Dykes v Bunnings Group Limited (No 2)
[2016] ACTSC 226
•18 August 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Dykes v Bunnings Group Limited (No 2) |
Citation: | [2016] ACTSC 226 |
Hearing Date: | 29 July 2015 |
DecisionDate: | 18 August 2016 |
Before: | Refshauge J |
Decision: | 1. The appeal be dismissed. 2. Bunnings Group Ltd pay the costs of Neil Dykes of the appeal. |
Catchwords: | APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Extension of time to commence proceedings – finding extension of time ‘just and reasonable’ not a matter of discretion – discretion to extend time APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – NEGLIGENCE – Extension of time to commence proceedings failure to seek legal advice – workers compensation claim made– delayed deterioration of condition – unaware of rights to common law claim – no deliberate choice not to pursue APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Extension of time to commence proceedings – prejudice to defendant – actual prejudice subsumes presumptive prejudice – passage of time – relevant material unavailable – alleged unavailability of witnesses – no evidence of further attempts to contact witnesses – attempts to obtain documentary evidence not comprehensive – causation – medical notes available |
Legislation Cited: | Limitation Act 1985 (ACT), ss 16A, 36, 36(2), 36(3), Limitation of Actions Act 1974 (Qld), s 31(2) |
Cases Cited: | Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Australian Capital Territory v Ives (Unreported, Full Court of the Federal Court of Australia, Gallop, Wilcox and Finn JJ, 647 of 1996, 26 July 1996) |
Parties: | Neil Dykes (Plaintiff) Bunnings Group Limited (Defendant) |
Representation: | Counsel Mr R Crowe SC with him Mr S Hausfeld (Plaintiff) Mr E Romaniuk SC with him Mr A Muller (Defendant) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) Moray & Agnew (Defendant) | |
File Number: | SC 287 of 2014 |
Decision under appeal: | Court: ACT Supreme Court Before: Master Mossop Date of Decision: 5 December 2014 Case Title: Dykes v Bunnings Group Ltd Court File Number: SC 287 of 2014 |
REFSHAUGE J:
On 10 March 2003, the respondent plaintiff, Neil Dykes, was injured when cleaning sawdust from a sliding table saw in the timber yard of the appellant defendant, Bunnings Group Ltd, which was Mr Dykes’ employer. I shall call the appellant Bunnings.
Mr Dykes consulted lawyers about his injuries for the first time on 7 March 2014 and, after communications by them with the insurers of Bunnings and then their lawyers, Mr Dykes commenced proceedings by filing an Originating Claim with Statement of Claim attached.
Application was also made by Application in Proceedings, dated 9 September 2014, for an extension of time within which to bring the proceedings.
On 5 December 2014, Mossop M (as his Honour then was) gave oral reasons for his decision and ordered:
1)The period within which this action may be brought by the plaintiff against the defendant is extended to 25 June 2014;
2)The plaintiff pay the defendant’s costs of this application, but pursuant to rule 1701(2) of the Court Procedures Rules 2006 (ACT) those costs are not to be assessed until the proceedings end; and
3)Practice Direction 2 of 2014 is to apply to these proceedings from today. The proceedings are listed for a First Directions Hearing before the Master on 19 December 2014. The Plaintiff must serve the documents required to be served under paragraph 13 of the Practice Direction by 12 December 2014.
Bunnings has now appealed against that decision by Appeal from the Master dated 11 December 2014.
It is a matter of regret that it has taken some time for this decision to be delivered. That is, in part, a function of the pressure of work on the Court but also my absence for some months on sick leave, during which I did manage to complete some decisions but not many and not this one.
In the circumstances, however, that may be of less concern, at least to Bunnings, since one complaint it made was that, the complex issues of fact and law and the significant amount of evidence – the appeal papers were over 1000 pages – suggested that the Master’s decision was not suited to the ex tempore decision that his Honour gave ten days after the argument.
Such a criticism cannot be made of this decision.
Jurisdiction
Until 21 April 2015, interlocutory appeals from the Master, now known as the Associate Judge (s 45 of the Supreme Court Act 1933 (ACT)), were made to a single judge of this Court: s 9 of the Supreme Court Act (as it was prior to 21 April 2015). After that date, such an appeal lies, but by leave, directly to the Court of Appeal.
The appeal from the Master was not heard prior to 21 April 2015 and a question arose as to whether thereafter the appeal should be heard by a single judge or by the Court of Appeal. I held that it should be heard by a single judge: Dykes v Bunnings Group Limited [2015] ACTSC 141.
As to the approach to such appeals, I addressed that matter in Jin v Ai [2011] ACTSC 70 at [9], where I said:
I addressed the issue of appeals from the Master in Theodorelos v Nexus Projects Pty Ltd[2009] ACTSC 149 (at [65]) to [87]). I formed the view that Hogan AJ was correct in Re Milosevic(1996) 134 FLR 429 when his Honour held that the approach to such appeals that had been adopted by Cross J in Do Carmo v Ford Excavations Pty Ltd [1981] 1 NSWLR 409 was applicable to such appeals. These principles were that:
(a) the appeal is one on fact as well as on law;
(b) the court on appeal may apply the law as it exists at the date of the appeal;
(c) where additional evidence is adduced, the appellate court may decide the appeal in the light of that evidence along with the evidence before the Master;
(d) if no additional evidence is adduced to warrant a departure from the Master’s findings of fact, those findings are binding on the appeal court, unless they, or the inferences from them are so flawed as to attract intervention in accordance with the principles as enunciated in Warren v Coombes[1979] HCA 9; (1979) 142 CLR 531;
(e) where the Master’s decision arises from the exercise of a discretion, the principles enunciated in House v The King[1936] HCA 40; (1936) 55 CLR 499 apply.
The appeal
On 11 December 2014, Bunnings filed a Notice of Appeal seeking that the orders of Master Mossop be set aside and that the application to extend time within which Mr Dykes could commence his proceedings be dismissed with costs.
The grounds for the appeal were as follows:
(a)His Honour erred in finding there was a reasonable explanation for the respondent’s delay in bringing the action in circumstances where the respondent conceded a prior awareness of his rights.
(b)His Honour erred in drawing no negative inference from the respondent’s failure to lead any evidence from Mr Dromgold or Mr Badham.
(c)His Honour erred in finding that the content of missing medical records was unlikely to bear on the contested issue of causation.
(d)His Honour erred in finding that a fair trial would be possible notwithstanding the appellant being unable to locate:
(i)documentation detailing the general safety system in place;
(ii)documentation as to general training procedures;
(iii)documentation concerning the use and operation of the particular saw; and
(iv)the respondent’s own training records.
