods of incapacity.

189She then detailed the plaintiff’s treatment and attempts to return to work following the incident.

190On 12 March 2021, the plaintiff’s solicitors wrote to Allianz, submitting an impairment benefits claim in relation to a spinal injury.  That form stated that the plaintiff suffered injury when he was “closing the roller door on the back of a truck”.

191On 2 July 2021, the impairment benefits claim was accepted.

192On 30 June 2022, the plaintiff’s serious injury application was received by WorkSafe.  A supporting affidavit sworn by the plaintiff on 30 June 2022 set out a description of the relevant duties he stated were causative of his claimed injury and the incident.

193After the plaintiff lodged his serious injury application, she requested from the defendant copies of relevant documents existing prior to the plaintiff’s injury and generated as a result thereof.

194She was provided with the plaintiff’s personnel file, injury/incident-related documents (Comprehensive Report Incident ID 84821 Riskman, Claim Form and  employer report), return to work correspondence, position description,  policy and procedure documents which postdate the incident – dated 14 September 2007 (manual handling, incident management), WHS Hazard Risk and Corrective Action Management Procedure, Environmental Safety Audit and OH&S policy dated 2009 on Prompt Risk Assessments.

195She had been instructed at that time that the defendant had not been able to locate the following which may be relevant to the plaintiff’s claimed injury: risk assessments, investigation reports, plaintiff’s education, training and induction records, job task analysis for food services delivery driver, safe operating instructions for the roller door on trucks and the meals trolleys, policy and procedure documents of the kind described in the previous heading but which pre-date the incident.

196She subsequently had been advised that no formal organisation-wide policy in respect of record retention and disposal had been able to be identified in the period leading up to 2023. She had been advised, however, that in most cases documents would be retained for:

(a)   vehicle maintenance and fleet accident records – two to seven years;

(b)   personnel and OH&S records where there was no serious injury – seven years.

197She was instructed that the defendant had undertaken searches for documents relating to the truck – SLB 565.  No documents relating to the roller door were identified, although other documents relating to the truck’s purchase, tailgate registration, installation and repair had been located.

198She was instructed that one of the prior fleet managers was not known to retain all records.  She was not able to say that the documents that had been identified are all the documents which previously existed in respect of the truck; however, she was also unable to say what, if any, further documents previously existed but are no longer able to be located.  No documents relating to any inspection, maintenance or repair of the roller door had been identified, nor has any document which indicates that the roller door had been “stuck”, either on 16 May 2007 or prior to that date.

199She was instructed that the food services manager had undertaken a further search for documents and no documents relating to the plaintiff’s alleged injury had been identified.  She was instructed that hard copy documents which were still in existence only went back to 2015.  No additional documents had been identified in respect to the plaintiff’s training and induction and/or the inspection, maintenance and fault records in relation to the trolley wheels.

Complaints

200The plaintiff’s Statement of Claim expressly alleged that there was a failure to heed complaints about the roller door on the truck getting stuck in the guide when it was being opened and closed.  In February 2024, a request was made of the plaintiff for particulars of those complaints.

Ms Harold’s second affidavit sworn 15 May 2024

201Mr Greskie’s affidavit and the plaintiff’s further affidavit of 8 March 2024 prompted further enquiries to be made.

202She was instructed that the defendant had undertaken further searches for relevant documents. 

203The oldest backup file located on the Food Services Department drive and Human Resources drive that was able to be accessed by the defendant was dated 1 January 2018.  The oldest backup file that was able to be accessed by the defendant on the personal drive of the former occupational health and safety manager, Martin Verhoeven, human resources, was dated 1 January 2019.

204She was instructed that the defendant’s earlier backup files were tape-based and not presently able to be read or searched, and as such it is unknown as to whether any documents relevant to the plaintiff’s claim might be stored upon them.

205Given the nature of the backups, that is, tape-based, and the age of the backups, the defendant did not have the capacity to access the content of the tapes themselves.  It would be necessary instead to identify a third-party IT services provider which might have the necessary hardware and capability to access those backups.  Then, if such a provider were identified, they would need to be engaged and paid to access the content of those tapes in order to see what additional documents might be stored.

206She was instructed that insofar as the defendant’s enquiries had been able to identify possible sources of documents, notwithstanding the time that has passed, the following searches have been undertaken by the defendant, and the results of those searches are:

(a)   a search was conducted of the recovered system backup of the defendant’s former intranet site, “Wavelength”, which was the repository for documents and an information-sharing portal.  It was decommissioned in 2017.

(i)OH&S manuals dated 2004 and 2006 were located;

(b)   a search was conducted of the backup file dated 1 January 2019 of the personal drive of the former relevant occupational health and safety manager, Mr Verhoeven

(i)no relevant documents were located;

(c)   a search was conducted of the People and Culture employee administration software which located some training records of the plaintiff on a tab

(i)a snip of the plaintiff’s training record was located;

(d)   no documents have been able to be located with respect to the content of the particular induction programs at the health service or local departmental level or training undertaken by the plaintiff;

(e)   a search was conducted of the HR backup file of 1 January 2018 and no relevant documents have been located;

(f)    searches were undertaken by People and Culture file room and Return to Work and Occupational Health and Safety team offices and failed to locate any further relevant hard-copy documents;

(g)   searches were conducted by the food services department for the danger tag procedure, maintenance reporting and education and training records which were held locally on a predominantly paper-based system at the relevant time

(i)no relevant documents were located;

(h)   searches were conducted by the food services department for hard copy documents of completed risk assessments, job safety analysis, truck maintenance records and environmental safety audit documents

(i)no documents have been located prior to 2013;

(i)    a search was conducted of the recovered system backup of the food services department dated 1 January 2018;

(j)    a number of documents were located which she described at (i)−(xiv).

