Edwards v Kayefsteve Pty Ltd
[2019] VCC 743
•29 May 2019
| IN THE COUNTY COURT OF VICTORIA AT MILDURA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-04013
| ALISON JANE EDWARDS | Plaintiff |
| v | |
| KAYEFSTEVE PTY LTD (ACN 077 156 686) | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 18, 19, 20 and 21 March 2019 | |
DATE OF JUDGMENT: | 29 May 2019 | |
CASE MAY BE CITED AS: | Edwards v Kayefsteve Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 743 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION – LIMITATION OF ACTIONS
Catchwords: Serious injury – injury to the right foot – pain and suffering only – Application for extension of period during which action may be brought – whether just and reasonable
Legislation Cited: Accident Compensation Act 1985, s134AB; Limitation of Actions Act 1958 (Vic)
Cases Cited:Kelso v Tatiara Meat Company Pty Ltd [2010] VSCA 12; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Humphries & Anor v Poljak [1992] 2 VR 129; Bell v SPC Ltd [1988] VR 123; Bell v SPC Ltd [1989] VR 170; Tsiadis v Patterson [2001] 4 VR 114; Prince Alfred College Incorporated v ADC [2016] HCA 37; Sparkes v Hylemit Pty Ltd [2016] VSC 453; Brisbane South Regional Health Authority v Taylor (1986) 186 CLR 541; Marceta v Efandis [2016] VSC 265; Richards v State of Victoria & Ors [2001] VSC 52; Delai v Western District Health Service & Anor [2009] VSC 151; Cowie v State Electricity Commission of Victoria [1964] VR 788; Koumorou v State of Victoria [1991] 2 VR 265; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7; Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517; Holcombe v Hunt [2018] VSC 55
Judgment: Limitation period in respect of the plaintiff’s causes of action extended. Leave granted to the plaintiff to bring proceedings to recover damages for pain and suffering as a result of the right foot injury suffered in the work accident.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Ms M J Lang | Ryan Legal |
| For the Defendant | Mr A J McG Moulds QC with Mr R Kumar | Hall and Wilcox |
HER HONOUR:
1 In about August 2008, the plaintiff was employed with KFC Mildura. In early December 2009, whilst working in the kitchen, she injured her right foot when it fell into a defectively guarded drain in the kitchen. She immediately felt pain and discomfort in her right foot.
2 On 15 December 2009, the plaintiff attended her general practitioner and reported the incident. The records of the Tristar Medical Practice were before the Court. The records confirm that in December 2009, there was a discussion with the plaintiff in relation to WorkCover, as the injury occurred at work. The plaintiff was referred to the Mildura Base Hospital; however, the letter of referral makes no mention of the injury being work related. The plaintiff underwent an x-ray and was diagnosed as having a fractured the right 5th metatarsal.
3 Between January and March 2010, the plaintiff attended the Fracture Clinic at the Mildura Base Hospital, where she was placed in a leg cast. She was treated conservatively. In about mid-April 2010, Mr Douglas Gardiner, orthopaedic surgeon, diagnosed a non-union of the right 5th metatarsal and suggested an internal fixation be performed.
4 The plaintiff continued working some shifts with KFC Mildura. In August 2010, the plaintiff ceased employment with the defendant.
5 On 16 September 2010, the plaintiff was scheduled to undergo surgery for an internal fixation with Mr Gardiner’s locum, Mr Schmidt. There was a delay in the surgery taking place on that day and the plaintiff did not proceed with the internal fixation surgery at that time.
6 Subsequently, the plaintiff went to Euston to live with her partner, where she obtained part-time employment as a cleaner. She injured her back. She recovered and has not suffered any residual impairment as a result of that work incident.
7 In about 2013, the plaintiff returned to live in Mildura and undertook a Certificate III in hairdressing at the Sunraysia Institute of TAFE. During the course, she put up with varying degrees of pain in her right foot. She commenced work in a hairdressing salon but could not continue working because of the pain and discomfort she suffered in her right foot.
8 In April 2013, as her right foot was not getting better, she attended her general practitioner, Dr Fuad at Tristar Medical Clinic, and was referred back to the Mildura Base Hospital for further x-rays, which showed that the old fracture at the base of her right 5th metatarsal had not healed.
9 On 14 May 2013, the plaintiff underwent an internal fixation performed by Mr Gardiner with a screw being inserted into the 5th metatarsal. She continued to suffer ongoing pain and restrictions of movement with her right foot.
10 On 6 August 2013, the screw was removed because of ongoing severe pain. She continued to have ongoing pain and restrictions of movement with the right foot.
11 On 10 December 2013, a repeat internal fixation and grafting was performed by Mr Gardiner. On 11 December 2013 x-rays of the internal fixation were satisfactory. The plaintiff reported significant pain at the fracture site and over the lateral aspect of her right foot and ankle.
12 On 13 May 2014, a diagnosis of Regional Pain Syndrome was made and the plaintiff was referred to the Queen Elizabeth Hospital Pain Management Clinic.
13 On 12 August 2014, an x-ray showed no real change. Mr Gardiner discussed the lack of indication for further surgery. At that time, the plaintiff indicated that she was pursuing WorkCover, which was the first record Mr Gardiner had that her injury was work related.
14 The plaintiff sought a second opinion from Dr Willard Bepete, orthopaedic surgeon, who undertook further surgery to remove the screw from the plaintiff’s foot. In November 2015, further surgery was performed to remove a washer from the right foot.
Application
15 This is a serious injury application. Leave is sought for pain and suffering only. The body function relied upon is the right foot. The plaintiff relied upon her affidavits sworn 27 April 2018 and 8 February 2019. The plaintiff was cross-examined. In addition, I called for Mr Gardiner, orthopaedic surgeon, who performed surgery on the plaintiff’s right foot. Mr Gardiner was cross-examined by counsel for the plaintiff and defendant.[1] I have not summarised the plaintiff’s affidavits or her evidence nor the evidence of Mr Gardiner; however, I will refer to the relevant evidence of the plaintiff and Mr Gardiner in my reasoning. In addition, both parties relied on medical reports and other materials which were tendered in evidence. I have read all the tendered material.