(e)His Honour erred in finding that the appellant would be permitted a fair trial notwithstanding all the identified witnesses’ memories having eroded due to the lapse of time.
(f)His Honour erred in giving insufficient weight to the prejudice arising from the substantial delay in bringing the proceedings.
(g)His Honour erred in finding it was just and reasonable to grant the extension of time sought by the respondent.
At the hearing, the real issues were argued as the question of the adequacy of the explanation for delay, which encompassed grounds (a) and (b), and the extent of prejudice suffered by Bunnings, encompassed by the other grounds.
The facts
In the proceedings before the learned Master, affidavits were filed by both parties and other documents were admitted into evidence for the purposes of the proceedings. No additional evidence was sought to be admitted in the hearing of the appeal.
The evidence for Mr Dykes consisted of:
· an affidavit of Mr Dykes made on 2 September 2014;
· an affidavit of the lawyer for Mr Dykes, John Little, made 8 September 2014;
· a report of Dr Anthony Cairns, Consultant Orthopaedic Surgeon, dated 9 September 2014;
· a report of Dr Michael Gross, Orthopaedic Surgeon, dated 1 October 2014.
The evidence for Bunnings consisted of:
· an affidavit of Julie Zoeller, employed as worker’s compensation administrator of Bunnings, made on 31 October 2014;
· an affidavit of Brendan Jones, solicitor of Bunnings’ lawyers, made 20 November 2014;
· a list of workers compensation payments made to Mr Dykes in relation to his workers compensation claim arising out of the injury to his knee;
· a letter dated 21 November 2014 from John Giri, investigations manager of a firm of investigators retained by the lawyers for Bunnings.
As no further evidence was adduced on the appeal and as no challenge was made to the outline of the facts made by the learned Master, it is appropriate that I set out his Honour’s findings about the facts of the matter. They are as follows:
He alleges that he was employed by Bunnings as a shop assistant/carpenter. He was working in the timberyard of the Bunnings store in Tuggeranong. On 10 March 2003 he alleges that he was required to clean a sliding table saw that had not been cleaned by the weekend staff. He alleges that the table saw had to be manually cleaned because the sawdust extractor was not fixed to it. The saw was mounted on a bench and had four metal legs.
At approximately 9 am the plaintiff alleges that he commenced cleaning the table saw. He crawled under the table on his stomach and tried to roll over on his back so that he could clean out the sawdust from underneath the table saw. He alleges that his left foot was caught between an electrical wire that ran down the side of the saw bench for the ‘dead man’s switch’ and the leg of the table. Although his body turned his left [leg] could not because it was caught.
As a consequence of this the plaintiff suffered an injury to his knee. The plaintiff alleges that the defendant was negligent in a variety of manners, essentially because it required him to crawl under the table and clean the saw when that was not a safe system of work ...
Following the incident on 10 March 2003 the plaintiff lodged a workers compensation claim which was accepted. In that form, the plaintiff described what had happened to him. He required medical treatment and rehabilitation.
The treatment included surgery on his left knee on 2 April 2003, a few weeks after the injury. He first returned to work on 19 March 2003. By October 2003, he had returned to full-time duties, but in a different area doing light duties. A report of a rehabilitation provider at that time indicated that the plaintiff had no current pain symptoms but continued to have decreased flexion of his knee. In December 2005 he resigned from Bunnings to take up a position as a carpenter working on a subcontract basis for a building company.
Although he continued to suffer some symptoms in his knee, he only occasionally needed medical treatment and though there was nothing else that could be done about it. He found that he had worsening symptoms over the last few years. In about Christmas 2013 he was prompted to seek legal advice by a relative who noticed that he was limping badly. In January 2014 he phoned Mr Little’s office, and in early March 2014 met with him. At that stage, he learned about the possibility of a common law claim against Bunnings and the existence of the three-year limitation period.
His unchallenged evidence was that prior to meeting Mr Little he had not consulted another lawyer in relation to the accident. He was unaware that he could make a claim against Bunnings and unaware that any limitation period applied. Following the meeting with Mr Dykes, his solicitor took steps to inform the workers compensation insurer, obtained medical information and obtained documents relevant to the commencement of the proceedings. The proceedings were commenced on 25 June 2014.
Extension of time to commence or prosecute proceedings
Under s 16A of the Limitation Act 1985 (ACT), the period beyond which a claim for personal injuries alleged to have been suffered by Mr Dykes are barred from being maintained is three years. Section 36 of that Act, however, permits a court, on application by a person such as Mr Dykes, to postpone the bar if it is just and reasonable to do so.
Subsection 36(2) of the Limitation Act is as follows:
If 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 considers appropriate, 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 the period that it determines.
In determining whether to postpone the bar, the court is required, by s 36(3), to:
have regard to all the circumstances of the case, including, for example, 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 conduct of the defendant after the cause of action accrued to the plaintiff, including the extent (if any) to which the defendant took steps to make available to the plaintiff means of ascertaining facts that were or might be relevant to the cause of action of the plaintiff against the defendant;
(d) the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he or she knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice the plaintiff may have received.
The approach to the consideration of such applications has been set out in a number of decisions. The learned Master referred to the useful summary of the relevant principles he had earlier set out in Stefak v Garnama Pty Ltd [2014] ACTSC 140 at [19]-[30]. They are as follows:
Section 36 of the Limitation Act 1985
19.Section 36 permits an extension of the period within which an action on the cause of action may be brought if a Court decides that it is just and reasonable to do so. The section applies to an action for damages but the exclusions in s 36(5)-(6) mean that its scope is limited to common law claims which relate to personal injury that is compensable injury under the Workers Compensation Act 1951 (ACT) and where a claim could be or could have been made had a notice of the injury been given as required by that Act: see s 16A of the Limitation Act 1985.
20. The power to extend time may be exercised notwithstanding that the limitation period has expired and may be exercised after the relevant proceedings have been commenced: s 36(4).
21. In deciding whether or not it is just and reasonable the Court is obliged under s 36(3) to have regard to ‘all the circumstances of the case’ including six specific matters, which are listed in paragraphs (a)-(f). I will refer to the terms of those paragraphs below.
22. The primary question is whether, in all the circumstances, it is “just and reasonable” to grant the application: s 36(2); Sessions v Phengsiaroun[2008] ACTSC 132 at [40].