207She was instructed that the spreadsheet recording faults had not been located by the defendant either in hard copy or electronically.  Additionally, no risk assessments beyond those already exhibited had been located.

Ms Harold’s third affidavit sworn 16 May 2024

208She detailed her phone conversation with Ms Hammond which Ms Hammond later deposed to. 

209Ms Hammond’s instructions had been provided by the defendant’s authorised representative in respect of the plaintiff’s claim, Fiona Nelson, legal counsel.  Ms Nelson had coordinated the defendant’s searches for relevant documents in respect of the plaintiff’s claim.

Ms Harold’s fourth affidavit sworn 7 March 2025

210She detailed her enquiries made of an IT service provider as to the ability to restore the backup files, and the cost relating to discs and tapes that were found in an old safe at the Grace McKellar site dated 2011 and twenty-three digital linear tapes located in the safe. 

211In short, it was not known what these tapes contained.  The cost of restoring these tapes would be about $15,000 and the process would take about eight weeks.    

212The backup tapes located have not been restored as there is no way of knowing what is on them; it is speculative as to whether the tapes contain documents relevant to the proceedings, and the process to restore and search for the relevant documents would be costly and highly onerous for the defendant.

Ms Harold’s fifth affidavit sworn 11 March 2025

213The defendant had provided four Incident Reports involving Mr Dott: Comprehensive Incident Reports dated 26 April 2007, 25 January 2008, 21 July 2011 and 18 June 2013.

Joanne Hammond, affidavit sworn 12 July 2024

214She was employed by the defendant between 2003 and 11 January 2010.  She was the plaintiff’s supervisor.  She could recall him and that he told her he had hurt his back, but she could not remember how he did.

215There were two delivery trucks.  One was eighteen months older than the other.  (She understood the older truck is the one in this case.)

216She did not recall any complaints being made of there being problems with that truck’s roller door getting stuck on closing.

217She remembered that faults or complaints about trucks would be reported in the truck’s logbook and also verbally reported to her.  She would log the issue in the defendant’s maintenance system if the service repair could be performed inhouse; otherwise she would arrange for external service repair.

218She believed that issues were recorded in a Word document, and does not have a clear recollection of a spreadsheet of faults.  She recalls that hard copy records of repairs were kept in a folder.

219She had no recollection of the plaintiff complaining about the truck roller door.  Barry Daniels, and not Ken Knocker, was her direct supervisor, and it would be to Barry Daniels that issues were reported by her.

220She has no recollection of the older truck having a faulty roller door.  The roller door was meant to be lifted from the handle, which was positioned in the centre.

221There were no formal daily meetings, and there were not fifteen other drivers and drivers’ assistants.

222Staff may have communicated with each other at the start or end of a shift, and they had formal team meetings monthly.

223In terms of risk assessments, she recalled when the defendant first moved to the McKellar Centre in about 2006, a consultant was employed to review work procedures and to produce risk assessments and JSAs of all positions and duties.

224After a list of risk assessments and procedures were read out to her (by Ms Harold), which had been located by the defendant, she recalled there were more risk assessments than these.

225She did not know what James Dott meant by “the vehicle was poorly maintained”.  It was serviced regularly, according to its service schedule, and any report of faults were repaired.

226If the roller door was sticky and not tracking well, it would be sprayed with a lubricant spray, WD-40.

227She had no recollection of the truck roller door being faulty because the rollers of the door had run off the roller mechanism or because the roller-door mechanism had become dinted and out of alignment through age and use.

228Faults with the vehicle would be reported to her as the supervisor, and if she was not present, they were reported to Barry Daniels as food service manager or another supervisor who may have been rostered at that time, such as on weekends or on an evening.

Kenneth Knocker, affidavit sworn July 2024

229He was employed by the defendant between 11 March 1987 and May 2014, and at the time the plaintiff worked for the defendant, he was the executive manager of food services.  He now works at Mercy Health Aged Care.

230He could remember the plaintiff and that the plaintiff worked in the food services distribution area.

231The plaintiff had an induction and received training, and his training records were held locally at his employment location.

232He did not recall how the plaintiff injured his back at work.

233There were two trucks used by the food distribution team.  Both had a tailgate operated by a remote control to lift and lower, and a roller door.  He could not remember there being a problem with the older truck’s roller door being difficult to open.

234There was a system for maintenance and repair of equipment and trucks.

235The system for reporting issues or faults with equipment was that they were reported to Joanne Hammond as supervisor, who would then record the fault on a hard copy spreadsheet kept in her office situated in the kitchen at the McKellar Centre.  The information was then also entered by her on an electronic spreadsheet and she would bring the issue to his attention if the repairs cost over $1,000.

236If there was a mechanical issue, the truck would be taken out of service and repaired at a nominated repairer.  There was an internal maintenance department for fixing smaller issue faults with equipment.

237Records were kept of all repairs and maintenance performed on vehicles and equipment on the spreadsheet.

238There was a regular maintenance program for trolleys.  They were “tagged out” if faulty, and repaired, and records were kept of this.  Each trolley was labelled and numbered.

239There were risk assessments undertaken of the plaintiff’s duties.  He recalled there were more risk assessments in that respect than those referred to in paragraph 7(j) of Ms Harold’s affidavit, and there were risk assessments of all duties, with photographs of staff undertaking them.

240With reference to paragraph 6 of Mr Greskie’s affidavit:

(i)    there would a handover meeting with staff at the end/start of each shift which were attended by Ms Hammond, not himself;

(ii)   he had no recollection of a faulty roller door on the older truck being reported to him;

(iii)   reports of faulty equipment made to him were, or would have been, addressed;

(iv)     he would never have said not to use the older truck and then allowed it to be used.  If there was something wrong with the truck, a substitute delivery vehicle would be engaged to provide the meals which were delivered each day.

