Drew v Patricks Stevedores Holdings Pty Limited (No 2)
[2017] VSC 352
•19 June 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2016 00127
| KEVIN DREW | Plaintiff |
| v | |
| PATRICKS STEVEDORES HOLDINGS PTY LIMITED | Defendant |
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JUDGE: | IERODIACONOU AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 May 2017 |
DATE OF RULING: | 19 June 2017 |
CASE MAY BE CITED AS: | Drew v Patricks Stevedores Holdings Pty Limited (No 2) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 352 |
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NEGLIGENCE – Personal injury – Negligence of employer – Injuries allegedly sustained in the course of employment – Whether claims in respect of injuries to be treated as one claim or multiple claims – Bell Radiology (A Firm) v McGraw (Unreported, Victorian Court of Appeal, 7 February 1996) – Karatzidis v Victorian Railways Commissioners [1971] VR 360, followed.
LIMITATION OF ACTIONS – Whether time begins to run from first injury or cessation of employment – Cause of action complete upon first compensable injury being suffered – Plaintiff out of time – Whether extension of time should be granted – Limitation of Actions Act 1958 (Vic) s 23A – Relevant factors – Extension of time appropriate in this case.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram with Ms K Gladman | Melbourne Injury Lawyers Pty Ltd |
| For the Defendant | Mr T J Casey QC with Mr R H Stanley | Wisewould Mahony |
HER HONOUR:
Mr Drew worked at the Port Melbourne docks as an employee of Patricks Stevedores Holdings Pty Limited from about 2000 until he was retrenched in May 2014. He alleges that he was injured during the course of his employment. In this proceeding, Mr Drew seeks damages from Patricks Stevedores in respect of his injuries. Patricks Stevedores says that some of Mr Drew’s claim is out of time because it relates to an injury in November 2002. In response, Mr Drew says that he is not out of time and, if he is, then time should be extended to allow him to bring his entire claim.
This ruling concerns the timing issues. They give rise to two questions:
(1)Does time begin to run from Mr Drew’s injury in November 2002 or from the cessation of his employment in 2014?
I consider that time commenced in November 2002.
(2)Should time be extended pursuant to s 23A of the Limitations of Actions Act 1958 (Vic) (‘LAA’) to enable Mr Drew to bring his entire claim in this proceeding?
Yes.
The reasons for these answers are discussed below.
First, it is necessary to consider the background to the claim.
Mr Drew’s employment and allegations of injury
Mr Drew initially worked as a stevedore at Webb Dock for approximately one and a half years. He was then transferred to work on the straddle cranes which operated on East Swanson Dock. In October 2002, Mr Drew complained of lower back pain and neck pain as a result of this work. In November 2002, he injured his back and neck while driving one of the straddle cranes, when its brakes allegedly failed. He was unable to work for a period, during which time he received workers’ compensation.[1]
[1]Exhibits KTD-1, KTD-2, KTD-3, KTD-4 to the Affidavit of Kevin Thomas Drew sworn on 10 May 2017 (‘Drew Affidavit’).
In May 2003[2], Mr Drew returned to work and had some further difficulties. At about this time, he was transferred to Webb Dock to work as a stevedore, but was not operating straddle cranes. Mr Drew ceased work in February 2004 and submitted a second workers’ compensation claim in March 2004 for depression resulting from the earlier physical injuries.[3] This claim was later withdrawn as it was subsumed into his previous claim.[4] He returned to work in November 2004.[5]
[2]Drew Affidavit, Exhibit KTD-8.
[3]Drew Affidavit, [14]–[16], Exhibits KTD-7, KTD-8.
[4]Drew Affidavit, [17]-[18], Exhibits KTD-9, KTD-10.
[5]Drew Affidavit, [13].
Mr Drew continued work and made a third workers’ compensation claim in 2009 in respect of depression and anxiety.[6] A fourth claim was made in early 2010 after Mr Drew was struck in the face by a crane hook.[7]
[6]Drew Affidavit, Exhibit KTD-20. There is no evidence as to whether or not this was accepted.
[7]Exhibit KAW-1 to the Affidavit of Katherine Ann Wilson, Mr Drew’s solicitor, sworn 10 May 2017 (’Wilson Affidavit’) indicates medical payments made by Victorian WorkCover Authority for the period 25 February – 17 May 2010. It therefore appears that this claim was accepted.