23. A material, and often the most important, question is whether, by reason of the time which has elapsed, a fair trial is possible: Brisbane South Regional Health Authority v Taylor[1996] HCA 25; (1996) 186 CLR 541 at 547-548, 550, 555. Sessions at [41]; Laws v Web Scaffolding[2010] ACTCA 3 at [37].
24. The overall onus is on the plaintiff to demonstrate that it is just and reasonable to extend time. That onus remains with the plaintiff throughout. If a defendant, however, wishes to rely on actual prejudice then the defendant bears the onus of adducing or pointing to evidence sufficient to establish that fact: Brisbane South at 547, 551, 553-554, 566-567; Laws v Web Scaffolding at [34]-[36].
25. The criteria specifically referred to in s 36 are not exhaustive. However, they do point reasonably comprehensively to areas of relevance: Sessions at [42].
26. One matter not mentioned in s 36 is the relevance of a possible cause of action vested in the plaintiff for damages for any neglect or default on the part of the plaintiff’s solicitors in prosecuting the plaintiff’s claim. In general, notwithstanding the availability of a claim against the plaintiff’s solicitors, the primary wrongdoer should be looked to for compensation although there may be occasions when a proper balance between the blame to be attributed to the plaintiff’s solicitor and prejudice to a defendant would mean that an applicant under s 36 should be required to pursue his or her solicitors: Daroczy v B & J Engineering Pty Ltd (in liq) (1986) 67 ACTR 3 at 18; Noja v Civil and Civic Pty Ltd & Ors[1990] FCA 135; (1990) 93 ALR 224; Sessions at [42].
27. The prospects of success of the proposed plaintiff are also a matter which may be considered: Paramasivam v Flynn[1998] FCA 1711; (1998) 90 FCR 489 at 496-497; Doyle v Gillespie (2010) 4 ACTLR 188 at [43].
28. When assessing the prejudicial effects of delay it is relevant to consider the whole of the delay between the cause of action arising and a hearing of the proceedings if leave is granted rather than the marginal delay between the end of the limitation period and such a hearing: Brisbane South at 548-549, 554-555, 556
29. Prejudice may be presumed as a consequence of the effluxion of time even if actual prejudice is not demonstrated: Brisbane South at 551, 556.
30. Where actual prejudice of a significant kind is demonstrated or a real possibility then it is more in accord with the legislative policy underlying limitation periods that the plaintiffs lost right should not be revived than the defendant should have a spent liability reimposed: Brisbane South at 555.
The decision of the Master
In his decision, his Honour considered each of the matters set out in s 36(3) of the Limitation Act. A brief summary of his Honour’s findings is as follows.
(a) Length of and reasons for the delay
His Honour noted that the delay was 8.7 years. His Honour referred to the workers compensation claim lodged by Mr Dykes, his subsequent surgery, his return to work and his resignation from Bunnings in December 2005. His Honour noted that, at that time, it was reported that he had no ongoing pain symptoms but continued to have decreased flexion of his knee.
Although continuing to suffer some symptoms thereafter, Mr Dykes only occasionally needed medical treatment and understood that nothing more could be done medically about the injury. More recently, he had worsening symptoms and his limp caused a relative to soon him to seek legal advice from recommended lawyers, which he did relatively promptly after receiving that advice. His lawyer took the steps which have been set out in the extract from his Honour’s reasoning above (at [18]).
His Honour found that this constituted “a reasonable explanation for the plaintiff’s delay” and rejected the submission of Bunnings that Mr Dykes had made “a choice not to pursue” a common law claim.
(b) Prejudice to Bunnings
His Honour found that there was prejudice by the erosion of memory which is to be presumed: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551, 555-6.
On the other hand, his Honour referred to the material relating to the original workers compensation claim and documentary evidence of medical procedures and examinations immediately after the incident and in the years following.
His Honour noted that some records, however, had been destroyed, the erosion of memory apparent from the statements of witnesses that have been obtained by Bunnings and its advisors and the then inability of it to get statements from two named witnesses. His Honour also noted that Bunnings had not found policy procedures with respect to training, induction and other occupational health and safety issues.
His Honour discussed these matters in detail and concluded:
·in relation to the workers compensation claim:
These workers compensation claim records are significant, because along with the medical records, which I will turn to below, they permit a reasonable assessment of the plaintiff’s medical condition between March and October 2003.
·in relation to the medical records:
In my view, the records that are available are clearly sufficient for there to be a fair trial. There appears to be a good documentary chain available to document the plaintiff’s condition following the accident and address any issue of causation that the defendant wishes to raise. The content of the missing records is unlikely to add materially to the information in the records still available.
· in relation to witnesses:
Overall, although it is clear that there has been an erosion of memory on the part of these persons from whom statements have been obtained on what appears, at this stage, to be the central area of contest, the cleaning and operation of the saw. Witnesses involved with the operation of the saw in 2003 are still available and, so far as their statements record, have reasonable recollection of the circumstances and issues with the operation of the docking saw. The absence of statements from Mr Badham and Mr Dromgold appears to reflect their reluctance to response to insurance investigators rather than any lack of recollection.
While I accept that the general erosion of memory must be given significant weight, I am not satisfied that the defendant would not have a fair trial because of the inability to locate relevant witnesses or the lack of recollection due to the passage of time. There appears to me to be a significant body of evidence available as to the manner in which the docking saw and waste generated by it was managed and sufficient information about the particular set up of the table saw to permit the issues between the parties to be fairly litigated.
· in relation to other records:
given the unusual nature of the accident and the particular allegations of negligence, in the circumstances of this case it is unlikely that the ‘various policies and procedures’ will be of significance in determining the question of liability in this case.
(c) Conduct of Bunnings after the cause of action accrued to Mr Dykes
There was no relevant conduct that prevented Mr Dykes from ascertaining the facts of the case.
(d) The duration of any disability
His Honour accepted that this related to legal disability, not physical or mental disability. See the discussion of the issue in Doyle v Gillespie (2010) 4 ACTLR 188 at 203-5; [81]-[90]. It appears that his Honour’s view is the most likely correct view. His Honour noted that there was no relevant disability.
(e) The prompt action of Mr Dykes following knowledge he may have a claim
His Honour concluded that Mr Dykes contacted his lawyer, Mr Little, promptly and that Mr Little acted promptly.
(f) The steps taken by Mr Dykes to obtain relevant advice
His Honour concluded that the reports Mr Dykes had obtained initially recorded a positive prognosis, explaining his delay in obtaining legal aid medical advice and commencing proceedings. His Honour also concluded that nothing else in the expert advice told for or against an extension of time.