[1]Counsel for the defendant completed the examination-in-chief of Mr Gardiner, following which both Counsel had to opportunity to cross-examine Mr Gardiner
The issues
16 Counsel for the defendant informed the Court that in relation to the serious injury application, the plaintiff’s consequences following the injury do not satisfy the test under the Act of “at least very considerable” in relation to pain and suffering.
17 In addition, the plaintiff is out of time in commencing her serious injury application. Accordingly, she requires leave of the Court to commence proceedings under s23A of the Limitation of Actions Act 1958 (“the LAA”). The defendant opposes the application and relies upon the affidavits of Ing Hui Ng sworn 14 and 18 March 2019.
Credit
18 The plaintiff answered questions as best she could. She made concessions. She presented as a person who was hardworking, having worked while a student at school, and when no longer able to work as a hairdresser, her chosen career, retrained as a personal carer. In court her evidence as to the limitations she experienced with her right foot were consistent with what she reported to medical witnesses.
19 Counsel for the defendant relied on the fact that in cross-examination, the plaintiff said she could not identify the grate where she fell, yet in re-examination when shown a picture of a grate, she identified it as the grate in question. I accept that when shown a picture of the said grate, the picture prompted her memory.
20 In cross-examination, the plaintiff was asked questions by counsel for the defendant about her knowledge in relation to bringing a claim out of time. The plaintiff said her understanding, on the basis of oral advice from her lawyer at the time, was that each time she lodges a document with the Authority the “clock stops”. Counsel for the defendant submitted that there were no file notes relating to such advice before the Court. It was accepted that if she sought an impairment assessment, which she did, then she was protected. When being cross-examined on that point, counsel for the defendant put to the plaintiff that her evidence in relation to time limitation pausing each time she lodged a document was something she made up. She said “yes”. In re-examination, the plaintiff clarified that aspect of her evidence. She said she did not mean she was lying.[2] She said that she was agreeing that the letter of advice she received stated she had a six-year time limitation to issue proceedings but she had a conversation with her lawyer prior. I accept she was probably confused.
[2]Transcript (“T”) 103, Line (“L”) 30
21 There was an issue as to whether the plaintiff re-injured her foot in 2013. Counsel for the defendant relied upon the medical record of the plaintiff’s general practitioner at Tristar Medical Group. The records of Dr Khaled Fuad of 10 April 2013 and a letter of referral forwarded to the Fracture Clinic at Mildura Base Hospital both stated “right foot pain for 4 days after twisting”. The plaintiff’s evidence was that she had told Dr Fuad that she had injured her foot four years ago. Dr Fuad was not called to clarify his notes.
22 Further, the medical report of Mr Gardiner, orthopaedic surgeon, who operated on the plaintiff, dated 24 September 2014 to the Accident Compensation Conciliation Service said, on 23 April 2013, the plaintiff presented to the Fracture Clinic stating that she had fallen two weeks previously but there was no record as to where she had the fall.
23 The plaintiff’s evidence was that after the injury in 2009, she attended upon her general practitioner and was sent for an x-ray, which revealed a fracture of the 5th metatarsal. She was referred to the Fracture Clinic of the Mildura Base Hospital for management. A below knee plaster was applied. She was offered conservative or operative management as subsequent x-rays showed non-union. She was unemployed for a period and performed some odd jobs. She worked as a cleaner three days a week, four hours a day. She coped with the foot problem by limiting weight bearing. In 2013, she trained as a hairdresser working part time in a salon. The foot pain increased and standing was the significant factor. She consulted her general practitioner, who referred her to Mr Gardiner at the Fracture Clinic at the Mildura Base Hospital. The plaintiff said the she told Dr Fuad she had injured her foot four years previously. Given the state of the evidence, I requested that Mr Gardiner be called as a court witness. I allowed the plaintiff’s and defendant’s counsel to cross-examine Mr Gardiner.
24 In cross-examination, Mr Gardiner told the Court of the procedure he adopts with doctors who work under him at the hospital. He said that while doctors are instructed to obtain accurate histories, their note taking is often poor. In this case, had the general practitioner recorded the injury occurring at work, there would have been more accurate documentation. He said this was a classic case of records not being adequate. He agreed that the confusion was due to the fact that no worker’s compensation claim had been made by the plaintiff.
25 As the operating surgeon, Mr Gardiner was asked whether or not he could say whether an event occurred in April 2013 which significantly aggravated the pre-existing injury to the foot. He said that was a possibility but as there was not an enormous change in the x-ray, he could not say.
26 Mr Gardiner was asked about the bone scan performed in September 2013. He said that indicated there was a fracture with some metabolic activity going on so there might have been some slight movement from the original injury. It did not indicate a new fracture. He could not say whether or not some aggravation took place in April 2013.
27 Mr Gardiner agreed that the x-rays did not show a fresh break and were consistent with signs of chronic healing.
28 He was referred to Mr Dooley’s report of February 2019. Mr Dooley, orthopaedic surgeon, examined the plaintiff at the request of the defendant’s solicitors and was asked to offer a medical opinion as to whether he considered there was a separate injury in April 2013. Mr Gardiner disagreed with Mr Dooley’s comments in his report, in particular Mr Dooley’s assumption that the operating surgeon felt the fracture was recent and that the history of a twisting injury in early April related to this. Mr Gardiner, as the operating surgeon, said this was not the case.
29 Mr Dooley concluded that the original fracture had healed, or substantially healed, and that after the twisting episode in April 2013, a new fracture occurred. He also said it was possible the original fractured did not heal and that a twisting episode in April 2013 aggravated the situation. He said he would need to see sequential x-rays in regards to making a reasonable comment. Mr Dooley was the only medical witness to express this view. Unlike Dr Mutton and Dr Vivian, I note that Mr Dooley did not specifically question the plaintiff as to what she said as to an incident occurring in April 2013.
30 Dr Vivian, pain management specialist, and Dr Mutton, occupational specialist, were asked to examine the plaintiff and were asked to consider whether the plaintiff’s current medical condition was work related or as a result of a possible aggravation injury in April 2013 as suggested by Dr Fuad and Mr Gardiner in their reports.
31 Dr Vivian examined the plaintiff at the request of the plaintiff’s solicitor. The plaintiff told Dr Vivian that she had had not had another fall as indicated in Mr Gardiner’s notes. Dr Vivian said her condition was related to the fall at KFC in 2009.
