Craig v VWA
[2018] VCC 1117
•26 July 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-16-05785
| ALEXANDER THOMSON CRAIG | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY and STAR TRACK EXPRESS PTY LIMITED | First Defendant Second Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15, 16 & 19 March 2018 | |
DATE OF JUDGMENT: | 26 July 2018 | |
CASE MAY BE CITED AS: | Craig v VWA & Anor | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1117 | |
REASONS FOR JUDGMENT
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Subject: Industrial accident.
Catchwords: Limitation defence; Extension of time; Delay; Prejudice
Legislation Cited: Limitation of Actions Act 1958 s23A;
Cases Cited: Tsiadis v Patterson (2001) 4 VR 114: Brisbane South Regional
Health Authority v Taylor (1996) 186 CLR 541; Prince Alfred
College Inc v ADC (2016) 90 ALJR 1085; Welsh v Adecco
Industrial Pty Ltd and Ors [2017] VSC 44
Judgment: Application refused against both defendants
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. H. Stanley | Adviceline Injury Lawyers |
| For the First Defendant For the Second Defendant | Mr B. McKenzie Ms D. Costaras | Thomson Geer Lawyers Moray & Agnew Lawyers |
HIS HONOUR:
Introduction
1 Alexander Craig seeks leave pursuant to section 23A of the Limitation of Actions Act 1958 (“the Limitations Act”) to extend the period within which he may commence proceedings in respect of an injury to his right knee sustained in the course of his employment on 2 September 2004.
2 At that time he was employed on a casual basis by Compass Recruitment (“the employer”). The employer was a labour hire company and Mr Craig was performing duties at premises occupied by Star Track Express Pty Ltd (“the host employer”) in Tullamarine.
3 Mr Craig’s application seeks leave to commence proceedings against both the employer and the host employer who each oppose leave being granted.
4 Mr Craig relies upon his own affidavit sworn 12 September 2017 and an affidavit sworn by his solicitor, Liat Blacher, on 5 September 2017. Mr Craig and Ms Blacher were each required for cross examination and gave evidence during the hearing, which proceeded over three sitting days. Further documents were tendered by each party during the course of the hearing and comprehensive submissions were made by all parties.
The facts
5 Mr Craig commenced with the employer in mid-2004 and was assigned to perform duties with the host employer on six or eight occasions.[1]
[1]Transcript (“T”) 43, Line (“L”) 5 to L 21
6 He sustained an injury to his right knee on 2 September 2004 when he was manually loading a Perth-bound trailer at the host employer’s premises in Annandale Road, Tullamarine.[2]
[2]Exhibit 1D-5
7 He notified a Mr Denis Mills from the employer on the following day by telephone.[3]
[3]T 33, L 20 to T 34, L 5
8 The incident had occurred at about 6 pm and Mr Craig tried to find a line supervisor without success, and reported his incident to two women at the freight office a few minutes later. He did not know these two women, but believed they were Star Track employees. They took him to the Western Hospital in St Albans. He was later picked up by one of these women when discharged from the hospital. He then drove his own car home and did not believe that he filled in an incident report at Star Track. He did not subsequently return to Star Track’s site again.[4]
[4]T 35, L 20 to T 37, L 22
9 Mr Craig took a period of approximately two weeks off work following the incident, and in approximately January 2005 commenced physiotherapy.[5]
[5]Exhibit B [5] & [6]
10 On 6 January 2005 he completed a WorkCover claim form which was completed by Mr Shayne Somers on behalf of the employer on 7 January 2005.[6]
[6]Exhibit 1D-5
11 Physiotherapy treatment was provided by Mr Mark Backway from 18 January 2005 to 25 July 2006.[7]
[7]Exhibit 1D-5
12 In May 2005 Mr Craig attended a general practitioner in Sunbury who referred him to an orthopaedic surgeon, Mr McLean, who initially saw him on 4 August 2005. He underwent an MRI scan of the right knee on 19 August 2005, and following a review by Mr McLean, arthroscopic surgery was performed on 23 September 2005.[8]
[8]Exhibit B [8] to [12]