(g) Other matters
The list of considerations in s 36(3) of the Limitation Act is not exhaustive and the court can, and should, consider all other relevant matters. See Doyle v Gillespie at 98; [43].
His Honour held that it was also necessary to show that Mr Dykes had an arguable case. See Doyle v Gillespie at 210; [118]. His Honour concluded:
Although applications such as this should not be turned into mini trials, if the case is an obviously strong or obviously weak one, then that is a factor which will influence the exercise of discretion. In my view, the plaintiff has established an arguable case. It is likely that there will be a significant dispute as to whether or not negligence can be established, but that is something which I do not need to assess now.
After considering all these matters, his Honour concluded:
The extension of time sought is a substantial one, being 8.7 years. That is a significant period and a factor that weighs against any extension. However, for the reasons I have identified above, none of the matters I have considered indicate that a fair trial of the plaintiff’s allegations is not possible. Considered collectively, those factors do not indicate that a fair trial is not possible. Although the delay is a long one, in my view, it is just and reasonable to grant the extension of time sought by the plaintiff.
Nature of the Appeal
The respondent raised an issue about the nature of the appeal which is highly relevant to my task.
Counsel for Mr Dykes submitted that I should not accept that the principles in House v The King (1936) 55 CLR 449 apply to the appeal as it was not from a discretionary decision of the Master.
In this jurisdiction, it had been suggested that those principles do apply. In an Addendum to his reasons, Gray J, with whom Moore J agreed on this point, held in Blunden v The Commonwealth (2007) 224 FLR 257 at 264-5; [27], that such a decision was an interlocutory decision and should also be dealt with on appeal as the High Court had considered in House v The King. See also Paramasivam v Flynn (1998) 90 FCR 489 at 494 (on appeal from this Court) and Harrex v Hall-King [2012] TASSC 45 at [16]. None of these decisions, however, considered the issue in any depth or, apparently, after argument or detailed consideration.
On the other hand, Campbell JA, with whom Giles and Ipp JJA agreed, said in Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56 at [110]-[111]:
110.... I see nothing in the construction of the Limitation Act that leads to a conclusion that the way in which an appellate court decides whether there is error in a decision that it is just and reasonable to extend the limitation period should be different to the way in which it decides whether there is error in a decision that a defendant has, or has not, been negligent. In so far as there is a relevant purpose in the Limitation Act, it is that there should be limitation periods, but that they should be able to be extended in particular circumstances. Considering that purpose does not lead to appellate review of decisions about whether it is “just and reasonable” to extend the limitation period being approached any differently to decisions about whether a defendant has acted without reasonable care, or a contract is unjust. In all these circumstances I conclude that appellate review of a decision whether extension of a limitation period is just and reasonable, is conducted in the same way as Warren v Coombes requires an appellate court to review a decision whether there has been a breach of a duty of care.
111 It will may be that adoption of that approach to appellate review does not ever result, or only rarely results, in a different decision being arrived at to that which would be arrived at if the decision was reviewed on a House v R basis. Even so, it is important for this court to follow the correct principles in carrying out its appellate task.
That approach has been followed in Gilmore v Waugh [2012] NSWCA 263 at [56] and Cox v Keys [2012] NSWCA 268 at [13].
The difference may be shown in the comparison between the approach of Hoeben JA, with whom Tobias AJA agreed, in Eades v Gunesteps (2012) 61 MVR 328 at 337; [41]-[42], though their Honours’ conclusion was not after agreement but through “acceptance of the parties”, and the approach, on the other hand, of Basten JA in the same case at 330-1; [2]-[8].
With respect, the approach of Campbell JA appears to be correct. It is not a matter of discretion whether it is just and reasonable to extend time so as to defer the limitation bar. Having said that, however, the court does have a discretion, even after finding that it is just and reasonable to defer the limitation bar, as it “may” extend the time to commence proceedings, though it seems likely that there would be few occasions where, despite finding that it is just and reasonable to defer the limitation bar, it should not, in the exercise of a discretion, be done. There would have to be extraordinary reasons for taking such a course.
This seems to be the approach taken by the High Court in Brisbane South Regional Health Authority v Taylor at 547, when Toohey and Gummow JJ referred to s 31(2) of the Limitation of Actions Act 1974 (Qld), which was similar in structure to s 36 of the Limitation Act. Their Honours said:
The discretion conferred by the sub-section is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission of Victoria in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd:
It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.
(footnotes omitted)
The decision of the Master, as set out above (at [37]), was that it was just and reasonable to grant the extension sought. There were no subsequent matters which were referred to by Bunnings or relied on by it to suggest that, having come to that conclusion, his Honour should nevertheless exercise a discretion not to extend time.
Thus, I must find error in the decision of the learned Master before I may interfere on this appeal.
Submissions of Bunnings
Bunnings relied on the evidence as to prejudice before the learned Master which, it submitted, was not contradicted by other evidence adduced by Mr Dykes. Indeed, it submitted, Mr Dykes did not even attempt to demonstrate that such evidence was not reliable.
Bunnings first submitted that there was no adequate explanation for the delay. Mr Dykes, it was submitted, “did not consult a solicitor because he chose – for his own reasons – not to consult a solicitor”.
This, Bunnings contended, was tantamount to Mr Dykes consciously not acting to pursue a course of conduct and then later seeking to pursue that course. Reference was made to Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207 at 225-6; [91]-[98].
It is only necessary to refer to two paragraphs of that decision, 225; [91] and 226; [98], as follows:
91.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 ...
…
98.In my opinion, to grant leave to sue long after the expiry of a limitation period, when the applicant has made a deliberate decision to allow the statutory period to expire, in the absence of special circumstances explaining satisfactorily the conduct of the applicant, would set at naught the purpose of the legislation.
As counsel for Bunnings conceded, the applicant for an extension of time, in that case, had conferred with counsel and her solicitor and made a deliberate decision not to bring proceedings for common law damages but to pursue only her claim for workers compensation.
Here, Bunnings relied on the failure to seek legal advice over many years which, it was submitted, could not be explained by a lack of knowledge about being able to consult a solicitor. That, it was submitted, should be understood as a decision not to seek common law damages, with the consequent delay until the later decision ‘remaining materially unexplained”.
It was also submitted that the need to explain the delay was to ensure that there was “forensic diligence” and to protect defendants against the injustice of stale claims: Salido v Nominal Defendant (1993) 32 NSWLR 524 at 532-3. In that passage, Gleeson CJ set out “guidelines” for making decisions to extend time under the Motor Accidents Act 1988 (NSW) and one guideline referred to diligence as a material factor. Thus, it was submitted, the failure to pursue legal advice in a timely fashion suggested that there is no adequate explanation for delay.