32 Dr Mutton obtained a history from 2010 to 2013 that she had issues with pain, particularly with excessive walking and with activities such as jogging. She had difficulty with her hairdressing as she was on her feet all day and this led to increasing symptoms. Upon specific questioning of the plaintiff, Dr Mutton concluded there was no particular incident in April 2013.
33 In June 2016, Mr Polke, orthopaedic surgeon, examined the plaintiff for the purpose of providing an impairment assessment. The plaintiff provided a history of being injured in December 2009 when employed by KFC. She was treated in a plaster cast and returned to work on alternative duties for two to three months when she resigned. She worked as a cleaner for a short period. She moved back home to study hairdressing. That work involved her being on her feet when the right foot pain became more severe. Mr Polke accepted that the injury was work related.
34 In August 2016, the Medical Panel obtained a history that in 2013, the prolonged standing while hairdressing aggravated the right foot pain.
35 After considering all of the medical evidence, I accept that the plaintiff did not re-injure her foot and there was no specific incident in April 2013 as reported by Dr Fuad. I accept the plaintiff’s evidence as reported to a number of the medical witnesses that her right foot pain became more severe as a result of her being on her feet when working as a hairdresser. The plaintiff’s evidence in Court was consisted with what she reported to medical witnesses.
36 Overall I found the plaintiff was a witness of truth. Dr Mutton described the plaintiff as pleasant and co-operative, without any abnormal pain behaviours. Dr Vivian concurred with this view.
37 The only negative comment expressed about the plaintiff was that of Mr Dooley, who said the constancy and intensity of her ongoing pain and her described disability are greater than one would expect to see for her organic condition.
Medical evidence
38 The current medical evidence was expressed by Associate Professor Bruce Love, orthopaedic surgeon; Dr David Vivian, pain specialist; Mr Michael Dooley, orthopaedic surgeon, and Dr Philip Mutton, occupational physician. All accepted that the plaintiff reported a series of surgical procedures attempting to obtain union of a fracture of the 5th metatarsal base, and the current situation is that of a non-union of a fracture of the base of the 5th metatarsal.
Consequences
39 I shall now consider the consequences the plaintiff says she suffers as a result of the work-related injury.
Pain and dysfunction
40 The plaintiff complains of daily pain in her right foot. The plaintiff said that she is at her best in the morning but by lunchtime she starts to go downhill. The severity of her pain depends on how long she has been on her feet. As a result, she tries to limit the time spent on her feet. The plaintiff reported to Professor Love foot pain with an inability to stand for long periods, together with sensory disturbance on the dorsal lateral aspect of the right foot. The plaintiff reported to Dr Vivian sharp pain underneath the base of the 4th and 5th rays in the arch, which can occur when she stands on her right foot on uneven surfaces or if she hits the spot going downstairs. When the pain occurs sharply, the foot can give way. The aching in the side of the foot to the 5th toe is aggravated by longer periods of weight bearing. She suffers tingling, with pins and needles from the ankle to the toes of the lateral three rays. In some shoes, and on weight bearing, the lateral three toes can go numb, which is relieved by taking her shoes off and moving her toes.
41 The plaintiff reported constant ongoing pain over the lateral aspect of her foot to Mr Dooley. She noted altered sensation over the outer aspect of the foot and the outer three toes
42 All medical witnesses accepted the plaintiff suffered pain and that it will continue. Dr Vivian said the pain will continue, not improve, and it may get worse. If it gets worse, an opinion from a foot surgeon should be sought regarding both the pain and the neurological symptoms. He said her condition was stable.
43 Dr Mutton said the plaintiff does have residual dysfunction, her condition is stable and is not likely to resolve in the future. Mr Dooley accepted the plaintiff’s ongoing pain has an organic basis. He said that she will continue to note some intermittent pain in relation to the outer aspect of her right foot, especially with prolonged standing and prolonged impact activity. He did not expect her condition to deteriorate.
44 I accept the plaintiff suffers pain and dysfunction which she reported to all medical witnesses. In respect to dysfunction, Dr Vivian said she will have foot disability for the rest of her life. Dr Mutton agreed that she has residual dysfunction which he expected would resolve; however, I note that it is now nine years since the injury without resolution.
45 In considering the level of pain the plaintiff suffers, I am informed by the treatment the plaintiff receives.
46 The plaintiff reported to the medical witnesses her current treatment which consisted of using Deep Heat on her foot, and taking Nurofen and Panadol for her pain as required. In Court, she said she takes two Panadol per day at the end of the day. She also uses cold packs on her foot. She takes Advil as needed. She is not having any active medical treatment. She reported to Dr Mutton that she is undertaking exercises through a personal trainer.
47 I accept the plaintiff suffers pain for which she takes medication on a daily basis. The level of medication the plaintiff takes is a consequence I can take into account, which was opined by Dodds-Streeton JA in Kelso v Tatiara Meat Company Pty Ltd,[3] where her Honour said:
“The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[3][2010] VSCA 12 at paragraph [199]
48 I accept that the plaintiff suffers pain for which she takes medication on a daily basis. I accept this is a consequence in the middle of the range.
Hairdressing
49 The plaintiff’s evidence was that growing up it was her hope that she would become a hairdresser. In 2013, she completed a Certificate III in Hairdressing at the Sunraysia Institute of TAFE. She started work as a hairdresser in a salon. She found that after her shifts, which required her to stand for long periods, her foot was in extreme pain and discomfort. She was unable to continue working these shifts.
50 In mid-April 2013, because of the increased pain, she returned to the Mildura Base Hospital, underwent further x-rays and was referred to Mr Gardiner for treatment, including further surgical procedures. As a result, she continues to have restricted movement, and experiences ongoing pain in her right foot.
51 The plaintiff has not been able to continue to work as a hairdresser because standing for extended periods of time is painful and uncomfortable. The plaintiff’s evidence is that she is deeply disappointed that she cannot pursue her hairdressing career. It was her intention to work as a hairdresser for three years, then open her own business. She is unable to pursue the career of her choice.
52 The plaintiff told the medical witnesses of the difficulties she encountered as a hairdresser, namely the foot pain she encountered with prolonged standing. Dr Vivian accepted that she was incapacitated for work that involves long periods of standing, including kitchen work and hairdressing. He said she remains unfit for work that involves prolonged weight bearing, including standing and walking.