13 In late 2005 or early 2006 Mr Craig commenced employment as a custodial officer at the Melbourne Custody Centre, initially on a casual basis, before being permanently employed full-time. He continued in this employment until 22 May 2011 when he sustained unrelated injury and ceased his employment.[9]
[9]Exhibit B [15]
14 Mr Craig suffered further injury to his right knee in late January 2009 requiring him to attend his general practitioner for treatment at least on 6 March 2009 and 25 July 2009. He agreed with a clinical note stating:
“Slipped during training at work, late January 2009. Was dragging feet side to side on rubber mats and the right foot refused to move. Pain on medial compartment of the knee.”[10]
[10]T 48, L 18-25
15 He agreed that he may have taken a few days off work and further agreed that from time to time the knee would “play up.”[11] Mr Craig agreed in evidence that he had suffered niggling pain from 2009, but “concerning pain” in about mid‑2013 before being referred to another orthopaedic surgeon in 2014.[12]
[11]T 48, L 5 to T 51, L 6
[12]T 54, L 13-22
16 He had attended the office of his present solicitors on 30 March 2012 in relation to injuries suffered in the course of his employment as a custodial officer, but did not at that time seek any legal advice in relation to his knee injury.[13]
[13]Exhibit B, p 3[15] & [16]
17 After ceasing employment as a custodial officer Mr Craig obtained work at Melbourne Airport doing traffic management. After working for three days in about April 2014 he attended his general practitioner and was referred to another orthopaedic surgeon, Mr Russell Miller, in relation to his knee.[14]
[14]Exhibit B, p 4[19] to [20]
18 Mr Craig attended Mr Miller on 25 May 2014 and surgery was recommended. Mr Miller sought approval of the WorkCover insurer to accept liability for the surgery to be performed as a consequence of the original September 2004 injury.[15]
[15]Exhibit B, p4 [21]
19 On 11 June 2014 Mr Craig attended his present solicitors for legal advice and was then informed of the potential common law proceeding and the time limits set out in the Limitation Act.[16]
[16]Exhibit B, p 4 to 5 [22]
20 On 16 December 2014 surgery was performed by Mr Miller on Mr Craig’s right knee. Subsequently as a result of ongoing pain a total knee replacement was performed on 16 August 2015.[17]
[17]Exhibit B, p 5[24] to [25]
21 In late December 2014 and early January 2015 Mr Craig’s solicitors were negotiating a potential common law entitlement arising out of the 2011 injuries. This was resolved in late February 2015.[18]
[18]Exhibit F, p 4[13]
22 On or about 6 November 2014 Mr Craig’s present solicitors served a claim for impairment benefits on the employer’s insurer. On 10 November 2014 a copy of that claim was forwarded to the host employer under cover of a letter which stated:
“We also intend to subsequently assist Mr Craig in a possible common law claim for damages. Should he obtain a serious injury certificate for the injuries he suffered on 2 September 2004 we would propose to join you as a Defendant in any such proceedings.”
23 The letter also made reference to provisions in the Accident Compensation Act 1985 which impacted on the calculation of time limits under the Limitations Act.[19]
[19]Exhibit F, Annexure LZB-1
24 On or about 19 May 2015 Mr Craig’s solicitors served a Serious Injury Application on the employer. A copy was also sent to the host employer, but apparently to an incorrect address. On 19 October 2015 a further copy of the Serious Injury Application was served on the host employer at its correct address.[20]
[20]Exhibit F, p 4 [15] & [16]
25 A serious injury certificate in respect of both pecuniary loss and pain and suffering was conceded on behalf of the employer on 31 August 2016.[21]
[21]Exhibit F, p 4[18]
26 Following the mandatory pre-litigation conferencing process a writ was issued against both defendants on 22 December 2016.[22]
[22]Exhibit F, p 5[21] & [22]
27 Following discussions between the solicitors representing the various parties the employer indicated on 20 June 2017 that the provisions of the Limitations Act would be relied upon. The host employer indicated a similar course on 3 July 2017.