Mr Drew then made a fifth workers’ compensation claim in 2012 in respect of neck and shoulder pain caused by a collision between a forklift being driven by him and a prime mover which had entered the dock area.[8] This claim was accepted.[9]
[8]Drew Affidavit, Exhibit KTD-21.
[9]Exhibits KAW-3, KAW-4.
Mr Drew says that he was then ‘on and off light work duties until about November 2013’.[10]
[10]Drew Affidavit, [32].
In October 2012, Mr Drew sought and obtained legal advice concerning his ‘possible entitlements’.[11] A sixth workers’ compensation claim was made in December 2013, covering the whole of Mr Drew’s employment. [12]
[11]Drew Affidavit, [34].
[12]Wilson Affidavit, [17].
Proceedings were issued in the Magistrates’ Court of Victoria in March 2014 for various disputes concerning the payment of entitlements under the fifth workers’ compensation claim, and liability for the sixth claim. This proceeding was resolved in December 2014.
Mr Drew was retrenched several months later, in May 2014.
In January 2015, Mr Drew underwent spinal surgery.
In May 2015, Mr Drew made an application for serious injury which was accepted by the WorkCover authority. It issued a serious injury certificate in September 2015.[13]
[13]Drew affidavit, Exhibit KTD-22.
In January 2016, Mr Drew commenced these proceedings. The proceedings bring claims against Patricks Stevedores for damages arising from negligence, breach of statutory duty, and breach of the employment contract. Mr Drew asserts that he has suffered a serious injury and is entitled to commence the proceeding pursuant to s 134AB of the Accident Compensation Act 1985 (Vic) (‘the AC Act’).
It is necessary for Mr Drew to obtain a serious injury certificate under s 134AB in order to bring a proceeding for common law damages. As noted earlier, Mr Drew was issued with a certificate by the Victorian WorkCover Authority,[14] which was satisfied that the injury alleged in paragraph 3 of the proposed statement of claim (in the same terms as the current statement of claim) is a serious injury as defined by s 134AB(37).
[14]Drew affidavit, Exhibit KTD-22.
The Victorian WorkCover Authority provided its consent for Mr Drew to recover damages for pain and suffering and for pecuniary loss as a result of the injury alleged in paragraph 3 of the statement of claim. That paragraph pleads that:
The Plaintiff [Mr Drew] sustained injury in the course of his employment with the Defendant between 2000-2012 when he was required to repeatedly operate heavy machinery including straddle cranes which were fitted with poor braking systems which caused jerking, which were required to be driven across uneven surfaces also causing jerking, and which required the Plaintiff repeatedly to turn his head during movement of the machinery and in particular:
(a)on 15 November 2002 the brakes on a straddle crane failed causing collision with a concrete barrier;
(b)thereafter upon return to work in 2004, the Plaintiff was subjected to undue pressure working variable shifts and undertaking employment duties which were beyond his physical capacity;
(c)in August 2012 when a forklift being operated by the Plaintiff collided with a prime mover the presence and location of which had not been brought to his attention –
As a result of which the Plaintiff suffered injuries particularly affecting his cervical spine (which injuries are hereinafter referred to as (“the injuries”).[15]
[15]Statement of Claim, [3] (filed 18 January 2016).
Mr Drew’s particulars of injury include injuries to his lumbar spine, cervical spine, left shoulder, reduced disc height, aggravation of osteoarthritic changes, headaches and psychological injury including anxiety and depression.[16]
[16]Statement of Claim, [10].
When does time commence?
Mr Drew submits that it is appropriate that the entirety of his injuries over the course of his employment be dealt with as a single action in negligence. In this respect, he relies on Bell Radiology (A Firm) v McGraw[17] and Karatzidis v Victorian Railways Commissioners.[18]
[17](Unreported, Victorian Court of Appeal, Tadgell, Ormiston and Callaway JJA, 7 February 1996) (‘Bell Radiology’).
[18][1971] VR 360 (Winneke CJ, Pape and Adam JJ) (‘Karatzidis’).