53 Professor Love said the plaintiff is incapacitated for employment, in that she cannot stand for long periods. Dr Mutton imposed restrictions of avoiding excessive standing, walking and ambulating. Mr Dooley was aware that the plaintiff’s passion for work was working as a hairdresser and that she was unable to continue that work because of soreness of her foot. As a result of the restrictions imposed by Professor Love, Dr Mutton and Dr Vivian, I accept that doctors considered that plaintiff was unfit for hairdressing work.
54 In Ellis Management Services Pty Ltd v Taylor,[4] the Court of Appeal said that the inability of a worker to engage in employment which he/she enjoyed is a matter that can be taken into account in assessing pain and suffering consequences and loss of enjoyment of life. In this case, the plaintiff gave evidence about the fact that it was her passion to work as a hairdresser. She trained as a hairdresser and attempted to work as a hairdresser. She expressed her frustration of not being able to continue with that work.
[4][2013] VSCA 326 paragraph [35]
55 I accept the plaintiff’s evidence that it was her intention to pursue a career as a hairdresser. I accept that the plaintiff cannot pursue that career, the career of her choice, due to the injury to her right foot. I accept that this is a consequence which I can take into account. I assess this consequence at the high end of the range.
Current employment – personal care attendant
56 Currently, the plaintiff is working 50 to 55 hours per week as a personal carer. She cannot work longer hours because of her foot symptoms. The plaintiff reported she could do her current job as long as she can sit for protracted periods during any one shift. She had been offered increased hours, which she had attempted, but because of the pain she experienced, she is now limited to part-time hours. Dr Vivian accepted the plaintiff is likely to have the foot disability throughout her life and it is possible further surgery might be required. He said the plaintiff is fit for her current occupation but there is a possibility that the foot pain will increasingly limit her ability to work in a weight bearing capacity in the long term. She is ideally suited to a job where weight bearing is limited to a moderate extent and she can sit at will.
57 Professor Love accepted that the plaintiff’s current employment would be restricted by the hours of work. He said the plaintiff is incapacitated for work, in that she cannot stand for long periods. Her incapacity is partial. I accept he considers the plaintiff is not fit for full-time employment now or in the foreseeable future.
58 Dr Mutton was aware that the plaintiff was employed in personal care work. He said she has a residual dysfunction and may need to avoid excessive standing, walking and ambulating and therefore will require some modified duties into the foreseeable future. She may require a reduction in full-time employment to manage her pain symptoms.
59 Mr Dooley said the plaintiff’s current employment of personal care attendant work was suitable work and he believed that she had a physical capacity to increase her working hours to work towards full-time employment; however, he noted that she will continue to have some intermittent pain of her right foot, especially with any prolonged impact activity. He did not expect her orthopaedic condition to deteriorate.
60 The plaintiff’s evidence is that she is employed on a permanent part-time basis, working 50 to 55 hours per fortnight. She prefers short shifts as she is on her feet for less time. She works a rotating roster. One week she works Monday, Wednesday, Thursday, Friday, Saturday and Sunday and the next week she works Monday, Thursday, Friday, Saturday and Sunday. She works the weekend shifts because she is paid time and a half. She can work less hours, which is good for her foot, and earn more. She wears an ankle brace at work as her lower leg remains unstable.
61 She has taken on extra work and worked five days straight; however, she called in sick for the sixth day. The plaintiff’s evidence is that if she did not suffer her injury, she would be working 78 hours per fortnight.
62 I accept that currently, the plaintiff is unable to work full-time hours. The only doctor to say the plaintiff should be able to work towards full hours was Mr Dooley. All other medical witnesses said the plaintiff could not work full time. Dr Mutton said that she had to avoid excessive standing, walking and ambulating and will require some modified duties into the foreseeable future. She may require a reduction in full-time employment to manage her pain symptoms.
63 Professor Love said the plaintiff was incapacitated for work, and that she cannot stand for long periods, her incapacity is partial. He was aware that she was working at the rate of 5.5 hours a day four days a week. He said her impairment will affect her current occupation by restricting the hours of work.
64 Dr Vivian was aware that the plaintiff works limited hours of 25 to 30 hours per week. He said she can cope with her current job because she can sit and stand and move about as she needs to. He said she is fit for her current occupation but there was a possibility that the foot pain will increase, limiting her ability to work in a weight-bearing capacity in the longer term. He said she is ideally suited to a job where weight-bearing is limited to a moderate extent and she can sit at will.
65 Counsel for the defendant submitted that the plaintiff had undertaken studies in office work which would be more suitable employment and she would be able to work full time. The plaintiff’s evidence is that she has always undertaken physical work, and does not have the practical experience nor interest to work in an office environment, despite having some basic training. I accept the plaintiff’s evidence that she has no interest in working in an office environment and lacks the practical experience. Accordingly, I accept that she cannot work full-time hours.
66 I accept that as a consequence of the injury, the plaintiff is limited in the type of employment she can undertake. The majority of the doctors said that she is limited to part-time work. I accept that as a consequence of the injury, the plaintiff is deprived of working full hours. I accept that she is currently working as a personal carer on part-time hours and that she is reliant on having flexibility to work during the day. I accept that this is a consequence which I can take into account which I assess at the middle of the range.
Exercises
67 The plaintiff said she has been trying to do more exercise. She attended a fitness program about once a week for 30 minutes. She tried to do more, but cut back because it was aggravating her foot. The program was designed to work around her foot injury. For example she does more sit ups and seated weights to take pressure off her foot. She is required to wear her ankle brace when doing her exercises.
68 The plaintiff told Dr Vivian that she does not do exercise to the extent she would like. Last year she lost 26 kilograms. She started a gym program and does upper body workouts. She wears an ankle brace when exercising. She told Dr Mutton that in the past six months she had undertaken a home exercise program under the guidance of a personal trainer. I accept that the plaintiff is restricted in the exercise that she can undertake. I accept this is a consequence which I can take into account, which I assess at the medium end of the range.
Footwear
69 The plaintiff’s evidence is that she is unable to wear high-heeled shoes and prefers to where flat shoes. The plaintiff reported this to the medical witnesses, that she is restricted in the footwear she wears. She told Dr Vivian that she was unable to wear insoled shoes, boots or high heels, Mr Dooley that she was unable to wear high-heeled shoes or high-arched shoes, and Dr Mutton that she cannot wear high heels. I accept this is a consequence I can take into account which I assess at the low to middle of the range.