Bunnings also relied on Mason v Murray’s Charter Coaches & Travel Services Pty Ltd (1998) 88 FCR 308 at 321, 335, for the proposition that a lack of diligence in seeking legal advice in a timely fashion speaks against an adequate explanation for the delay being demonstrated.
Finally, Bunnings relied on the importance of an explanation that justified a favourable exercise of a discretion and what had fallen from the plurality in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 215; [103], namely that
where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for.
Counsel for Bunnings then accepted that, despite having made, in all, three workers compensation claims, Mr Dykes may not have known that he might have had a common law claim or of any limitation period to such a claim. It was accepted that the lay public are unlikely to know the difference between the two types of claims. Mr Dykes was, nevertheless, it was submitted, required to explain why he did not seek legal advice earlier, a matter, it was submitted, he did not address in the affidavit or oral evidence before the Master.
The oral evidence showed that he had an awareness of an ability to seek legal advice through some knowledge of common advertisements in the Territory by lawyers conducting personal injuries practices.
What was at issue here was that Mr Dykes gave evidence that while his disabilities had improved, he was never completely cured. His evidence was that he continued to have difficulties and it was this, it was submitted, that required diligence by Mr Dykes to seek legal advice. His evidence, it was submitted, did not address that issue.
As to prejudice, it was accepted that Bunnings had an evidentiary onus to put before the Court the relevant material demonstrating the prejudice and, if done, Mr Dykes bore the persuasive burden of proving that such prejudice did not prevent a fair trial. I accept that, in most cases, the question of prejudice will be critical if not determinative of the question of whether it is just and reasonable to extend the time for commencing the proceedings.
The challenge to the decision of the learned Master on this issue was that his Honour is said not to have appreciated the evidential impact of the evidence of prejudice adduced by Bunnings. This, it was said, demonstrated that relevant personnel of Bunnings were materially unable to assist Bunnings in meeting the case to be brought by Mr Dykes. Thus, it was said, there was not merely presumptive prejudice but also actual prejudice which, it was further said, Mr Dykes had not rebutted nor contradicted.
The issue to which it was said this was relevant was that, as co-workers, at best, only recalled an injury at work, the question of whether there was negligence was unable to be considered properly by Bunnings and it could not place relevant material before the court on that issue.
This went to the criticism Bunnings made of the Master who, it was submitted, had not given proper, perhaps no, weight to the actual prejudice that it was said Bunnings had suffered.
It was acknowledged that a fair trial is not dependent upon all relevant material being available and could accommodate the absence of some material; it was, however, a question of degree. In this case, it was said that Bunnings would not have any substantive, practical or real capacity to present its own case in answer to the allegations of negligence.
The passage of time had also, of course, affected the recollection of the circumstances of the incident and this would affect the quality and reliability of the evidence actually to be given.
Further, because the injuries Mr Dykes suffered were not major or catastrophic, his engagement with Bunnings and its workers compensation insurer was limited and principally in the early years, so that the file on the matter had been closed.
It was pointed out that even the account of the specific circumstances of how the injury occurred, as described by Mr Dykes, differed on occasion.
This meant that the approach made by the Associate Judge in Stefek v Garnama Pty Ltd at [23], [29] and [30] had actually not been followed.
The submissions were that the Master had accepted that there was presumptive prejudice; his Honour referred to “the general erosion of recollection”, but that his Honour had ignored the actual prejudice suffered by Bunnings. That, it was submitted, was sufficient to set aside the decision on appeal.
It seems to me that, if actual prejudice is shown, then the presumptive prejudice may well be substantially, if not wholly, subsumed into it. That is to say, if witnesses say they have no recollection, that is actual loss of memory. To say that there is, as well, a presumption that the passage of time erodes memory seems to me to “double count” the prejudice shown by such statements of those witnesses, though there may, of course, be issues which a witness does not address in such evidence, but which may arise at trial and on which the witnesses’ memory will fail, so some recognition of ongoing presumptive prejudice may still be relevant.
What was said here to be shown as actual prejudice was that witnesses had made statements to Bunnings and its investigators. It was the content of those statements that were said to show the actual prejudice.
The case that had to be met by Bunnings comprised the precise circumstances of the incident as alleged by Mr Dykes and whether those circumstances could be shown to involve a breach of a duty of care Bunnings owed to Mr Dykes. Mr Dykes described the build up of sawdust over the weekend because of high use of the saw and that he had to climb under the saw to clear out the sawdust. When he did so, his leg became caught and he injured himself.
It was submitted by Bunnings that the description Mr Dykes gave was so “loose” that the evidence available, compared to that needed to assess the claim, was compromised. This, it was submitted, was because the evidence that was available was said to be irrelevant. That is, it was evidence about general procedures or about circumstances on days removed or remote from the day on which the injury occurred.
The relevant information about induction, policies and procedures relevant to the activities of Mr Dykes’ operation on the day of injury were said not to be available. The evidence that was available was described as “supposition, reconstruction or some form of workplace informed guesstimate” and so inadmissible. Even if admissible, it was further submitted, the evidence would be of low probative value and so liable to be dismissed by the trial judge.
Bunnings’ complaint was that it had put its evidence before the Master but his Honour did not really consider whether it could, in reality, meet the case put by Mr Dykes. Further, the absence of documentation becomes more problematic in cases of delay for where there is little delay, memory can often fill the void of unavailable documentation. Here the actual prejudice was that Bunnings could not “call any witnesses to contradict [the allegation as to the particular circumstances of the accident] or put an alternative version”.
A further challenge was that the attempt by Mr Dykes to deal with aspects of causation by relying on the Medical Report of Dr Cairns should be regarded as unsuccessful. It was submitted that it appeared that there were, in fact two injuries, the relevant one in 2003 and an intervening one in 2014. This was said to be relevant because, between the two, Mr Dykes was able to return to full duties and then engage in active sport, including dirt bike riding and indoor cricket. This raised significant questions as to the cause of the damage.
Consideration
A significant matter to determine is whether a fair trial is possible: Doyle v Gillespie at 198; [43]; Brisbane South Regional Health Authority v Taylor at 547.