Bell Radiology also concerned a back injury. The plaintiff pleaded that on frequent occasions between March and September 1988 she was required to perform duties in the course of her employment which caused her injury. She also pleaded particular incidents of injury in April and September 1988. The trial judge directed the jury to consider whether there was negligence on the part of the defendant which caused injury, rather than directing the jury to consider three separate causes of action. The Court of Appeal dismissed an appeal from the direction, finding that there was no requirement of a separate verdict for each incident. Tadgell JA held:[19]
In the present case it is perhaps possible to read the statement of claim technically as raising several causes of action … To regard the statement of claim as raising multiple or alternative courses of action is in my opinion, however, to misapprehend the nature of the proceeding. Although each of para 3, para 4 and para 5 refers to physical injury to the respondent, I should not regard any of them as alleging a cause of action complete in itself. An essential allegation – perhaps the cardinal allegation – made by the respondent is stated in para 9 of the statement of claim, namely that “by reason of the matters aforesaid the plaintiff suffered injury, loss and damage”. There follow particulars of personal injury, loss of earning capacity and special damage. These items of injury, loss and damage were intended, as it seems to me, to be alleged as ingredients of a single cause of action upon which the respondent relied and without proof of at least some of which ingredients the claim in tort would not be complete. In Karatzidis v Victorian Railways Commissioners [1971] VR 360 (an industrial accident case in which, co-incidentally, the plaintiff claimed damages for injury caused to his back in the course of employment in two separate incidents, one in 1966 and one in 1967) the Full Court observed, at 365–366, that – “the particulars of demand in this case alleged alternative causes of action. They were, however, all allegations of negligence, with the particulars of negligence being stated as if they were new and different causes of action. This method of pleading is, as this Court has said on previous occasions in recent years, apt to be confusing and misleading in the conduct of the trial, and we think it should be dropped. In reality, in cases of this kind there is only one cause of action, namely, a cause of action for negligence, it being alleged that there has been a failure to take reasonable care for the safety of the employee. In our opinion, in the interests of conducting with propriety this class of litigation, cases of this kind should be pleaded simply and straightforwardly as cases of negligence.”
…
The respondent [in Bell Radiology] was alleging essentially a failure by the appellant to take reasonable care for her safety as an employee as a result of which she was left with an injured back, for which she claimed pecuniary compensation. It is true there was evidence that was specific as to the two incidents in April and September 1988 but the evidence was not confined to them.… To have required the respondent’s case to be determined by reference to the April and September incidents, in isolation from all the surrounding circumstances, might well have induced the jury to take a distorted or unbalanced view of the evidence.
[19]Bell Radiology (unreported), 11–13.
Applying Bell Radiology and Karatzidis, Mr Drew’s claim in tort over the course of his employment can be considered a single cause of action. However, this invites the question of when time began to run.
Patricks Stevedores submits that reliance should be placed on the general principle of tort law that a cause of action accrues when compensable injury is suffered. It relies upon Alcan Gove Pty Ltd v Zabic.[20] In that case, the High Court held that ‘actual damage or injury is an essential element of a cause of action in negligence for personal injury.’[21] Patricks Stevedores says that the 2002 injury would have been known almost immediately. The cause of action accrues on the date of injury. The fact that the injured person does not know or believe that the relevant employer’s act or omission was negligent does not prevent time from running.[22] It says this is a case where the fact of the injury was known immediately. Indeed, the workers’ compensation claim made by Mr Drew evidences that.
[20](2015) 257 CLR 1.
[21](2015) 257 CLR 1, 7 [8].
[22]Mazzeo v Caleandro Guastalegname & Co (2000) 3 VR 172; [2000] VSCA 230, [43].
The back injuries are alleged to have occurred from 2002. Mr Drew says that his cause of action was not complete until the cessation of his employment in 2014. Counsel for Mr Drew submitted that it was not possible to make a claim until the cessation of employment because until that time:[23]
it wasn't possible for the plaintiff to assess the loss and damage which would be an integral part of his claim. The reason for that was that he wasn't made redundant until 1 May 2014 and it wasn't until that point that he was unable to work. So the calculation of his economic loss damages, which are a component of this cause of action, couldn't have been undertaken, and likewise, the calculation of his general damages couldn't have been undertaken because his condition remained unstable until he underwent cervical fusion surgery on … 21 January 2015 and a period of recovery.
[23]Transcript of Proceedings, Kevin Drew v Patricks Stevedores (Supreme Court of Victoria, S CI 2016 00127, Ierodiaconou AsJ, 23 May 2017, 16 (‘Transcript’).
In the circumstances, Mr Drew says that it would be artificial to separate particular incidents and consider them as separate causes of action.
In my view, Mr Drew had a complete cause of action at the time of his injury in November 2002. He had suffered a compensable injury. Time began to run pursuant to s 5(1)(a) of the LAA from that point. It matters not that his cause of action in negligence enlarged to include further incidents and injuries over the course of his employment. Those further incidents and injuries did not have the effect of stopping time from running after it commenced in November 2002.