28 The plaintiff’s solicitors issued a summons seeking an extension of time in accordance with the Limitations Act on 15 February 2018.[23]
[23]The summons actually sought an extension pursuant to s 27K of the Limitations Act. The parties were in agreement that any extension would be granted pursuant to s 23A of that Act.
The legislative framework
29 Section 23A(2) of the Limitations Act gives a court power to order an extension of time to enable an action to be brought if it is just and reasonable to do so. The court’s power is to be exercised subject to sub-section 3 which sets out a non‑exhaustive list of matters to which a court must have regard in deciding such an application. The matters set out in the legislation are as follows:
“(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.”[24]
[24]Limitation of Actions Act 1958 section 23A(3)
Analysis
30 The parties were in agreement that the plaintiff bears the burden of demonstrating that the justice of the case requires the extension of time sought by him.[25] There was also agreement that the plaintiff’s cause of action accrued on or about 2 September 2004 therefore compliance with the provision of the Act would have necessitated a proceeding being commenced not later than 1 September 2010.
[25]Brisbane South Regional Authority v Taylor (1996) 186 CLR 541 at 551 to 553 and Clark v McGuinness [2005] VSCA 108 at [62] to [63]
31 The present proceeding was not commenced by writ until 24 February 2017. Further, the summons seeking an extension of time was not filed until 15 February 2018. Therefore the period of “delay” referred to in section 23A(3) is the whole of the period from the accrual of the cause of action until the filing of the summons; in the present case, 13 years and five months.
32 On any view the length of the delay is very considerable in Mr Craig’s case.
33 The reasons for the delay are essentially focused on Mr Craig’s own belief that his injury had recovered following treatment in 2004 and 2005, and he had only become aware of any relationship between the knee pain developing in 2013 and the original 2004 injury after attending the orthopaedic surgeon, Mr Russell Miller, in May 2014. He then describes in his affidavit his attendance on his present solicitors in June 2014 and the advice he then received in relation to the limitation period.[26]
[26]Exhibit B [18] to [22]
34 Much of the cross-examination by counsel representing both defendants focused on the extent to which Mr Craig actually knew of difficulties with his knee potentially related to the 2004 incident prior to 2014.
35 When cross-examined it was clear that Mr Craig agreed that following the initial treatment on his right knee during 2005 he had accepted that he would change both the nature of his employment and modify his recreational activities.[27]
[27]T 46, L 6-16 and T 56, L 2-21
36 Of more concern was the cross-examination concerning Mr Craig’s medical attendances in relation to his right knee in the first half of 2009. He accepted that the clinical notes from Dr Varane had recorded a history of him slipping during training at work in late January 2009 and attending the medical clinic on 6 March where an x-ray was ordered, and again on 25 July 2009.[28]
[28]T 48, L 5-25
37 When further pressed, Mr Craig agreed that he may have undergone a further x-ray of the knee in July 2009 and been given a referral back to his original orthopaedic surgeon. He did maintain that he could not recall seeing Mr McLean in 2009.[29]
[29]T 50, L 24 to T 51, L 30
38 Mr Craig was also cross-examined in relation to the history recorded by Mr Miller, orthopaedic surgeon, on 29 May 2014. Mr Craig accepted that he had:
“… little darts of, well pain. But it was in the couple of months leading up to seeing Mr Miller was where the pain came.”[30]
[30]T 53, L 18
39 He did not accept that he had told Mr Miller that he had increasing pain and discomfort in the right knee “over the last few years.”[31]
[31]T 52, L 12 to T 53, L 20
40 Further matters relevant to the issue of delay were dealt with by the plaintiff’s solicitor, Ms Blacher, in her affidavit affirmed on 5 September 2017. Ms Blacher was also cross-examined.