Future
70 The plaintiff’s evidence is that she worries about the future and her ability to work. She also worries about how she will be when she is forty or sixty years of age given her age of twenty-eight years. I accept that this plaintiff is a young plaintiff and that I can take into account the fact that she will suffer these consequences for many years.
Sleep
71 The plaintiff’s evidence is that she continued to have problems with sleep because of her foot pain. When she has been pushing her foot, it can take her up to two or three hours to get to sleep because of the increased pain and throbbing. The plaintiff’s evidence is that she takes Panadol at the end of the day to assist with her sleep. The plaintiff reported this to some of the medical witnesses. I accept this is a consequence I can take into account; however, I accept this at the low end of the range, as there is no evidence that the plaintiff is taking sleep medication to assist with her sleep.
Static standing
72 The plaintiff’s evidence is that static standing increases her pain. She was unable to continue working as a hairdresser because of the pain she suffered when standing. The plaintiff reported this to many of the medical witnesses. The medical witnesses accepted that the plaintiff would have to avoid static standing.[5] I accept this is a consequence which I can take into account.
[5]Dr Mutton
Surgery
73 Dr Vivian was the only medical witness to address further surgery. He said there is a risk that she will require surgery in the future. I accept this is a consequence which I can take into account, which I assess at the low end of the range.
Walking
74 The plaintiff’s evidence is that she has difficulty walking long distances. After about 30 minutes she likes to sit down, otherwise she suffers the consequences by way of increased pain and disturbed sleep. Approximately eight months ago, she commenced a regular walking program of walking for 20 minutes every couple of days. She wished to improve her fitness and regain strength in her right leg. She has pulled back from this walking program as in the past it made her pain worse, with the consequence that she suffers increased pain and disturbed sleep. Dr Vivian and Dr Mutton accepted that the plaintiff cannot walk for long periods.
75 The plaintiff’s evidence was that her right foot feels unstable when walking on uneven surfaces. Her foot can give out. She prefers to lead with her stronger foot, being her left foot.
76 I accept this is a consequence which I can take into account. I assess this at the middle of the range.
Conclusion
77 I accept the plaintiff has suffered the abovementioned consequences. Those consequences are supported by the evidence of the plaintiff and the medical evidence. I accept the plaintiff had a physically active life prior to her work accident
78 I am satisfied that the plaintiff was involved in a work accident which, to this plaintiff, resulted in her experiencing symptoms of a physical nature. The consequences of her right foot injury alone have impacted upon her life as she knew it before the work accident. She has suffered for nine years and the medical evidence is that the injury is permanent. The evidence is that she can no longer engage in hairdressing work which was the career she wanted to pursue.
79 The plaintiff is aged twenty-eight. I accept that she has restrictions for the rest of her life. Based on the comments made by the Court of Appeal in Stijepic v One Force Group Aust Pty Ltd[6] where a man or woman has to put up with impairment consequences for another forty years, those consequences are more likely to be judged more seriously than the same consequences which a man or woman may have to put up with for a much shorter period of time.
[6][2009] VSCA 181
80 For the foregoing reasons, I am satisfied that the plaintiff has established that the consequences to her of her impairment can be reasonably described as being “serious”. In my experience, the consequences to the plaintiff measure up well against other serious injury applications where plaintiffs have been successful. In considering the consequences, I have not treated each consequence as equal, but, rather, attributed appropriate weight to each consequence in light of the evidence.
81 I accept that the right foot injury has consequences to the plaintiff that, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of hearing, as being “at least very considerable” and certainly “more than significant or marked”.[7] In making this assessment, I have looked at the consequences of the right foot injury alone.
[7]Humphries & Anor v Poljak [1992] 2 VR 129
82 I shall now consider the section 23A application.
The Section 23A application
83 It was accepted that if the plaintiff was granted a serious injury certificate, she would need to seek leave pursuant to s23A of the Limitation of Actions Act 1958 (Vic) for an extension of time in which to bring a common law claim for damages in respect of the injuries she alleges were suffered as a result of the workplace injury sustained in December 2009. The applicable limitation period was six years from the date of accrual of the cause of action,[8] which therefore expired in December 2016.[9]
[8]Section 5(1)(a) of the LAA
[9]Time limitation expiry with regard to time added for impairment benefit claim
84 On 12 September 2018, an Originating Motion was issued in this Court by the plaintiff’s current solicitor, seeking a serious injury certificate under s134AB of the Accident Compensation Act 1985. I was informed that the plaintiff also sought an extension to the period within which an action may be brought under s23A of the LAA.
85 The defendant opposes the application for an extension of the limitation period. In essence, the defendant relies upon the delay.
Statutory framework
86 The Court has power under s23A of the LAA to extend the limitation period if it decides that it is just and reasonable to do so,[10] having regard to all of the circumstances of the case, including the matters listed in s23A(3). The question to be decided by the Court “requires consideration of the conduct and position of the parties, including the effect of the outcome of the application on each of them”.[11]
[10]Section 23A(2)
[11]Per Booking J in Bell v SPC Ltd [1988] VR 123 at 125 to 126, cited with approval by Buchanan JA in Tsiadis v Patterson [2001] 4 VR 114 at paragraph [33]
87 Under s23A(3) of the LAA, the Court shall have regard to all the circumstances of the case, including (without derogating from the generality of foregoing), the following:
(a) The length of reasons for the delay on the part of the plaintiff;
(b) The extent to which, having regard to the delay, there 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.
Relevant legal principles
88 Limitation periods are enacted as a matter of public policy and founded on the proposition that delay produces a general deterioration in the quality of justice.[12]
[12]Per Beach JA in Marceta v Efandis [2016] VSC 265 at paragraph [11]; per J Forrest J in Sparkes v Hylemit Pty Ltd [2016] VSC 453 at paragraph [33]
89 In the High Court decision in relation to an application for extension of time of Brisbane South Regional Health Authority v Taylor[13] (“Brisbane South”), the majority determined that it is, prima facie, prejudicial to the defendant to allow the commencement of an action outside that period. McHugh J explained the rationale for limitation periods as follows:[14]
“Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Secondly, it is oppressive, even “cruel”, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.