241In response to Mr Dott’s affidavit:

(i)    the truck was serviced regularly according to mileage requirements, and it was repaired when staff reported there was a problem;

(ii)   the details of its services and repairs were recorded in the truck’s log book and on a spreadsheet;

(iii)   he had no recollection of the truck roller door being faulty because the rollers of the door had run off the roller mechanism or because the roller door mechanism became dinted and out of alignment through age and use;

(iv)     faults were reported to Joanne Hammond and not directly to him, as he was director of food services from about 2008 until 2013;

(v)   he rejected the assertion he took a particularly lax attitude to safety issues with the trucks.

Theresa Parker, affidavit sworn 23 August 2024

242She started work with the defendant as a student nurse on 7 October 1982, and at the time of the incident, was working in the StaffCare clinic.

243She has no knowledge of the plaintiff.  She did not work with him, and had no knowledge of his duties or the incident he claims occurred in 2007.

244The entry in the Riskman Report with her name on it dated 24 May 2007 records that the plaintiff was reviewed by a StaffCare doctor and could be further reviewed if required.

Barry Daniels, affidavit sworn 31 October 2024

245He was employed by the defendant from about March 1999 till November 2007.

246In about March 1999, he became the food services manager, and as part of his role, supervised Joanne Hammond and Kenneth Knocker.  He had no recollection of the plaintiff.

247There was ongoing maintenance of the defendant’s trucks, which were regularly serviced according to their mileage and manufacturer’s recommendations.

248If there was a problem, or maintenance issues arose with the trucks, it would be logged to be repaired by the defendant’s maintenance team, or Ms Hammond would arrange for it to be taken to the local repairers; all maintenance and repairs done on each vehicle was recorded in each truck’s log book which was kept in the truck and Ms Hammond kept a spreadsheet of all repairs and services.

249In response to matters set out in the plaintiff’s March 2024 affidavit:

(a)   the two trucks were not old.  They were bought by the defendant as new in about 2006 when the defendant moved its food services operations to the North Geelong site;

(b)   the trucks had been fitted out for their requirements, which included having roller doors which were standard industry type;

(c)   he had no knowledge of the roller door in any of the trucks getting stuck in the guide, or this being a regular problem;

(d)   he recalled that the roller door would occasionally stick, and a can of lubricant would be used to assist its mechanism;

(e)   there was a system in place to report hazards or incidents with equipment, called Riskman.  All staff were aware that they could record issues on that system;

(f)    he was the food manager, not Ken Knocker, who was the executive chef.  Ms Hammond and Mr Knocker would report to him.

250He had no recollection of Mr Greskie.  He had no recollection that either truck had a faulty roller door.  Any fault with the door would have been reported to Ms Hammond, as supervisor, or to him if she was not there at the time, or to Mr Knocker.

251To his knowledge, if there was anything that required repairing or maintenance, it was done.  It was very important that the trucks be operating and in good working order to transport the many meals between the defendant’s facilities.

252He did not recall Mr Dott.  He believed another man was employed as a storeman from 2007, and not Mr Dott.  He thought the man’s name was Ian.

253He did not believe the truck described by Mr Dott was poorly maintained.  Problems when notified were fixed, and the truck was regularly serviced.

254He had no recollection of the truck roller door being faulty because the rollers had run off the roller mechanism or because the roller door mechanism had become dinted and out of alignment through age and use.  if there had been a problem with the roller door and it was notified, he believed it would have been rectified immediately.

Legislation

255Section 23A of the LAA provides:

“23A Personal injuries

(1) This section applies to any action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) where the damages claimed consist of or include damages in respect of personal injuries to any person.”

256Section 23A(2) of the LAA empowers a court to extend the limitation period within which an action for personal injury may be brought.  The Court must be satisfied that it is “just and reasonable to do so”. 

257In determining whether it is so satisfied, s23A(3) of the LAA requires that the Court shall have regard to all the circumstances of the case, including:

“(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.”

Legal principles

258Limitation periods are enacted as a matter of public policy and founded on the proposition that delay produces a general deterioration in the quality of justice.[72]

[72]per Beach JA in Marceta v Efandis [2016] VSC 265; per J Forrest J in Sparkes v Hylemit [2016] VSC 453 at paragraph [33]

259In Brisbane South Regional Health Authority v Taylor,[73] McHugh J described the reasons for the limitation regime:

“The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’.  Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed.  But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties.  Prejudice may exist without the parties or anybody else realising that it exists … The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.

First, as time goes by, relevant evidence is likely to be lost.  Second, it is oppressive, even ‘cruel’, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed.  Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.  Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.  … .”

[73] (1996) 186 CLR 541 (“Brisbane South”) at 551-552

260The onus is on the plaintiff to satisfy the Court that it is “just and reasonable” to extend the period.  As McHugh J stated:

“… A limitation provision is the general rule; an extension provision is the exception to it.  The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.  The purpose of a provision such as s31 is ‘to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced’.  But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action.  The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question.  Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.”[74]

[74]Brisbane South (ibid) at 553

261McHugh J also said:

“The justice of a plaintiff’s claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of the delay, is unable fairly to defend itself or is otherwise prejudiced.

…  The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice.  … .”[75]

[75]        Brisbane South (ibid) at 555

262In Prince Alfred College Inc v ADC,[76] the High Court identified two fundamental propositions established by its decision in Brisbane South which guide the exercise of the Court’s discretion on an application for an extension of time:

“First, an applicant for an extension of time must prove the facts which enliven the discretion to grant the extension and also show good reason for exercising the discretion in his or her favour.  An extension of time is not a presumptive entitlement which arises upon satisfaction of the pre-conditions that enliven the discretion.  The onus of persuasion is upon the applicant for an extension of time.

The exercise of the discretion to grant an extension of time must take account of the reasons for the limitation regime, and the discretionary nature of the decision to be made must be respected when conducting appellate review of a primary judge’s decision. 