A fair trial is, as pointed out in Holt v Wynter (2000) 49 NSWLR 128 at 142; [79], not a rigid or inflexible standard. As Priestly JA said:
Brisbane South itself demonstrates that different judges have somewhat different ideas on the matter. One thing seems to be clear; that is that the term is a relative one and must, in any particular case, mean a fair trial between the parties in the case in the circumstances of that particular case. Further, for a trial to be fair it need not be perfect or ideal. That degree of fairness is unattainable. Trials are constantly held in which for a variety of reasons not all relevant evidence is before the court. Time and chance will have their effect on evidence in any case, but it is not usually suggested that that effect necessarily prevents a fair trial.
(a) Explanation for the Delay
I cannot accept that Mr Dykes made a conscious decision not to make a claim for common law damages. The chronology is important.
He made a claim for Workers Compensation on 13 March 2003, though his employer made a notification on 10 March 2003 on Mr Dykes’ form, signed by its employee. The employer stated, “The Claim is valid”.
The claim was accepted by the then insurer on 24 March 2003. Mr Dykes had no cause to seek legal advice at that stage and asserts, without contradiction, that he did not do so.
This makes the circumstances of this case quite different from those in Itex Graphix Pty Ltd v Elliott.
Mr Dykes underwent surgery on 2 April 2003 and, by October 2003, had returned to full-time work where his knee appeared to have healed substantially, though there was some residual impairment and symptoms which, however, he felt that he could manage. He was also told by his medical advisors that he should continue with physiotherapy until his knee was “right”. He said that he thought that this meant that medical help with his knee was finished.
His evidence was that, despite his ongoing symptoms, he could engage later in the full range of carpentry work, including climbing up and down ladders, working in confined spaces and doing heavy physical work, including lifting. He also resumed dirt bike riding, about six to eight times a year, and regularly played indoor cricket and, very occasionally, golf. Initially, his activity was clearly not significantly affected. He also continued to attend on his general practitioner and had taken time off work on occasion because of his knee disability, but did not consult a doctor on many of those occasions. Given what the doctors had told him, he did not think that there was anything he could do. He was not challenged on that conclusion.
It was only when, in late 2013, that the disability became sufficiently bad to be noticed by his brother-in-law that it was recommended that he seek legal advice.
He said that, before that time, he was unaware that he could make a claim against Bunnings. He said that he did not really know that, if he was hurt at work, he was entitled to make a claim, though he did know that he was required, while employed by Bunnings, to report any injuries. In this case, he did that and he knew that the forms went to the insurer, which accepted the claim.
He agreed, in cross-examination, that he had seen advertisements on television suggesting that people who have injuries go and seek advice.
He explained that he thought that he could “work through” his injuries, especially as, after the operation, he improved. Later, it gradually became worse and he battled through because, at that time, he was self-employed.
I am satisfied that Mr Dykes did not deliberately choose not to exercise rights of claim nor that he knew he had rights to a common law claim as opposed to a claim for workers compensation.
It was never suggested to Mr Dykes that he was aware of a limitation period applicable to any claim; indeed, it seemed accepted that he was not. I am satisfied that he was not aware of any such period.
It is implicit in his Honour’s findings that Mr Dykes had no real reason for seeking legal advice until the condition of his knee deteriorated. In my view, his Honour was correct in so finding.
The reference by Bunnings to the guidelines in Salido v Nominal Defendant, which, it was submitted, showed that Mr Dykes had not pursued his claim with the diligence required does not seem to me to apply to this case.
In the principles, as quoted by the counsel for Bunnings, the very relevant introduction was omitted, which stated, at 532:
1.Section 52(4) confers a discretion which is to be exercised judicially, in a manner that furthers the purposes of the statutory context in which it appears.
In the first place, I have found that, at least the determination of whether it is just and reasonable to extend time is not a matter of discretion. Secondly, the statutory context of the Motor Accidents Act is quite different from that of the Limitation Act. In the former Act, there is a quite prescriptive regime of reporting which is mandated. There is nothing of that kind in the latter Act. The reference to diligence should, in part, be seen in that context, as Gleeson CJ indicated was required.
Nevertheless, it is helpful to note that Gleeson CJ in Salido v Nominal Defendant at 532 did accept that “delay in the onset of symptoms is a circumstance that might make it equitable to grant leave to commence proceedings”, not dissimilar to this case.
Further, in the same case, Kirby P at 540, accepted that an employee may well think that workers compensation is the only entitlement that he or she may have, though, in that case, unlike the present, the applicant was not born in Australia and had some difficulties in communicating in English.
Similarly, the reliance by Bunnings on Mason v Murray’s Charter Coaches & Travel Services Pty Ltd does not seem to me to be helpful.
In that case, as Sackville J pointed out at 334, Mr Mason had the benefit of legal advice from a day less than two months after suffering the injury and, his Honour emphasised, “at regular intervals throughout the period”.
Further, Mr Mason was expressly advised to pursue workers compensation proceedings rather than a common law claim. There was no evidence, either, to suggest that Mr Mason had experienced an unexpected deterioration to his condition shortly before he sought to commence proceedings.
I accept that Sackville J appeared to accept that diligence in pursuing his right was required of Mr Mason and his lawyers. It seems to me that, here, the lawyers for Mr Dykes did pursue his rights expeditiously and diligently once he gave them instructions as he did when he was advised of what were his rights.
I do not find that decision of great assistance in this case, other than, of course, some general comments of principle, but none which seem to me to lead in a direction favourable to Bunnings.
Finally, the reference to Aon Risk Services Australia Ltd v Australian National University is to a proposition that cannot be doubted, namely that the explanation for delay is required. Indeed, Mr Dykes proferred one. The case cannot assist in the real question here, which was whether the explanation was adequate.
Much was made, in oral submissions, of the need for diligence. It must be accepted that if an injured person does not diligently pursue the rights that he or she knows they have, this will tell against them in an application to defer the limitation period.
There can, however, be no lack of diligence if one does not know what one is required to pursue. A deliberate choice not to pursue a claim or casual procrastination is culpable lack of diligence. Where, as here, Mr Dykes was not aware that he had any future claim to pursue, does not show lack of diligence and does not tell against his application.
Of course, Mr Dykes bears the onus of proving that it is just and reasonable that the limitation period should be extended. See S & B Pty Ltd v Podobnik (1994) 53 FCR 380. Insofar as he is required to prove that there is a reasonable explanation for the delay, I am satisfied that he has done so. The Master made no error in accepting the explanation for the delay.
(b) Prejudice
There were, it was submitted for Mr Dykes, two strands to the prejudice that the delay had caused: the unavailability or inadequate memory of potential witnesses which was identified by Bunnings and the medical evidence on causation.