41 In her affidavit Ms Blacher noted the plaintiff’s attendance on her firm in relation to claims related to cardiac and psychological injuries sustained in 2011 with a different employer. Her affidavit noted Mr Craig’s initial instructions concerning the 2004 incident which were given on 11 June 2014. She then noted the progress of both an impairment claim and a serious injury application which resulted in the concession of serious injury on 31 August 2016.[32]
[32]Exhibit F[5] to [18]
42 Ms Blacher’s affidavit went on to describe further progress of Mr Craig’s common law action noting the issuing of a writ against both named defendants on 22 December 2016. She had not at that time been personally conducting the litigation. Her direct involvement in running the matter commenced on 20 February 2017.[33]
[33]Exhibit F[25]
43 When Ms Blacher was cross-examined she agreed that a letter written by her predecessor, Ursula Donovan (now McBride) on 27 March 2012, made reference to a six year limitation period.[34]
[34]Exhibit 2D1
44 Ms Blacher also agreed with the contents of file notes supporting the statement in her affidavit that Ms Donovan had advised the plaintiff on 11 June 2014 that the six year limitation period had already expired.[35]
[35]Exhibit F[22] and T 97, L 26 to T 98, L 16
45 During cross-examination Ms Blacher was asked to review various documents retained by her office relating to both claims commenced by Mr Craig. She agreed that there was a letter from a WorkCover insurer dated 27 May 2013 addressed to her office, which included Mr Craig’s initial claim for compensation dated 6 January 2005 and letters from the treating surgeon, Mr McLean, to the then general practitioner Dr Beitner dated 26 September 2005 and 21 October 2005.[36]
[36]Exhibit 1D-5 and T 111, L 27 to T 112, L 24
46 Ms Blacher also agreed that an examination of the documents did not show any reference to the material provided by the insurer in late May 2013 being given any consideration until 11 June 2014.[37]
[37]T 113, L 5-12
47 Ms Blacher further agreed that once a serious injury application had been lodged in relation to Mr Craig’s right knee injury, her firm had received response material including a draft defence dated 28 October 2015. She agreed that the draft defence pleaded a limitation of actions defence and that material would have been received on or about 28 October 2015.[38]
[38]T 113, L 26 to T 114, L 31 & Exhibit 1D-4
48 The employer relied upon an affidavit of Elise Williams, solicitor, sworn 5 October 2017. Ms Williams was not required for cross-examination. Her affidavit deals principally with the issue of prejudice, but also makes reference to the delay noting Mr Craig had submitted a WorkCover claim on 7 January 2005, but was unaware of any communication between the plaintiff and either the employer or the WorkCover Authority concerning a potential common law damages claim until the serious injury application was received on or about 19 May 2015.[39]
[39]Exhibit 1D-9 at [2] to [5]
49 The employer relied upon two further affidavits, one from Marian Jane Morton, solicitor, sworn 5 October 2017[40] and another from Andrzej Marczynski, investigator, affirmed 5 October 2017.[41] Neither of these deponents was required for cross-examination. Neither affidavit is relevant to the issue of delay.
[40]Exhibit 1D-10
[41]Exhibit 1D-11
50 The host employer relied upon an affidavit from Lam Mai, corporate claims manager, sworn 1 December 2017.[42] Once again there was no requirement of the deponent to attend for cross-examination. Notwithstanding that there is some equivocation by the deponent as to the occurrence of the plaintiff’s knee injury on 2 September 2004, the affidavit goes on to state that the host employer was only notified of Mr Craig’s claim:
“… in the days before the plaintiff’s solicitors served the plaintiff’s serious injury application on Start Track Express by letter dated 2 September 2016. I recall receiving a phone call from the plaintiff’s solicitor shortly prior to the letter dated 21 September 2016.”[43]
[42]Exhibit 2D-2
[43]Exhibit 2D-2[3]
51 The affidavit goes on to state that the deponent had made enquiries of other employees and there had been no success in locating any records:
“… relating either to the plaintiff’s work at Star Track Express Tullamarine Depot, or to the alleged incident on 2 September 2004, other than a letter from the plaintiff’s solicitors dated 21 September 2016.”[44]
[44]Exhibit 2D-2[7]
52 The position advocated by the plaintiff in relation to the notice given to the second defendant was contained in the affidavit of Ms Blacher.[45] When Ms Blacher was cross-examined by Ms Costaras she accepted the proposition that even if a letter in the form exhibited had been sent to Star Track in November 2014, it was still 10 years after the workplace accident.[46]
[45]Exhibit LZB-1 to Exhibit F in this proceeding.