If the Court were to accept Mr Drew’s submission that time did not commence to run on his cause of action until the cessation of his employment, the consequence would be that a person suffering multiple injuries over the course of their employment due to the negligence of their employer does not have a complete cause of action until their employment ceases. That simply cannot be so. It would be completely contrary to the well-established principle that a person will have a cause of action in negligence when compensable injury is suffered.
Should time be extended?
If time began to run in November 2002, it is common ground that Mr Drew is approximately eight and half years out of time to bring this claim.
Mr Drew’s application for extension of time is made pursuant to s 23A of the LAA, which provides (relevantly) as follows:
(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.
(2)Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines.
(3)In exercising the powers conferred on it by subsection (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following—
(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.
The relevant principles are generally agreed between the parties. The Court must have regard to all the circumstances of the case. The factors in s 23A(3) are inclusive. The Court ‘must synthesise the competing considerations’ and arrive at a conclusion that takes them all into account.[24] The Court has a ‘wide discretion’ to extend time if it considers it just and reasonable to do so.[25]
[24]Tsiadis v Pattersons (2001) 4 VR 114, 123 [33].
[25]Bell v SPC Ltd [1989] VR 170, 174.
The onus is on Mr Drew to establish that it is just and reasonable to make the order for extension:[26]
The onus is upon the party claiming an extension of time to show that a fair trial may be had now, notwithstanding that passage of time. That onus is not discharged by saying that the putative defendant should have been more astute to conserve its own interests by anticipating litigation that did not eventuate until many years after the expiration of the limitation period.
[26]Prince Alfred College Incorporated v ADC (2016) 258 CLR 134, 167 [105].
Length of and reasons for Mr Drew’s delay
Mr Drew deposed that in September 2012 he decided to seek legal advice because he was experiencing difficulties in continuing to work and in the management of his workers’ compensation claim. He met with a solicitor, Katherine Wilson, in October 2012.[27] He does not depose as to whether he received advice at that time, or any time previously, concerning limitation of action issues. He conferred with Mr Ingram of counsel on 21 June 2014.[28] Neither Ms Wilson nor Mr Ingram, who both continue to act for Mr Drew, have deposed as to whether they provided Mr Drew with limitations advice at that time.
[27]Drew Affidavit, [33], [34].
[28]Drew Affidavit, [39].
Mr Drew’s counsel suggested that an inference should be drawn that, prior to his meeting with Ms Wilson, Mr Drew was unaware of his right to bring a common law claim (or, indeed, the limitations period). Mr Ingram referred to parts of Mr Drew’s affidavit in which he deposed that it had not occurred to him to advise his lawyers that he had suffered significant loss from 2002 onwards as a result of his inability to keep his work as a straddle crane driver. The affidavit states that this was because, over the years, Mr Drew had been ‘focused on continuing employment rather than the rate of pay received for that employment’.[29] Counsel also urged a further inference that Mr Drew’s focus was on returning to work, rather than common law proceedings. Counsel submitted that it was simply an oversight not to include a sentence in Mr Drew’s affidavit that he was unaware of his common law rights.
[29]Drew Affidavit, [44].
On the other hand, Patricks Stevedores submitted that an adverse inference should be drawn from Mr Drew’s failure to depose to whether or not he was aware of his common law rights. Counsel for Patricks Stevedores also submitted that Mr Drew’s focus on returning to work was consistent with a choice not to pursue legal remedies.
There is no evidence of what steps Mr Drew took to obtain legal or other expert advice, for instance from a trade union, about his common law rights. On the other hand, the evidence indicates that he received medical advice as to his injuries over the course of his employment and following its cessation.
I draw an adverse inference from Mr Drew’s failure to depose as to his reasons for the delay in bringing his claim. The inference may be drawn that he was aware of his rights and chose not to pursue them while his employment was ongoing. That is, an inference may be drawn that he did not act promptly and reasonably once he knew that the act or omission of Patricks Stevedores, to which his injury was attributable, might be capable at that time of giving rise to an action for damages.
Mr Drew’s failure to explain the reasons for delay and his failure to act promptly weigh against granting the application. So, too, does the inordinate length of delay- eight and a half years from the expiry of the limitation period, and a further six from the date of the injury in 2002.