…
Even where the cause of action relates to personal injuries,23 it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.”[15]
[13](1986) 186 CLR 541
[14](supra) at 552
[15]Supra
90 In the most recent case of Prince Alfred College Incorporated v ADC,[16] the High Court reaffirmed the significance of the two fundamental propositions established in its decision in Brisbane South. In a passage extensively footnoted to Brisbane South, the plurality recorded:
“First an applicant for an extension of time must prove the facts which enliven the discretion to grant the extension and also show good reason for exercising the discretion in his or her favour. An extension of time is not a presumptive entitlement which arises upon satisfaction of the pre-conditions that enliven the discretion. The onus of persuasion is upon the applicant for an extension of time … .
Secondly, the purpose of the legislative conferral of the discretion is to ensure a fair trial on the merits of the case.”
[16][2016] HCA 37
91 The legal principles relevant to this application which I must apply in considering the plaintiff’s application can be summarised as follows:
·The onus in establishing that it is just and reasonable to grant the plaintiff’s application is borne by the plaintiff;[17]
[17]Bell v SPC Ltd [1989] VR 170 at 174-175; Brisbane South (supra); Richards v State of Victoria & Ors [2001] VSC 52 at paragraph [11] and Delai v Western District Health Service & Anor [2009] VSC 151 at paragraph [21]
·If the defendant places evidence before the Court sufficient to lead to the conclusion that prejudice would be occasioned by granting the plaintiff an extension of time, then it is for the plaintiff to show that the defendant’s evidence does not demonstrate prejudice;[18]
[18]Cowie v State Electricity Commission of Victoria [1964] VR 788 at 793; Brisbane South (supra) at 547
·The competing considerations referred to in s23A of the Act are not to be weighed against each other, but rather the Court must synthesise the competing considerations in arriving at a conclusion that takes account of all of them, bearing in mind that the plaintiff bears the onus of persuading the Court that it is just and reasonable to extend the limitation period;[19]
[19]Bell v SPC Ltd (ibid) at paragraph [125]; Tsiadis v Patterson (supra) at 123 and Delai v Western District Health Service & Anor (supra) at paragraphs [21]-[22]
· The question to be decided by the Court “requires consideration of the conduct and position of both parties, including the effect of the outcome of the application on each of them …”;[20]
[20]Per Booking J in Bell v SPC Ltd (ibid) at paragraphs [125]-[126]; cited with approval by Buchanan JA in Tsiadis v Patterson (supra) at paragraph [33]
·The delay referred to in s23A of the Act is the delay between the accrual of the cause of action and the making of the application for an extension of time;[21]
·The Court can take into account prejudice –
§ which comes about by reason of a lapse of time involved in that period of delay;[22] and
§ which can be established by the defendant;
·An inordinate delay may be taken as evidence of prejudice;[23]
·The test of prejudice must not include whether an order extending time would make the defendant any worse off than if the proceeding had been commenced within, or at the end of the limitation period. What must be considered is that the defendant’s potential liability expired at the end of the limitation period and that the extension of time would impose a new legal liability on the defendant;[24]
·In considering the question of prejudice and whether there can be a fair trial, in Gordon v Norwegian Capricorn Line (Australia) Pty Ltd (“Gordon”),[25] Forrest J said:
“…In determining whether there is significant prejudice, what is to be considered is whether there can be a fair trial. A fair trial does not mean an ideal trial, but one that is ‘acceptably fair’ ... .”
[21]Koumorou v State of Victoria [1991] 2 VR 265 at 271; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7 at paragraph [11] and Delai v Western District Health Service & Anor (supra) at paragraph [22]
[22]Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614 at 622
[23]Tsiadis (supra) at 123-124; Delai v Western District Health Service & Anor (supra) at paragraph [23] and Brisbane South (supra) at 551
[24]Brisbane South (supra) at 554-555
[25][2007] VSC 517 at paragraph [79]
The evidence
92 In relation to the s23A application, the plaintiff relied upon the plaintiff’s affidavit sworn 8 February 2019 and an affidavit of Shaun William Colebrook, solicitor, sworn 11 February 2019.
93 The defendant relied upon the two affidavits of Ms Victoria Ing Hui Ng dated 14 March 2019 and 18 March 2019.
94 The plaintiff was injured at work in December 2009. The plaintiff did not lodge an incident report at the time but gave evidence that she reported her injury to her employer.
95 The plaintiff first sought legal advice in April 2014, when she had an appointment with Mr Tony Masterson, solicitor at Maurice Blackburn Lawyers. The plaintiff deposed that from this appointment she understood that she had six years from the date of her injury to make a claim, she was not out of time and once she lodged her WorkCover claim form, the “six-year clock” stopped. The plaintiff lodged her WorkCover Claim Form in May 2014.
96 On 14 April 2014, the plaintiff received a letter from Maurice Blackburn which outlined the following advice in relation to time limitations for a common law claim:[26]
[26]Plaintiff’s Court Book (“PCB”) 162
· There is a six-year time limitation period for bringing a common law claim for damages;
· In regard to the injury suffered on 1 January 2009, proceedings must be issued by 1 January 2014;[27]
[27]PCB 162 – The letter of advice outlined that the injury was sustained on 1 January 2009 and the six-year time limitation expired on 1 January 2014. I note that the plaintiff’s evidence in Court was that she was injured in early December 2009, therefore the relevant six-year time limitation would have expired on December 2015. The plaintiff gave evidence that the letter was incorrect in relation to the date of her injury.
· It is not enough to contact the defendant or insurer. An application for a serious injury certificate must be made or a writ must be issued.
· Leave must be sought first to obtain a serious injury certificate from either the WorkCover agent or by leave of the Court. This process can take several years to complete and instructions are required well in advance of the limitation date if you wish to proceed with a Common Law claim for damages.
97 The plaintiff lodged a WorkCover claim on 12 June 2014.
98 On 30 June 2014, the defendant’s insurer at the time, QBE, instructed LS Partners Investigators to conduct a circumstance investigation.
99 On or about 14 July 2014, LS Partners provided QBE with a circumstance investigation report. As a part of the investigation, LS Partners interviewed and obtained unsigned statements from:
(a) Mr Steven James McArdle, store manager;
(b) Ms Emma Lee Brinsmead, former assistant manager; and
(c) Ms Rachael Anne Smith-Vandermeer, payroll and HR administration manager.