[46]T 120, L 9-16
53 I am satisfied that the length of the delay was 13 years and five months, that is up to the date when a summons was issued in this application on 15 February 2018. It is clear that each of the defendants had previously been notified of the plaintiff’s intention to commence a common law proceeding, most probably in May 2015 in the case of the employer, and September 2016 in the case of the host employer.
54 I accept that there is a conflict in the evidence between the dates referred to in the affidavit of Ms Blacher on behalf of the plaintiff and those dates referred to by Ms Williams and Ms Mai in respect of the other two defendants. Insofar as there is a dispute it is relevant mainly to the issue of prejudice rather than the delay itself. In any event noting that Ms Blacher was not the file operator at the time in November 2014 when she deposed to notice being given to both defendants, I prefer the evidence of the other two deponents as to the dates upon which notice was given to their respective clients.
55 The plaintiff’s evidence as to the reasons for the delay are primarily focused on his belief that the injury to his knee had fully recovered until he was informed by Mr Miller that the symptoms he was experiencing in May 2014 were related back to the original injury in September 2004.[47]
[47]Exhibit B [21]
56 This evidence does not sit well with the clinical notes showing his attendance on medical practitioners in March and July 2009, and the referral from Dr Clark back to Mr McLean on 25 July 2009.[48]
[48]Exhibits 1D-6 to 1D-8
57 I am able to conclude that Mr Craig did suffer ongoing symptoms in his right knee, probably on an intermittent basis and did not regard those symptoms as sufficiently serious to consider any potential legal action until after his consultation with Mr Miller.
58 Although some consideration must be given to the period of the delay between the time Mr Craig first consulted solicitors in March 2012 until the date this summons was issued in February 2018, I do not regard that period as being particularly relevant for the following reasons:
· It is clear that the plaintiff consulted solicitors initially in relation to the injury sustained in 2011.
· The reference noted by the solicitor at the time of the initial consultation in relation to the right knee was that it was a minor injury.
· Detailed instructions in relation to a potential claim for the right knee were contained in Exhibit H, being a file note of 11 June 2014.
· From that time that his solicitors were well aware of the expiration of the limitation period, but were also aware of the further surgery that had been proposed.
· I could not conclude that there had been any obvious failure by the plaintiff’s solicitors to act reasonably, and indeed promptly from that time.
59 The next issue to be considered is that of prejudice. Underpinning any consideration of the concept of prejudice, whether specific or general, is a consideration of whether the defendants, who would otherwise have the benefit of the limitation defence, are able to be afforded a fair trial of the plaintiff’s proposed case against them. The position of each defendant must be considered separately.
60 The authorities are clear in identifying not only established prejudice, but also the likelihood of prejudice as being relevant to a determination of an application to extend time.[49] The length of the delay must inevitably create some degree of prejudice. In Brisbane South Regional Health Authority v Taylor[50] the High Court identified four rationales for the enactment of limitation periods.
“First, as time goes by, relevant evidence is likely to be lost. Secondly, 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. Thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. … The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.”[51]
[49]Tsiadis v Patterson (2001) 4 VR 114
[50](1996) 186 CLR 541
[51]Ibid at 551 per McHugh J
61 More recently in Prince Alfred College Inc v ADC[52] the High Court confirmed what it described as the two fundamental propositions in the earlier Brisbane South decision.