Prejudice to Patricks Stevedores
Patricks Stevedores says that it will be generally prejudiced because of the effluxion of time. It also asserts specific prejudice in respect of a claimed lack of documentary evidence and available witnesses.
In respect of contemporaneous documents, a number of witnesses for Patricks Stevedores depose that there were documents that would have been in existence in 2002 which are no longer in existence. In particular, Patricks Stevedores says that there is an absence of any material to properly defend allegations made against it in relation to duties at East Swanson Dock between 2000 and 2004, especially in relation to the November 2002 incident.[30] Further, the older straddle cranes have been decommissioned and cut up by an onsite maintenance crew and so are not available for inspection.[31] There are no pothole log books from that time in existence which would have recorded where potholes were and provided a report of the condition of the dock road.[32] The road has undergone a number of resurfacings since the relevant time.[33] The Webb Dock Terminal has undergone significant restructuring and closed in 2014.[34]
[30]Affidavit of Rebecca Alanna Littlejohn, Patricks’ solicitor, affirmed 16 May 2017 (‘Littlejohn Affidavit’); Affidavit of Dwayne Portelli, National Workers Compensation Manager, sworn 16 May 2017 (‘Portelli Affidavit’); Affidavit of Samantha English, Human Resources Manager, sworn 17 May 2017 and Affidavit of Damian Ryan sworn 16 May 2017 (‘Ryan Affidavit’).
[31]Littlejohn Affidavit, [15]; Ryan Affidavit, [14].
[32]Ryan Affidavit, [9].
[33]Littlejohn Affidavit, [15]; Ryan Affidavit, [15].
[34]Littlejohn Affidavit, [20].
There is only one remaining employee who worked at East Swanson Dock at the same time as Mr Drew.[35] That person, Damian Ryan, the General Manager of Patricks Stevedores, did make a statement in respect of Mr Drew on 24 March 2004.[36] However, he has no recollection of Mr Drew.[37]
[35]Portelli Affidavit, [12].
[36]Drew Affidavit, Exhibit KTD-8.
[37]Ryan Affidavit, [7].
In the circumstances, Patricks Stevedores says that it is not in a position to be able to fully cross-examine Mr Drew.
On the other hand, Mr Drew says that there are many contemporaneous documents. He made an incident report in respect of back injuries on 19 October 2002. He made an incident report and lodged a WorkCover claim form in respect of the November 2002 injury. He subsequently made further workers’ compensation claims and there are WorkCover claim forms for each, as well as incident reports in respect of some.[38]
[38]Drew Affidavit, Exhibits KTD-1, KTD-2, KTD-3, KTD-4, KTD-7, KTD-8, KTD-20, KTD-21.
Mr Drew is surprised that Patricks Stevedores cannot locate any lay witnesses as he contacted two of his colleagues who are still employed by Patricks Stevedores, and another who is not. They are said to recall the incident in November 2002 and the general problems experienced by Mr Drew and other straddle crane drivers. Mr Drew says that there is no evidence that Patricks Stevedores has made any effort to contact witnesses who are former employees. There is a slight discrepancy in the evidence on this point. The Littlejohn affidavit deposes that enquiries have been limited to managerial staff.[39] The Portelli affidavit states that enquiries have been limited to witnesses who are listed on the relevant claim forms and incident reports.[40]
[39]Littlejohn affidavit, [19].
[40]Portelli affidavit, [12].
Counsel for Patricks Stevedores said in argument that those who have left employment with Patricks Stevedores are difficult to find and that, in any event, such witnesses would have difficulty recalling working conditions after such an extended delay.[41]
[41]Transcript, 110.
Mr Drew refers to various other proceedings in which Patricks Stevedores was a defendant. He says that these indicate that Patricks Stevedores was on notice as to the safety issues. In particular, he refers to a report by a Mr Barry Dunn of February 2003 that demonstrates a considerable volume of contemporaneous material relevant to known risks in his workplace at that time, which report remains in existence.
I consider that the lack of contemporaneous documents will prejudice Patricks Stevedores. The medical documents, incident reports and claim forms evidence injury and, to a limited extent, what gave rise to the injury. Unsurprisingly, however, these are limited in their relevance as to whether there was negligence on the part of the employer.[42] That is, they indicate what injuries were sustained and their immediate cause, but are not so clearly directed at whether those causes in turn resulted from negligence on the part of Patricks Stevedores.
[42]Drew Affidavit, Exhibits KTD-1 – KTD-22; Wilson Affidavit, Exhibits KAW-1 – KAW-2.