As to the first matter, the Master was clearly aware of the issue and the existence of some prejudice. His Honour expressly addressed the question of witnesses at some length.
It has to be understood that these were not said to be eye-witnesses to the incident itself. That, of course, does not end the inquiry. Nevertheless, this does make the situation different from that where eye witnesses who could give evidence of the actual mechanism of the incident have become unavailable by death, by being uncontactable or by loss of memory.
Nevertheless, evidence of the circumstances more generally is by no means irrelevant. This may include evidence of regular practice in relation to clearing sawdust from the saw, policies of Bunnings, indeed the configuration of the saw and its location.
Two persons, whose names were given to the lawyers for Bunnings by the lawyers for Mr Dykes, had not been able to be contacted by the investigator retained for that purpose. That does not say that they cannot be contacted nor that they cannot be of assistance. The investigation of these employees was set out in a report of 20 November 2014. That report showed that in one case a telephone call was made on 19 November 2014 and then a letter requiring contact dropped later that day into the letterbox of the residence of the witness whose address the investigator clearly had. In the other case, there was no phone listing but again the investigator had an address, though the house appeared unoccupied when he visited on 19 November 2014 but, again, he dropped a letter in the letterbox.
No further evidence was given of any response to these communications made six days before the hearing, nor any further efforts that were made to make contact with those witnesses.
This seems to me to be quite inadequate as a basis for relying on the unavailability of these witnesses or that their memories of relevant events or procedures would be unavailable. I do not suggest that Bunnings is required to go to unreasonable lengths to ascertain what evidence is available but the efforts actually reported seem to rise only a little higher than perfunctory.
I accept that this cannot show that those witnesses have relevant evidence available to Bunnings to enable it to evaluate the claim by Mr Dykes that he was injured by negligence for which Bunnings is liable. It clearly cannot go so far. The efforts, however, show that Bunnings cannot rely on an assertion that these witnesses are uncontactable and, therefore, unavailable or that they cannot give admissible or otherwise helpful evidence. Thus, it does not much assist Bunnings, though, at the same time, it does not assist Mr Dykes, other than to show that he has sought to assist by providing the identity and contact details of potential witnesses.
Two other witnesses were available and in one case a statement was taken and in the other, a summary record of a telephone conversation made. Neither witness had a good recollection of the incident, one none at all. They both said there were policies and procedures but neither could confirm that there were such policies or procedures for the saw. One gave another name of an employee in the area who was subsequently contacted.
That latter person had given quite a detailed statement which addressed a number of issues relating to the saw, and its operation, as well as the training and approval of persons to operate it.
Other witness statements were taken with varying degrees of recollection but which did show quite some detail about the saw, its operation, policies in place, induction and approval of operators. One gave quite detailed information and, indeed, prepared a diagram showing the saw and its location. Another gave extensive details about the saw and its operation, including details about cleaning.
Thus, there were three relatively detailed statements, though the witnesses were not able to address every relevant detail. The evidence they were able to give, as judged by their statements, was limited by their recollection but did address many of the relevant issues.
One witness said that dust extraction was in place for the saw, though it failed from time to time. Another witness, who provided induction, gave a general description of the induction but does not appear to have been asked what was covered in it. A further witness, who drew the diagram, explained his use of the saw and its location. He recalled some training and believed he was given paperwork but he did not consider that cleaning was a topic covered, being “more common sense”. It is not irrelevant that the Work Safe Practice document for the current saw, apart from requiring the operator to “[t]urn on dust extraction” refers to cleaning but gives no more specific directions than that. The witness became a trainer for users of the saw. He also recalled the dust extractor which “was of poor design” and he described some of the problems. He considered it “never ... necessary to crawl under the saw to clean sawdust and [he] never saw anyone do this”. Yet another witness described his memory as vague but gave a quite detailed description of the saw and its operation. He knew also of the dust extractor and that it became blocked, noting that the sawdust would build up under the saw, but said a brush and long-handled broom was used to pull out the dust. He also never saw anyone lie on their stomach under the saw to clean it. He referred to induction but did not recall specific instructions on cleaning.
The assessment by the Master of this evidence is accurate when his Honour said:
Overall, although it is clear that there has been an erosion of memory on the part of these persons from whom statements have been obtained on what appears, at this stage, to be the central area of contest, the cleaning and operation of the saw. Witnesses involved with the operation of the saw in 2003 are still available and, so far as their statements record, have reasonable recollections of the circumstances and issues with the operation of the docking.
Given that this is not a case of a contest between the account that Mr Dykes has given of the injury and that of other eye witnesses, the quality of the evidence does seem to be appropriate to address the real issues in any trial.
That issue is whether there was a safe system of work which, of course, includes consideration of a foreseeable risk of injury, which seems to me to be able to be addressed from the evidence of the three witnesses, in particular, who gave evidence of use and maintenance of the saw.
That there was no documentary evidence produced at this stage is not necessarily, it seems, from its unavailability. The employee of Bunnings who was tasked with searching for documents deposed in her affidavit that the relevant records were not stored electronically and she has been unable to locate any policies and procedures and cannot recall what they were. She gave no details of what searches she had made, if any, for she also deposed that she was unaware “how the old archives can be searched”. She did not say what inquiries, if any, she had made to gain the necessary information about how apparently extant archives could be searched.
The current evidence could well be sufficient as a basis for suggesting that Mr Dykes was engaged in a “frolic” of his own, unless he can explain how what appears to be an unusual or, given the statement of one witness, an unnecessary procedure, was what he undertook. It is clear that Bunnings are able to respond in some detail to the claim made by Mr Dykes so far as the evidence of the use of the saw generally is concerned, even in the absence of policies and procedures which, on the evidence may not, in fact, exist.
The fact that it appears that the accounts given by Mr Dykes of how the injury occurred varied in his telling to doctors does also not seem to result in prejudice to Bunnings.
At any trial of his claim, Mr Dykes must satisfy the court, for he bears the onus, that Bunnings were liable for the injuries he suffered. That there were some discrepancies in prior statements he made and his oral evidence is not prejudicial to Bunnings; indeed, it will, no doubt, be exploited by its lawyers at the trial to undermine his case. The discrepancies do not show that his claim is so frivolous or vexatious or that it so lacks in merit that it should not be permitted to proceed.