“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 the 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. … 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.”[53]
[52](2016) 90 ALJR 1085
[53]Ibid at [99] to [100]
62 Both defendants in final address referred me to a recent Supreme Court decision in Welsh v Adecco Industrial Pty Ltd and Others.[54] In that case the trial judge set out principles to be applied in determining these applications. These were stated as follows:
[54][2017] VSC 44
“(a)The plaintiff bears the onus of establishing that it is just and reasonable to order that the limitation period be extended.[55]
(b)Should the defendants establish by evidence that they may suffer prejudice by granting the plaintiff an extension of time, then it is for the plaintiff to demonstrate that that evidence does not demonstrate prejudice.”[56]
(c)The considerations referred to in s23A(3)(a) and (b) of the Act are not to be weighed against each other; the Court must endeavour to ‘synthesise’ the competing considerations ‘in arriving at a conclusion that account of them all.’[57]
(d)The relevant delay is the delay ‘between the accrual of the cause of action and the making of the application for an extension of time.’…[58]
(e) Relevant prejudice to a defendant is that which actually occurred by reason of the delay, 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.”[59]
(f)The longer the delay in commencing proceedings, the more likely it is that there will be prejudice from lost witnesses or fading recollections.”[60]
[55]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 and also Bell v SPC Limited [1989] VR 170, at 174 to 175
[56]Ibid
[57]Tsiadis v Patterson (2001) 4 VR 114 at [33]
[58]Delai v Western District Health Service & Anor [2009] VSC 151
[59]Brisbane South Regional` Health Authority v Taylor (1996) 186 CLR 541
[60]Ibid
63 Mr McKenzie, on behalf of the first defendant, submitted that specific prejudice would flow from the inability of the first defendant to contact witnesses, specifically Ms Irene Prantalos, who is referred to in the affidavits of both Ms Williams and Ms Morton. The affidavit of Ms Marczynski (Exhibit 1D-11) identifies three further potential witnesses, Denis Mills, Brent Loughton and Mark Heinslater. All these potential witnesses were said to have either no recollection of Mr Craig or, in Mr Mills’ case, a recollection of seeing his name on a list of employees. None was aware of the 2004 incident.
64 Further submissions identifying specific prejudice were directed at the loss of documentation, including the records of the Western Hospital where Mr Craig had initially been treated, and the inability of the first defendant to locate any incident or injury report.
65 The references to difficulties locating witnesses and documents had all been referred to in the affidavits of Elise Williams and Marian Morton.[61]
[61]Exhibits 1D-9 & 1D-10
66 It is also significant that the first defendant was placed into liquidation in June 2009 and deregistered on 4 February 2014. The affidavit of Ms Morton[62] sets out details of the solicitor’s contact with the liquidator and her subsequent inspection of documents in September 2015 prior to Ms Williams’ involvement in the matter.
[62]Exhibit 1D-10
67 I accept that the first defendant has established prejudice by reason of the inability to contact witnesses or to examine documents of relevance to the circumstances of Mr Craig’s initial injury.
68 Ms Costaras on behalf of the second defendant identified actual prejudice to her client as stemming primarily from the absence of the identification of the particular trailer where Mr Craig maintains he suffered injury. Additionally the absence of any specific work records or incident reports relating to Mr Craig was also referred to in submissions. Once again I am satisfied that there is actual prejudice established on behalf of the second defendant.
69 Mr Stanley, on behalf of the plaintiff, set out the reasons for the delay as follows:
· The plaintiff believed that the right knee injury sustained in September 2004 had completely resolved following treatment in that year and 2005.
· The plaintiff remained unaware of the severity of his right knee injury until he attended Mr Miller in May 2014.
· The plaintiff was only advised of his entitlement to make a common law claim in respect of his right knee when he attended his solicitors in June 2014.
70 It was further submitted that Mr Craig had acted promptly in seeking legal advice when he first became aware of the severity of his injury. In an outline of written submissions, and indeed in final address, he maintained this submission (which essentially relied on the proposition that Mr Craig was unaware of the severity of the injury until seeing Mr Miller in 2014).
71 Mr Stanley challenged the issue of prejudice submitting that each defendant had access to medical records and medical reports to address the issue of damages. He further submitted that each defendant was on notice of the potential cause of action from no later than 2014, and could reasonably have taken steps at that time to investigate liability or preserve any evidence relevant to liability.