Secondly, the purpose of the legislative conferral of the discretion is to ensure a fair trial on the merits of the case.  The loss of evidence which will tend against the prospects of a fair trial will usually be a fatal deficit in an argument that good reason has been shown to exercise the discretion to grant an extension.”[77]

(citations omitted)

[76] [2016] 258 CLR 134 at paragraphs [99]-[100] (“Prince Alfred College”)

[77]        Brisbane South (supra) at 544, 549-550 and 556

263In Basil v Pugh,[78] the Court of Appeal said:

“Also, more than lip service must be paid to the observation of McHugh J in Brisbane South as to what is described as general prejudice — that is, prejudice that may exist without the parties or anyone else realising that it exists, and what has been forgotten can rarely be shown:

‘So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed ...  A verdict may appear well based on the evidence given in the proceedings but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued.  The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.’” 

[78][2024] VSCA 280 at paragraph [37]

264As the Court of Appeal in Griffiths v Nillumbik Shire Councili[79] stated:

“The principles that apply to an application of this type are uncontroversial and can primarily be derived from the decisions of the High Court in Brisbane South and more recently in Prince Alfred College:

(1)The applicant, for an extension of time, bears the onus of establishing that it is just and reasonable to order that the limitation period be extended.  It is for the applicant to prove the facts which enliven the discretion to grant the extension and to show good reason for exercising the discretion in his or her favour;

(2)The purpose of a discretion conferred by provisions such as s 23A is to ensure a fair trial on the merits of the case. Loss of evidence, which tends against the prospect of a fair trial, will usually be fatal to an application to extend time;

(3)The relevant delay commences from the time of the accrual of the cause of action;

(4)Relevant prejudice to a defendant is both that which occurs by reason of the delay (such as the demonstrable loss of documents or testimony of a relevant witness) as well as the prima facie prejudice suffered by a defendant who, if not for the application for extension, would have the benefit of the limitation period;

(5)In cases of long delay, there is presumptive prejudice as important, perhaps decisive, evidence may disappear without its existence ever being apprehended;

(6)The circumstances of the case referred to in s 23A(3) require a synthesis of the competing considerations set out in the subsection in reaching a conclusion that takes into account all of them.”

[79][2022] VSCA 212 at paragraph [68]

265And at paragraph 66:

“To put it bluntly, and contrary to what appears to have been the perception of Mr Griffiths and his lawyers after 2016, a limitation period in a personal injuries claim, or in a proceeding more generally, is not just some easily movable line in the sand.  Rather, it is a formidable hurdle which can only be overcome by the applicant satisfying the test laid down by the relevant extension of time provisions.”

266In Tsiadis v Patterson,[80] Buchanan JA, with whom Ormiston and Callaway JJA agreed, said:

“The matters which the Court is required by s.23A to take into account cannot all be weighed against each other.  For example, prejudice to the respondent in being unable to recover any compensation cannot be measured against prejudice to the appellant in conducting her case.  Rather, the Court must synthesize a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the respondent bears the onus of persuading the Court that it is just and reasonable to extend the limitation period.”

[80] [2001] VSCA 138 at paragraph [33]

267The consequences to an applicant in not being able to bring a proceeding for a time barred cause of action are thus relevant – albeit that they must be weighed in the synthesis with any consequences to a respondent in permitting a time barred claim to proceed.[81]

[81]Transport Accident Commission v Murdoch [2020] VSCA 98

268In consideration of the question of prejudice and whether there can be a fair trial, in Gordon v Norwegian Capricorn Line (Australia) Pty Limited,[82] J Forrest J stated:

“… 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’.  … .”

Is it just and reasonable to extend time?

[82] [2007] VSC 517 (“Gordon”) at paragraph [79]

(a)    The length and reasons for the delay

269The relevant delay in this application is the delay between the accrual of the cause of action – 16 May 2013 – and the making of the application for an extension of time – June 2022, over nine years later.   

270The defendant’s position in general terms is that the plaintiff has not discharged his onus of persuasion in that there is no presumptive entitlement to an extension of time.  The applicable period expired in 2013.  There is then nine years until the serious injury application and that delay is “inordinate”.[83] 

[83]T67

271The affidavit evidence relied on by the plaintiff does not provide a satisfactory explanation for the delay.  The delay is such that prejudice is presumed and there is also actual prejudice that tends against the prospect of a fair trial.[84]

[84]T67

272The plaintiff’s affidavit evidence was either misleading or at least incorrect because his evidence in cross-examination was directly to the contrary.  He then agreed he knew he had the potential to bring a common law claim before he saw Maurice Blackburn and he was told by them he could make such a claim, and he left their office with the understanding he would be entitled to do so, but it would take some time before it could be put together.[85] 

[85]T69

273The plaintiff then did nothing.[86]  

[86]T69

274As the Court stated in Prince Alfred College:

“Where an injured party makes a deliberate decision not to commence proceedings, there must be strong reasons to permit proceedings to be brought against a defendant who reasonably considered that the dispute had been laid to rest.  It has been recognised that there is an element of oppression involved in bringing an action so long after the circumstances which gave rise to it have passed.  That oppression is aggravated where a party conveys the impression that he or she will not bring proceedings on certain terms and then, when the terms are met, changes his or her mind.”[87]

[87]Para 106

275While the facts are a bit different in Prince Alfred College (the plaintiff in that case had specific knowledge of the limitation period), in this application, the plaintiff knows he can bring such a claim and, on his own evidence, he made the decision to return to his life and not pursue the claim.[88]

[88]T70

276In Itek Graphix,[89] Ipp AJA (with whom Spigelman CJ and Sheller JA agreed) said:

“A deliberate decision to allow a statutory limitation period to expire would be a powerful factor against the grant of leave.  Where a deliberate decision to allow the period to expire has been made, ordinarily it will be difficult to provide an explanation for that decision sufficiently cogent to warrant the grant of leave.  There is ample authority to this effect.”