100 Ms Ng deposed that there had been attempts made to obtain signed copies of the statements by LS Partners.[28]
[28]Defendant’s Court Book (“DCB”) 9
101 Ms Ng deposed that an attempt was made by LS Partners to also interview Ms Yvonne Brown, HR manager at Euston Recreational Club, but Ms Brown declined to provide a statement.[29]
[29]DCB 8
102 On 21 July 2014, the defendant rejected the plaintiff’s WorkCover claim for weekly payments and medical and like expenses.
103 On 25 July 2014, the plaintiff made a request for conciliation following the rejection of her claim. On 21 October 2014, a conciliation conference was held, and no resolution was reached.
104 On 18 February 2015, the plaintiff filed a complaint in the Magistrates’ Court which was listed to be heard on 17 August 2015. The complaint in the Magistrates’ Court settled on 18 August 2015, the plaintiff’s WorkCover claim was accepted and the defendant denied liability.[30]
[30]DCB 15
105 On 17 September 2015, the plaintiff lodged an impairment benefits claim.
106 On 22 October 2015, Maurice Blackburn Lawyers wrote to the defendant’s insurer, QBE, and requested that the plaintiff’s impairment benefit claim be suspended, as the plaintiff was to undergo further surgery on her foot on 12 November 2015.
107 On 22 April 2016, Maurice Blackburn wrote to the defendant’s insurer, CGU, requesting the suspension of the plaintiff’s impairments benefit claim be lifted. On 27 April 2016, the suspension was lifted by CGU.
108 On 25 May 2016, Maurice Blackburn provided the plaintiff with a questionnaire to complete in relation to pursuing a common law claim. The questionnaire was not before the Court and it is unclear if it was completed by the plaintiff and when it was returned to Maurice Blackburn.
109 On 14 June 2016, the defendant sold its business to RG Restaurants Pty Ltd.
110 On 5 July 2016, the defendant’s insurer, CGU, made a determination to accept liability for the plaintiff’s right foot injury and determined the plaintiff had a combined whole person impairment of 2 per cent, following an assessment by Mr Polke.
111 On 19 July 2016, the plaintiff received two letters from Maurice Blackburn:
· The first letter outlined the plaintiff’s instructions as to her most recent surgery, her pain and numbness and education. It outlined that the plaintiff has been assessed at 3 per cent whole person impairment, disentitling her from making any claim for permanent impairment, and advising that this assessment could be disputed with the Medical Panel. There was no reference to a potential Common Law claim or relevant time limitation in this letter.
· The second letter confirmed that the plaintiff’s claim had been accepted and recommended that the plaintiff dispute the whole person impairment assessment with the Medical Panel for the purposes of a claim for an impairment benefit pursuant to s98C.[31] This letter makes reference to previous advice in relation to pursuing a Common Law claim for damages and advised that to make a Common Law claim, the serious injury test in accordance with the Act must first be satisfied. The letter outlines the definition of “serious injury”. There is no reference in this letter to the six-year time limitation for pursuing a Common Law claim for damages.
[31]PCB 177
112 In August 2016, the plaintiff sought to challenge the impairment assessment. The plaintiff was examined by the Medical Panel on 30 August 2016. The Medical Panel wrote a letter to Maurice Blackburn on 13 September 2016 enclosing their opinion of the plaintiff’s impairments at 2 per cent whole person impairment.
113 The plaintiff deposed that following the Medical Panel’s decision, she contacted Maurice Blackburn and spoke to a secretary. The plaintiff enquired as to whether there is any further action she could take, and was told that there was not. The plaintiff requested an appointment and waited to hear back. The plaintiff deposed that she was of the belief that as the Medical Panel had only found a 2 per cent whole person impairment, her claim for compensation was at an end, there was no appeal or manner of having the decision changed.[32]
[32]PCB 155
114 In October 2016, the plaintiff received a letter from Maurice Blackburn outlining that Mr Masterson had left the firm and a new solicitor, Mr Paul Zaharias, would be taking over the plaintiff’s file. The plaintiff deposed that she was surprised by this as she was under the impression that her file was closed.
115 On 4 August 2017, the plaintiff received a letter from Maurice Blackburn advising of an appointment with Mr Zaharias to discuss her claim.
116 On 31 August 2017, the plaintiff attended an appointment at Maurice Blackburn. She deposed that she was advised she needed to seek a second opinion as she could bring a serious injury application regardless of the Medical Panel’s findings, but she was out of time to commence such an application.
117 The plaintiff then consulted Ryan Legal on 1 September 2017. The plaintiff deposed that she was advised the following:
· She had 30 days from receiving the Medical Panel’s opinion to petition the Court for a review of the decision, which she was out of time to complete, therefore the decision was final and binding;
· She could still bring a serious injury application regardless of the Medical Panel’s findings but she was out of time to bring such an application.
118 On 4 September 2017, the plaintiff received a letter from Maurice Blackburn[33] which advised the plaintiff that they did not recommend disputing the Medical Panel’s assessment and that she would have a realistic prospect of succeeding in a common law claim for damages. The letter outlined that in order to make a common law claim for damages, she would need to satisfy the serious injury test set out the definition of serious injury, and identified that the plaintiff was out of time and would need leave of the Court to bring a claim out of time.
[33]PCB 191-193
119 On 13 December 2017, the plaintiff’s current solicitor wrote to WorkSafe Victoria and CGU Workers Compensation, formally requesting that the LAA defence be waived.[34]
[34]PCB 235
120 On 19 December 2017, WorkSafe Victoria wrote to the plaintiff’s solicitors and advised that they were not prepared to implement their limitation waiver policy in all of the circumstances.
121 On 30 April 2018, the plaintiff’s current solicitor lodged a serious injury application with the Victorian WorkCover Authority.[35]
[35]PCB 195
122 On 14 May 2018, Ms Ng’s office wrote to the defendant requesting all documents in its possession in relation to the plaintiff, including rosters of staff who worked in December 2009 and induction records. Ms Ng deposed that she contacted Ms Smith-Vandermeer on 16 July 2018 by telephone and was informed:
· The defendant had merged with Colonel West Pty Ltd to form Retzos Group Restaurants Pty Ltd;
· Mr McArdle left employment with the defendant in or about December 2014; and
· The records including rosters and induction records were paper based in 2009 and it was likely that the documents had been destroyed.