72 The submissions on behalf of Mr Craig also canvassed the other relevant issues set out in section 23A(3) including the extent to which the plaintiff had acted promptly and reasonably once he knew that the act or omissions of the defendant might be capable of giving rise to an action for damages. On that issue Mr Stanley submitted that Mr Craig had acted promptly in attending Adviceline Injury Lawyers in June 2014 shortly after receiving the advice from his surgeon that his then condition was related back to the 2004 incident.
73 Mr Stanley’s submission continued noting that the matter had been promptly progressed by his solicitors with an impairment benefits claim being lodged in November 2014.
74 The final matter addressed concerned the steps taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received. On this issue Mr Stanley submitted that the plaintiff had sought medical treatment and lodged a WorkCover claim promptly following the 2004 injury. Following the resolution of symptoms Mr Craig formed the belief that his injury had resolved and did not seek legal advice thereafter until 2014.
Conclusions
75 The length of the delay in this case I have found to be 13 years and five months. It is a very considerable period of time which must necessarily impact on the recollection of potential witnesses. Indeed on the evidence before me a number of potentially valuable witnesses identified by each defendant either cannot be contacted, or have no recollection of the events.
76 The reasons for the delay were said to be principally Mr Craig’s lack of knowledge of the extent of his injury. I find this difficult to reconcile with the evidence from the medical records referring to treatment and further investigations in 2009, which was prior to the expiration of the limitation period.
77 Nevertheless, I do accept that Mr Craig was engaged in different employment and suffered further unrelated injuries which undoubtedly were matters of concern to him, at least from May 2011 when he suffered his episode of atrial fibrillation and psychological injury. I also accept that at the time he initially consulted his current solicitors in March 2012, he was not concerned about his right knee injury. As a matter of probability this situation continued until after he had been informed by Mr Miller of the potential relationship between his original injury and the subsequent deterioration of his right knee.
78 It is appropriate in this case to consider the matters to which I have just referred in synthesising the factors to be taken into account as set out in section 23A(3). I agree with the approach that was taken by His Honour J. Forrest J in Davies v Nilsen[63] where he stated:
“… it is often easy for lawyers (and judges) to fall into the trap of evaluating a lay persons actions through an adversarial legal prism.”[64]
[63][2015] VSC 584
[64]Ibid at [106]
79 His Honour then went on to grant leave in that case, having considered what the real issues were likely to be at trial. In that case the claim of prejudice, although established, was found to be not sufficient to inhibit a fair trial. His Honour stated:
“Whilst there is a degree of prejudice (including that of general prejudice) in the context of a case in which there is no real contest on liability and the notes and reports of the treating doctor are there to be examined by all, I do not regard this element as fatal to the application.”[65]
[65]Ibid at [110]
80 Even if I accept in totality Mr Craig’s explanation as to the reasons for the delay (and I am not convinced that I should do so), he still has the onus to satisfy me that it is in the interests of justice to extend time in the circumstances of this case.
81 I am satisfied on the evidence before me that each of the defendants has suffered established prejudice. I am further satisfied that this is a case which is in no way clear cut on the question of liability. I am also satisfied that the passage of time must necessarily impact on the ability of any court to ensure that the parties receive a fair trial.
82 The matters set out in the draft statement of claim[66] allege the plaintiff’s injury occurred as follows:
“5. On or about 2 September 2004, in the course of manually loading a trailer with freight at the premises the plaintiff twisted his right knee and suffered injury (‘the incident’).”
[66]Exhibit 1D-3
83 In paragraphs 7 and 8 of that document the plaintiff’s claim against each defendant is particularised with respect of negligence and breach of statutory duty. Given the lack of any documentary evidence or any lay witnesses having any recall of these events, other than Mr Craig, it is in my view untenable to suggest that either defendant could possibly have a fair trial of a negligence case when Mr Craig is the only witness to describe the circumstances of his injury and cannot even identify ownership or control of the trailer which was being loaded by him at the time the injury occurred.
84 In those circumstances I cannot be satisfied that leave should be granted to the plaintiff to commence a proceeding against either defendant.
85 I will hear the parties in relation to the formal orders sought and on the question of costs.
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