[89] (2002) 54 NSWLR 207 at 225, paragraph [91] per Ipp AJA

277Although the plaintiff does not remember, it was very likely he was told something about timeframes and including something in writing.  The request for his file was made only of the Maurice Blackburn’s Melbourne office, not Geelong, where he was seen.[90] 

[90]T70

278There was no evidence there was some deterioration in the plaintiff’s medical condition which led him to engage Slaters in 2020.  Further, he accepted he had seen lots of advertisements from other firms between 2010 and 2020 and that, when he went to Slaters,[91] he remembered being told he was out of time, but he could pursue another claim – an impairment benefits claim.[92]

[91]T108

[92]T70

279There was what seems to be a conscious, purposeful decision by the plaintiff based on the advice from Slaters not to pursue the common law claim because it was out of time.  It is quite misleading the Slaters’ affidavits do not address that aspect of the timeline but it does explain why there was no rush to lodge the serious injury application because that only seems to have been done about a year after the finalisation of the impairment benefits claim.[93] 

[93]T71

280The observations of Macaulay J in Arisoy v Yoogalu Pty Ltd t/a Harvey Norman[94] are apposite.  It is quite an opaque picture, which is quite unsatisfactory in a case like this. 

[94][2012] VSC 631

281As Macaulay J said:

“Considering the conduct and position of both parties, including the effect of the application on each of them, I am not persuaded that it is just and reasonable to extend the limitation period.  The primary obstacle to exercising my discretion in the plaintiff’s favour is the opacity of the picture concerning her role in the delay.  Whether it was attributable to her conduct, or her solicitors, or a blend of both, is not at all clear.  For all I know, the plaintiff may have been quite ambivalent about bringing any proceeding for some part or all of the limitation period, and her desire to bring a proceeding has only crystallised since it elapsed.  I simply do not know.

Given that an extension of time involves an indulgence, and amounts to an exception to what Parliament has provided to be the general rule, the lack of any clear explanation for the delay, to be weighed in combination with all other factors, is in my view fatal.”[95]

[95]Ibid at paragraphs [40]-[41]

282Further, there is no explanation for the additional delay in the period from 25 June 2020, when the plaintiff first saw Slaters, until June 2022, when the serious injury application was issued.[96] 

[96]T73

283There was no evidence in the Slaters’ affidavits as to what was actually discussed in that period, it was simply the plaintiff saying he was told time had run out, so make application for an impairment benefit.  This was exactly the situation Macaulay J was describing.[97] 

[97]T74

284There is no requirement that an impairment benefit claim be lodged before a serious injury application is made.[98]

[98]T123

285The plaintiff chose not to come back to Maurice Blackburn after 2010 or to specifically enquire about any time limits because he had decided not to pursue a claim.[99] 

[99]T123

Plaintiff

286The principal submission was the plaintiff had a very brief meeting with Maurice Blackburn, he was told about an impairment claim, his injury was not stabilised, therefore could not be assessed, he would have to come back in a few years for that to happen and then that claim would be progressed.  He was not told about a common law claim and he certainly was not told about a six-year limitation period.[100]

[100]T102

287It was a “leap of faith”, it is “speculation” to say that the plaintiff would have been advised in relation to the common law.[101]

[101]T119

288In Davies v Nilsen,[102] where leave was granted after a delay of twenty years, J Forrest J said:

“However, it is often easy for lawyers (and judges) to fall into the trap of evaluating a lay persons actions through an adversarial legal prism.  Ms Davies was a young woman with no legal training and, in particular, no knowledge of the intricacies of tort law and the statutory modifications in this state.  On her account, she had not been told anything about limitation provisions or common law claims.  Whilst a more prudent person may have sought a second opinion, I do not regard her lack of action in this period as fatal.  I take a similar view of the delay in consulting Clark and Toop after receiving the advice of Dr Pastore.”

[102][2015] VSC 584 (“Davies”) at paragraph [106]; this case was an assessment

289While it is accepted that in a five or ten-minute discussion with Maurice Blackburn the plaintiff had some knowledge that he had another legal entitlement, it is not accepted that knowledge extended to a common law claim or anything to do with a six-year limitation period.[103]

[103]T99

290The plaintiff’s evidence about it being too early and his condition not having settled is consistent with an impairment claim.  “Par for the course in this jurisdiction, an impairment claim is usually run before the serious injury.”[104]

[104]T99

291Counsel accepted that the plaintiff thought he was getting on with his life and he did nothing, “and they had to accept that”, and it was also accepted that there was no deterioration in the plaintiff’s condition.  It was submitted, however, that the thing the plaintiff did nothing about was an impairment claim.[105]

[105]T100

292This is not a case where the plaintiff made a deliberate decision.[106] 

[106]T101`

293It was not accepted the plaintiff’s viva voce evidence was different to what he deposed and did not help his explanation for his delay in the common law claim.[107]`

[107]T101

294The plaintiff was only thinking about an impairment benefits claim when he left Maurice Blackburn because when he went to Slaters, the first thing he is told is, “We’re going to put [in] an impairment benefit claim”, he does not say “What about the common law claim they told me about”.[108]  `

[108]T117

295All the plaintiff knew when he left Maurice Balckburn was that he had to have a stabilised injury and that was more consistent with the impairment benefit, which counsel agreed the plaintiff did not know about anyway but he pursued as soon as he saw Slaters.[109]

[109]T118

Findings

296I found the plaintiff to be a truthful witness[110] who was prepared to give answers which at times were not helpful to his application.

[110]T97

297His affidavit evidence as to the reasons for the delay clearly differs from his viva voce evidence in relation thereto.[111]

[111]T116-117

298I reject counsel for the plaintiff’s submission it does not.