I do not accept Patricks Stevedores’ submission that there are no potential witnesses other than Mr Drew. I am not satisfied that it has made reasonable enquiries in respect of its current non-managerial employees or its former employees. I accept Mr Drew’s evidence that there are witnesses available.
For completeness, I note Mr Drew’s reliance upon a number of other decisions in which Patricks Stevedores was the defendant, in support of his submission that Patricks Stevedores was not prejudiced and should have been on notice as to the safety issues. Section 91 of the Evidence Act 2008 (Vic) is applicable here: it is not appropriate for this Court to have regard to those decisions. Mr Drew’s counsel attempted to draw a distinction to avoid s 91 in the following manner, by arguing that he was:[43]
not proving the fact as a fact in the case itself, what we are proving is the fact going to the issue of knowledge on the part of the defendant, of which we use that as part of an accumulation of matters, not a fact that is independently going to prove liability, it goes to an issue of knowledge on the part of the defendant.
[43]Transcript, 126.
I reject that argument.
Other circumstances
Mr Drew submitted that a relevant circumstance was that Patricks Stevedores has sworn three affidavits of documents and has recently found some maintenance documents in relation to the straddle crane driven by Mr Drew, dated November and December 2002.[44] Counsel for Mr Drew says that the affidavits on behalf of Patricks Stevedores do not contain sufficient information about what searches were undertaken, where they were undertaken and by whom.[45] The Court was urged to draw an adverse conclusion from this. I do not do so. Discovery is a continuing obligation and it seems to the Court that further material has been discovered when it came to light, quite properly and in accordance with the parties’ obligations. I do not draw the conclusion that Patricks Stevedores has not made a reasonable search of its materials. The affidavits of Ms Littlejohn, Mr Portelli and Ms English depose to the searches made of current and archive material.
[44]Further Supplementary Affidavit of Documents sworn by Dwayne Portelli on 16 May 2017.
[45]Transcript, 49–51.
The second matter concerns Mr Drew’s serious injury certificate. That certificate is in respect of injury sustained in the course of Mr Drew’s employment between 2000 and 2012.[46] The consequence of dismissing this application would be to confine the claim to injuries caused by the 2012 incident, which are still within time if considered alone. This has two consequences. First, it would be inconsistent with the current serious injury certificate. Second, and more importantly, it would give rise to an artificial approach to causation, and also potentially to damages, as Mr Drew’s claim relies upon injuries sustained ‘in the course of his employment’. Consistently with Bell Radiology, Mr Drew's injury in the course of his employment must be viewed as one cause of action. He injured his back in 2002. There was further injury to his back over the course of his employment. Ultimately, he had spinal surgery in 2015. The consequence of disallowing this application would be to artificially separate those events and his cause of action.
[46]Drew affidavit, Exhibit KTD-22.
Synthesising competing considerations
On the one hand, the considerations of delay discussed above weigh against granting Mr Drew an extension of time. Mr Drew failed to adequately explain that delay. The evidence is that he returned to work after his injuries in 2002 and, indeed, continued to work for Patricks Stevedores despite further injuries. He received workers’ compensation for some of these injuries and made six compensation claims in total. He waited until after his employment ceased to bring this proceeding.
Patricks Stevedores will be generally prejudiced by the effluxion of time. For instance, there is evidence (discussed above) that its witness, Mr Ryan, has no recollection of a statement that he gave. Given the passage of time, this is unsurprising.
On the other hand, I am not satisfied that the prejudice is such that a fair trial cannot be had. As discussed above, there is some limited contemporaneous documentary evidence in respect of the pleaded allegations. Importantly, I accept Mr Drew’s submission that there are witnesses available. Mr Drew has contacted a number of witnesses who may be able to give evidence at trial. It appears that the defendant has so far failed to make reasonable inquiries in relation to these witnesses.
In all the circumstances, it is just and reasonable to extend time. This avoids the undesirable consequences of artificially separating Mr Drew’s injuries into distinct causes of action. It is consistent with Bell Radiology to treat Mr Drew’s injuries as a single cause of action. It is desirable and more just to have it tried as such if that can be done fairly. Given the existence of some contemporaneous documents, along with the potential witnesses identified by Mr Drew, I am satisfied that a fair trial of that cause of action can be had.
Conclusion
The Court will make orders allowing the application to extend time. I will hear the parties on costs and the appropriate form of orders.
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