It has been held that the court, in considering an application such as this, will consider, to some extent, the prospects of the claim succeeding if it were permitted to proceed to trial. See S & B Pty Ltd v Podobnik at 386, 484-5 and Australian Capital Territory v Ives (Unreported, Full Court of the Federal Court of Australia, Gallop, Wilcox and Finn JJ, 647 of 1996, 26 July 1996) at p 5. From that consideration, however, the court is not required to conduct the ultimate trial. See Paramasivam v Flynn at 497. Indeed, in Redmond v J C Hutton Pty Ltd (Unreported, Australian Capital Territory Supreme Court, Crispin J, 442 of 1999, 1 October 2004) at [19], Crispin J described the test as no more than requiring proof of “an arguable case”.
In my view, the discrepancies in the evidence given by Mr Dykes could not be said so to affect the strength of his case that an extension of the limitation period should not be granted. There is an arguable case.
Finally, the question of the medical evidence and causation needs to be considered.
The submission that the condition of Mr Dyke’s knee is different from the injury undoubtedly suffered on 10 March 2003 and that there is now no possibility of investigating whether there is any supervening event was not put to the Master. That is a powerful reason for rejecting the challenge. See University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; Multicon Engineering Pty Ltd v Federal Airports Corporation (1997) 47 NSWLR 631 at 645-6.
Although there was some prejudice identified by his Honour over the loss of the file of one of the doctors treating Mr Dykes, his Honour was satisfied that there were sufficient contemporaneous records of that doctor’s examination and opinion, which included letters and reports from him and the physiotherapist. The details of the assessment of the injury, as well as the progress of recovery, and the records of the hospital where the doctor performed the surgery, including the surgery operation report, were also available.
The current condition of Mr Dykes’ knee included derangement of the medial meniscus which was torn in the 2003 injury. It was the opinion of Dr Cairns that the current condition was caused by that injury. This is an appropriate expert opinion on which Mr Dykes is entitled to rely and he does not improperly rely on that report. Nothing in the current medical evidence implies some intervening event or alternative causation.
In any event, the records of the general practitioner treating Mr Dykes remain available. They were reproduced in the appeal papers. An inspection of them shows no evidence of any traumatic event or other separate injury that might represent a new intervening event.
A further challenge to the difference between the hearing before the Master and the case on appeal was the way the case on actual prejudice was also put on appeal.
It was submitted on behalf of Bunnings that there was an insufficient documentary trail to answer the questions in issue by the pleadings for Mr Dykes and that this is compounded by the lack of recollection of the witnesses who have been identified and consulted by Bunnings.
In answer, it was said for Mr Dykes that the Master was not taken to the evidence of the individual witnesses in the way that I was taken to them on the appeal. Indeed, before the Master the statements were dealt with as follows:
HIS HONOUR ... If you want me to place any particular reliance on them, you will need to take – I’m not necessarily going to read every statement to hunt down ---
MR MULLER: I’m not asking you to. What I’m saying, I suppose I’m inviting my learned friend to say something different if he wishes to. The statements demonstrate that it is safe to conclude that the quality of the evidence has deteriorated with the passage of time. All of these people display a lack of recollection of relevant events.
HIS HONOUR: Sure, but that becomes a significance if the event is not just relevant but sort of more significant presumably for the actual outcome of the case.
MR MULLER: Your Honour, it is still of significance because of the presumption of prejudice that arises with the passage of time. It provides a basis for your Honour to conclude that there is demonstration of the deterioration in people’s recall over the eight years since the limitation period expired in this case. That is what it shows. It shows that the chances of a fair trial are greatly reduced because people don’t remember these things as well as they would have shortly after the incident. No-one has asked them to remember then since.
This, of course, is presumptive prejudice and the assessment his Honour made of the statements is a fair way to address that issue. Indeed, his Honour found, on the basis of the statements, with the reservation about the presumptive prejudice that is caused because of the effect on memory of delay:
While I accept that the general erosion of memory must be given significant weight, I am not satisfied that the defendant would not have a fair trial because of the inability to locate relevant witnesses or the lack of recollection due to the passage of time. There appears to me to be a significant body of evidence available as to the manner in which the docking saw and waste generated by it was managed and sufficient information about the particular set up of the table saw to permit the issues between the parties to be fairly litigated.
The claim is, unlike the criticism by Bunnings of being “loose”, that there was an unsafe system of work because Mr Dykes had, in order to clean away the sawdust, to get under the saw in a cramped space when there were impediments (wires hanging down on lumps of wood) to his progress.
The diagram provided by one of the witnesses located by Bunnings is an important piece of evidence directly relevant to that issue.
As to whether what Mr Dykes did was part of the procedures permitted by Bunnings, another witness stated that he had never seen anyone do what Mr Dykes did and “if I had, I would have stopped him”. There is no reason to find that such evidence is inadmissible.
Contrary to the submissions on behalf of Bunnings, there is relevant, admissible evidence that goes directly to the issues raised on the pleadings.
In addition, there was some evidence of training, problems with the dust extractor and evidence about alternative and proper methods of cleaning the sawdust from under the saw. Thus, relevant, responsive and logical evidence in fact does exist.
Even despite the change of approach on the appeal, the material available after an analysis of it does not reach the level of the challenge mounted by Bunnings.
As counsel for Mr Dykes succinctly put it:
with respect from this being a case in which there is an absence of evidence that will allow a defendant to defend itself, this defendant has quite properly gone out and explored what evidence is available to it, and has come up, having regard to the very – admittedly unusual and very particular case which is being brought against it – but it has come up with three witnesses who can give vital evidence which on one view of it would lead to the failure of the plaintiff’s case.
While this does not completely address the issue of procedures, the witness’s evidence was that there were no procedures he could recall.
The archives do not seem to have been accessed. A negative search would support the witness’s evidence that there were to procedures, though it would also be consistent with such procedures having been lost. The absence of a search, however, cannot be relied upon to show actual prejudice. Indeed, the absence of documents seems in this case not to have been established as a prejudice from the passage of time. The evidence about the existence of documents said to be highly relevant is not at all compelling. It is asserted on the basis of a statement from an employee who states that she does not know how to search the non-electronic archives and, so far as her evidence goes, has not made contact with anyone, including former employees, who might know how to do so.
There was a reasonable volume of material which would allow an assessment of the likely issues on liability. See New South Wales v Plaintiff A [2012] NSWCA 248 at [83].
Even if the case as argued before me were different to that before the Master, and counsel for Mr Dykes asserted it was and counsel for Bunnings denied it, the decision of the Master cannot be said to have been in error.
Bunnings has not shown any error of fact or law or in the application of principles that justifies appellate intervention.
Disposition
The appeal must be dismissed. I shall do so.
| I certify that the preceding one hundred and forty-nine [149] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 18 August 2016 |
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