299The plaintiff’s second affidavit was silent on a number of relevant issues but the brief explanation for delay was that he was not given any advice at a one-off meeting at Maurice Blackburn’s Geelong office about the relevant issues – common law claim and the limitation period – and that all that was discussed was wait to see how he went in his new job and see how his recovery went, leaving him quite some time before he would be able to pursue any claim.  He did not leave with any understanding of the right to bring a common law claim.  The situation only changed having attended Slaters after having seen the advertisement in 2020. 

300However, the plaintiff gave a different, more detailed account in the witness box. 

301He agreed he was aware of the possibility to bring a lump sum damages kind of claim before he went to Maurice Blackburn in September 2010.  His friend had told him it was awkward to make a claim against your employer when you were still in its employ and that if you make a claim, you are not entitled to any ongoing medical treatment.  Having been told this, the plaintiff thought he would rather have ongoing medical expenses than a lump sum.   

302Unlike the case of Davies,[112] relied on by the plaintiff, this is not a situation where one cannot assume an experienced personal injuries lawyer would have told the plaintiff about his rights, as on his own evidence, the plaintiff knew already he had an entitlement to lump sum damages having spoken to this friend.   

[112]Supra

303By the time the plaintiff saw Maurice Blackburn, he had left the defendant’s employ.  He had had two back operations.  He left Maurice Blackburn with the understanding it was going to be a long drawn process, that was going to affect his life even more.  He was happy to have his health back and a new job.  He considered whether it is really worth making the claim or to just get on with his life – he chose to do the latter.  Even after he saw how he went with his new job, “[I] made the decision then to move on in … [my] life after having turmoil of two, three plus years at this point in time”.[113]

[113]T51

304Further, significantly, he agreed it was wrong to suggest that until he saw the Slaters advertisement in 2020, he did not think he could bring a claim – because he probably knew he could.  “That was just a reminder that was put in front of him.”[114]

[114]T52

305It was really more a case of the plaintiff just doing nothing than making a deliberate decision not to pursue a common law claim. 

306Although he conceded his condition ultimately stabilised, he chose to do nothing.  There was no deterioration in his medical condition causing him to seek further legal advice.  Ten years after seeing Maurice Blackburn, sitting around during  COVID, he saw the advertisement and then decided to see Slaters.   

307I reject the submission that all the plaintiff knew about was an impairment claim.[115]

[115]T100

308It is difficult to see how, when the plaintiff’s case is that he was given no legal advice about any entitlements, that he was only ever thinking about an impairment claim – it makes no sense.

309While it is often first in time, there is no requirement that an impairment benefit claim be lodged before a serious injury application is made.

310The plaintiff is asking for an indulgence in circumstances where there is not a reasonable explanation for delay.

311The Slaters’ affidavits do not provide any assistance to the plaintiff on this issue.  They do not give any insight into the true reason for the delay and the plaintiff’s knowledge of his entitlements.  They are silent on any discussions with him about common law entitlements or the limitation period when he first attended their office.  There is no mention of what he told them about the delay or what they told him of the ramifications thereof – other than he was out of time.  The solicitors just describe the impairment benefits claim made on the plaintiff’s behalf and, two years later, application being made for a serious injury certificate. 

312These matters are also germane to considerations other than the reasons for delay. They are also highly pertinent to the factors specified in s23A(3)(e) – whether the plaintiff acted “promptly and reasonably” once he knew of the act or omission of the defendant to which his injury was attributable, might be capable at that time of giving rise to an action for damages on his part. On the limited evidence available, I can draw no confident conclusions in the plaintiff’s favour about the steps he took to obtain legal advice or the nature of that advice.[116]

[116]Arisoy v Yoogalu Pty Ltd t/a Harvey Norman (supra) at paragraph [29] per Macaulay J

313The onus is on the plaintiff to persuade me that it is just and reasonable to extend the limitation period.  It lies on him to satisfy me that there is an explanation for the delay in issuing proceedings before the expiration of the limitation period that would make it just and reasonable to be extended.

314On the limited material presented, much of the reason for delay remains a mystery.  The explanation such as it is, is unsatisfactory.[117]  

(b)    The extent to which, having regard to the delay, there is or is likely to be prejudice to the Defendant

[117]Ibid at paragraphs [28] and [40] per Macaulay J

315The plaintiff alleges he suffered injury lifting a defective roller door on 16 May 2007 and also injury during the course of employment between 8 October 2006 and 16 May 2007. 

Defendant’s submissions

316In the present case, there is both general and specific prejudice.[118]

[118]T66

317The authorities establish that mere delay itself when it is inordinate may be taken as evidence of prejudice.[119]

[119]Myer Melbourne Ltd v Hammond [1984] VR 40 at paragraph [49]

318There were a number of matters relevant to the issue of prejudice which make the prospects of a fair trial unlikely. 

(a)    The defective roller door  

319In short, the argument as to prejudice was lack of reference to the malfunctioning roller door until mid-2022, denying the defendant an opportunity to investigate that issue, rather than its current position of there being no record of the plaintiff ever reporting the issue and nobody can remember him reporting it.[120]

[120]T90

320There was no investigation into any faulty mechanism relating to the roller door.  Even if it was likely the plaintiff reported the fault, it is obviously not something the defendant appreciated investigating.  If so, it would have recorded that on the incident form in terms of any action taken.[121] 

[121]T77

321While there was an accepted WorkCover claim which was investigated, that is different to what is relevant to a common law claim.  As Goulden AsJ said in Walker v Transport Accident Commission:[122]

“I accept the defendant’s submission that the role of the defendant as manager of a no fault transport accident benefits scheme investigating an application for the payment of benefits is very different to the position it now assumes as the nominal defendant in place of an unidentified driver defending a negligence claim.  I also accept that the delay has prevented it from pursuing all investigations appropriate to its defence of the litigation that it may have pursued had the proceedings been issued against it within the limitations period.  For example, attempts to locate additional witnesses may have been more extensive than seeking to interview persons working in businesses near the accident scene on one occasion outside usual business hours.  Likewise, its attempts to identify the driver, including by securing copies of the Triple Zero call recordings prior to their loss or destruction, may have been more extensive with a possible result that the driver could have given evidence and responded to the particulars of negligence alleged in the claim.  The defendant has also been deprived of the opportunity to conduct further inquiries with Victoria Police, Ambulance Victoria and other witnesses between June 2007 and 19 August 2019.”

[122][2025] VSC 13 at paragraph [36]

(b)    Course of employment

322Not only was there no reference to the door getting stuck in claim documents or histories to doctors, there was no reference to injury suffered throughout the course of employment until the plaintiff’s 2022 affidavit.[123]

[123]T76

323In respect of this allegation of negligence, the defendant has lost the ability for a contemporaneous examination of the circumstances.[124]  It might have been able to investigate and meet a case in terms of training and induction risk assessments and hazard identifications if there had been a contemporaneous complaint.[125]

[124]T86

[125]T87

324The two 2008 documents seeking funding for household help did not put the defendant on notice of any allegation of injury during the course of employment.[126] 

[126]T124

(c)    Memory of witnesses

325This is a case which will turn very much on oral evidence and there were difficulties with this evidence on both sides.  The affidavits set out that the memory of potential witnesses is degraded.  This is also the case with the evidence of the plaintiff’s witnesses.[127]  It is now more than fifteen years since the cause of action accrued.[128] 

[127]T68

[128]T75

326The plaintiff now wants to assert there was a fault in the door and the defendant’s material indicates the difficulty in refuting that, particularly the recollection of its witnesses.[129] 

[129]T78

327Joanne Hammond recalled the plaintiff hurt his back but had no recollection of how he did so.  She did not recall any complaints made about problems with the roller door getting stuck on closing.  She had some recollection about the system for recording faults and complaints and recalling something in a Word document, not recalling a spreadsheet, and also there were hard copy records of repairs.  She can remember her involvement in formal daily meetings.  She could recall servicing according to the service schedule and the use of a lubricant spray if the door was sticky.  She had no recollection of the rollers being run off the roller mechanism, or becoming dented or out of alignment through age and use, as Mr Dott deposed.[130]

[130]T79

328The plaintiff’s evidence in many respects went to what he “would” have done or said and makes it harder to put to the defendant’s witnesses and challenge them. 

329Mr Dott said he did not make any complaints to the defendant in the relevant period regarding the doors and Mr Greskie seems to be talking about a later period, as he did not start work with the defendant until 2009.[131]

[131]T85; Ms Harold’s affidavit notes Mr Greskie was employed by the defendant between 3 December 2007 and 7 June 2009

330The flavour of the evidence that the plaintiff seems to want to bring is that the defendant knew but it was not particularised how it should have known and so, the case that the defendant is to meet.  So it is quite prejudicial if the plaintiff has scope, if leave were granted, to go beyond what he has indicated in this application – which is the scope of the knowledge – he deposed to a number of conversations where he cannot say when or where or the full substance thereof and now one conversation with Ms Hammond he described in the witness box.[132]

[132]T85

331Mr Dott’s viva voce evidence was the first time it had been alleged that trolleys hit the roller door tracking.[133]  His 2011 Incident Report does not relate to the same issue as in the plaintiff’s case.  It is a different type of fault – it is about injury he suffered as a result of increased frequency of opening and closing the door during a shift, not the door being stuck.[134]  The response to that complaint – adding new handles – was not reflective of a problem with the door being stuck.[135] 

[133]T80

[134]T94

[135]T95

332Mr Dott does not take the plaintiff anywhere and highlights the vagaries of memory, he himself saying – “It was a long time ago.  Things were intertwined.  There were a lot of problems with that place.”  Memories fail as time progresses and that makes it difficult or tends against a likelihood of a fair trial.[136]

[136]T95

(d)    Missing documents

333There are a number of documents which bear upon the claim which are now lost or no longer able to be located.[137]

[137]T68

334Fleet accident records generally were kept for two to seven years.[138]  There are truck log books and maintenance records which would have existed or did exist, yet no longer exist.[139]

[138]T80

[139]T81

335Ms Hammond had talked about a consultant being employed to review work practices after the move to the McKeller Centre in 2006.  She deposed to there being some risk assessments done, but remembered there were more.[140]

[140]T89

336It was totally unknown what the backup tape, referred to by Ms Harold contained, but to think about them was totally speculative.[141]  Unless the Court thought it was a reasonable expense, it should act on the basis that there are no further documents available.[142]   It would be a situation, here, of extensive trawling through databases, but without any kind of real belief they would contain relevant documents.  In any event, the plaintiff’s complaint was said to be oral.[143]

[141]T83

[142]Volunteer Fire Brigades Victoria v CFA (Discovery Ruling) [2016] VSC 573

[143]T84

Plaintiff’s submissions

337The fundamental question is whether or not the degree of prejudice is sufficient to inhibit a fair trial.  Here, all the witnesses are alive, whereas in other cases, they were deceased.  While there are some documents missing, there are heaps of documents available.[144] 

[144]T121

(a)    The defective roller door  

338The plaintiff’s earlier descriptions of the incident cover the situation of the door  being stuck.[145] “An incident involving pulling a truck door is synonymous with a stuck door.”[146]  

[145]T108

[146]T109

(b)    Course of employment

339The course of employment scenario had been longstanding knowledge within the defendant’s camp.[147]  “It was not a seed that suddenly grew when he went to see the solicitors much later on.”[148] 

[147]T104

[148]T105

340The defendant was aware of an allegation of injury during the course of employment by reason of two 2008 WorkCover household help claims. 

341The first, dated 20 March 2008, set out the plaintiff reported he experienced pain which became progressively worse and the symptoms were aggravated by an incident which involved pulling a roller door.[149]

[149]T102

342The second dated 29 October 2008, mentioned the plaintiff sustaining a lower back injury in the course of employment, which became progressively worse and became exacerbated by the one incident.[150]

[150]T103

(c)    Memory of witnesses  

343While it was accepted that the effluxion of time can cause general prejudice, that is limited in the current case, because both potential witnesses, the plaintiff and Mr Dott, accepted their memory was not as good now as it might have been years ago, but that said, gave very firm evidence on the fundamental aspects of the cause of action against the defendant.

344The strongest point is the strength of the actual lay oral evidence, the plaintiff and the two lay witnesses having firm distinct recollections.[151] 

[151]T111

345That fundamental evidence of the plaintiff being 100 per cent sure of making the complaint would “see this proceeding over the line at common law or for breach of statutory duty on its own”.[152] 

[152]T109

346Mr Greskie recalled the issue with the roller doors the plaintiff described and he specifically recalled reports to Mr Knocker.[153] 

[153]T114

347As the Court said in Prince Alfred College,[154] there can be a presumption of general prejudice, but it was said to be limited in this case.  Two principal witnesses have been cross-examined at reasonable length on reliability and they have given strong evidence on the fundamental aspects of those issues.[155]

[154]Supra

[155]T115

348It cannot be found that there has been specific prejudice because if the defendant had a system in place, then the evidence from the plaintiff’s witnesses was sufficient to justify the proposition that either the system was inadequate to meet the risk or the system simply was not complied with, and either is good enough for the plaintiff to succeed at common law.[156]

[156]T115

349The defendant’s witness did not need to be cross-examined; a lack of recollection is not a denial that there was a problem.  At this stage in proceedings, none of the defendant’s affidavits present an obstacle to the plaintiff.  Naturally in the context of common law, the plaintiff would be putting different versions of facts to them, but they do not adversely harm the plaintiff in the present application.[157]

[157]T115

(d)    Missing documents

350While the defendant might have said they had lost evidence about the system, assuming the systems existed, the WP-40 spray, or whatever, they were not sufficient to cure the deficiency that caused the injury to either man.  There has not been a loss of evidence of systems.  In any event, the discovery process has yet been exhausted.[158]

[158]T110

Overview

351Prejudice is a highly relevant consideration.  The key factor in determining the question of prejudice is that of an acceptably fair trial.[159]

[159]Gordon (supra) at paragraph [79] per J Forrest J

352The defendant did not become aware of the allegations of negligence, in particular, the defective roller door, until June 2022, fifteen years after the injury and nine years after the expiration of the limitation period.

353The many accounts of the incident circumstances given by the plaintiff thereafter make no mention of the door being stuck.  That situation could not be said to be included in the various accounts given by him.[160]  These accounts could  encompass repetitive lifting, maybe bending over, or may be the posture that the plaintiff assumed while bending over.[161] 

[160]T107

[161]T108

354The defendant has therefore lost the ability to investigate the functioning of the roller door and any malfunction as at the said date as the truck is no longer in operation.  This is a significant prejudice to the defendant.[162]

[162]Welsh v Adecco Industrial Pty Ltd & Ors [2017] VSC 44 at paragraph [50] per T Forrest J

355The 2008 home help claim documents would not have alerted the defendant to a course of employment allegation and have nothing to do with one.[163]

[163]T103

356Investigations for a WorkCover claim are directed to issues other than liability which is central to a common law claim. 

357While all witnesses are still alive, there are real problems with their memory of events now eighteen years ago.

358The plaintiff’s evidence about complaints he made to Ms Hammond about the roller door was somewhat of a moving feast.  He deposed that he conveyed his complaints to Ms Hammond as to the deficiencies on this particular door on repeated occasions, the dates on which he was no longer able to recall.  While initially in cross-examination he was 100 per cent sure he gave her information around damage to the roller door,[164]  later in cross-examination, he agreed that the highest he could say is what he thought he would have told her, but he now did not have a recollection of what he told her.[165]

[164]T38

[165]T32

359There are no documents still in existence regarding any complaint about the roller door or any servicing or repair of the door. 

360While all the defendant’s relevant witnesses are alive, they have deposed they cannot recall the roller door malfunctioning or any complaint in relation thereto at that time – now eighteen years ago.  They describe ongoing maintenance of the defendant’s trucks which were regularly serviced and truck logbooks and maintenance records which would have existed but no longer exist.

361Mr Dott’s evidence was not that helpful for the plaintiff.  Having deposed to having suffered injury in similar circumstances to the plaintiff, he seemed somewhat confused and uncertain about his incident in 2011.  His reported incident involved a different issue with the roller door – increased opening and shutting during a route.  He made no complaint about the roller door getting “stuck”.  He conceded “[I]t was a long time ago and things were all intertwined.  There was a lot of problems with that place and their mechanisms of getting over things.”[166]

[166]T61

362It is not clear how Mr Greskie’s evidence assists the plaintiff.  While deposing he worked with the plaintiff for six months post incident, he also said he worked for the defendant from 2009 to 2011 – some time after the plaintiff had left the defendant’s employ.  Further, Ms Harold deposed that Mr Greskie was employed from 3 December 2007 to 7 June 2009 – also after the plaintiff had left.

363While some risk assessment documents are still in existence, Ms Hammond and Mr Knocker were aware of others that are missing.  Further, in her affidavits, Ms Harold detailed many searches being undertaken for numerous documents and where no relevant documents were found.[167]

[167]Paragraphs [193]-[199] and [202]-[207] of my judgment

364The lack of any clear explanation for delay is to be weighed in combination with all the other relevant factors in s23A.

365In my view, an acceptably fair trial is not possible.

366The plaintiff has failed to demonstrate that it is just and reasonable to extend the limitation period.  His application therefore must be dismissed. 

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