123 The defendant rejected the plaintiff’s serious injury application on 28 August 2018.
124 On 12 September 2018, an Originating Motion was issued in this Court seeking a serious injury certificate.
125 On 18 March 2019, Ms Ng contacted Ms Smith-Vandermeer and was advised that all attempts to locate any documents relating to the plaintiff’s employment have already been provided and exchanged and that she believed that any additional documents would have been destroyed.[36]
[36]DCB 135-136
Analysis
126 Counsel for the plaintiff submitted that it would be just and reasonable to extend the limitation period in all of the circumstances of the case.
127 Counsel for the defendant submitted that the Court should not be satisfied that the plaintiff has satisfied her onus. The defendant relied upon s23A(3), and I shall consider each of those subsections in turn.
(a) The length of and reason for the delay on the part of the Plaintiff
(i) The length of the delay
128 The delay referred to in s23A of the LAA is the delay between the accrual of the cause of action and the making of the application for an extension of time. The plaintiff’s cause of action arose in December 2009, the Originating Motion was filed on 12 September 2018 and taking into account the period for which the plaintiff’s impairment benefit claim was on foot, the limitation period for the plaintiff to commence a common law claim expired in December 2016. The delay is eight years.
(ii) The reason for the delay
129 The plaintiff deposed in her affidavit of 8 February 2019 that she had sought legal advice from Maurice Blackburn in April 2014, following which she received a letter dated 14 April 2014. She deposed that she understood that she had six years from the date of her injury to make a common law claim and that as soon as she lodged a WorkCover claim form, the “six-year clock” stopped.[37]
[37]PCB 154
130 In cross-examination, the plaintiff said that she knew there was a six-year time limitation for her to bring a claim but her understanding was that this limitation paused once she put in forms.[38] She agreed that this was not in the letter sent to her by Maurice Blackburn following her initial consultation but said that this was her understanding of the oral advice following the discussion with her then solicitor.[39]
[38]T68, L3-5
[39]T68, L6-21
131 The defendant submitted that the plaintiff’s explanation for the delay is incomplete and inconsistent. Counsel for the defendant submitted:
(a) If there was a difference between what the plaintiff had been told by Maurice Blackburn and what was set out in the letter dated 14 April 2014, she would have been aware of this at the time of receiving the letter. Nor did she make any attempts to clarify this with Maurice Blackburn.[40]
[40]Defendant’s outline of submissions in respect of the application for extension of time – page 7
(b) The plaintiff’s evidence is that she understood the Medical Panel’s assessment of her impairment of 2 per cent meant her claim was over, is inconsistent with the letter of advice sent to the plaintiff on 14 April 2014, where there is a clear distinction drawn between the Medical Panel’s assessment of impairment and a possible common law claim. Counsel submitted that no explanation was given for this inconsistency.
(c) The plaintiff said that she rang Maurice Blackburn to find out if her case was over but there was no specific evidence about what she said on each occasion, who she spoke to or the response she received.
(d) There is no evidence that the plaintiff’s current solicitors have obtained her file from Maurice Blackburn or any file notes with respect to conversations she had with Maurice Blackburn.
132 The plaintiff’s evidence was that she did not understand the difference between an impairment benefit claim and a Common Law claim until she consulted her current solicitors. The plaintiff said that she was aware of the six-year time limitation but she was of the belief that when she put in forms there was a pause in the time.
133 I note that the plaintiff was advised of the six-year time limitation to bring a common law claim in the letter dated 14 April 2014. Further, Maurice Blackburn wrote to the plaintiff on 25 May 2016, providing a questionnaire to complete in relation to a Common Law claim.[41] The questionnaire was not before the Court and the letter did not refer to the relevant six-year time limitation for a Common Law claim. On 19 July 2016, the plaintiff’s solicitor wrote to the plaintiff and outlined the serious injury test for pursuing a Common Law claim.[42] This letter did not refer to the relevant six-year time limitation for a Common Law claim.
[41]PCB 172
[42]PCB 177
134 The plaintiff was advised of the six-year time limitation by the letter of 14 April 2014. Following this, the plaintiff lodged a WorkCover claim, which was rejected, she sought a conciliation conference which was unsuccessful and proceeded to file a complaint in the Magistrates’ Court when her WorkCover claim was accepted. The plaintiff then lodged an impairment benefit claim which had to be suspended for further surgery. Throughout this process, there is no evidence that the six-year time limitation was brought to the plaintiff’s attention after the first letter of 14 April 2014.
135 The plaintiff’s evidence was that her understanding after the Medical Panel assessed her impairment at 2 per cent whole person impairment, was that this was the end of her claim and that there was nothing further that she could do. There was no correspondence from Maurice Blackburn to the plaintiff before the Court which attached the Medical Panel’s Opinion of 8 September 2016.[43] There was no correspondence to the plaintiff from Mr Masterson of Maurice Blackburn before the Court which outlined what steps she could take after the Medical Panel’s assessment. The plaintiff said that she contacted Maurice Blackburn and was advised that there was nothing further she could do. She sought an appointment but did not receive a call back or an appointment. The plaintiff was not contacted again until Mr Zaharias of Maurice Blackburn took over her file in August 2017. It was not until this time that the plaintiff was advised of a Common Law claim and the relevant six-year time limitation again.
[43]PCB 185
136 I accept that the plaintiff did not understand the difference between an impairment benefit and Common Law claim. The plaintiff was not advised of the relevant time limitation for a Common Law claim again after 14 April 2014.
137 The plaintiff accepted that she did not seek clarification from her solicitors in relation to her understanding of the relevant time limitation and what was set out in the letter of 14 April 2014. I accept that she did not seek clarification as she thought she had understood what the process and time limitation was.
138 There was no evidence before me that the plaintiff’s current solicitors have obtained her file from Maurice Blackburn. I note that the file from Maurice Blackburn has not been subpoenaed.
139 I accept there has been a delay.
(b) T he extent to which, having regard to the delay, there is, or is likely to be, prejudice to the Defendant
140 Counsel for the defendant submitted that the defendant has suffered both general and specific prejudice as a result of the plaintiff’s delay. Counsel submitted:
· The defendant has been denied the opportunity to properly investigate the circumstances of the plaintiff’s injury;
· The plaintiff’s own memory of the relevant events has been affected by the effluxion of time;
· The potential witnesses, Mr McArdle and Ms Brinsmead, both assistant managers at the time, have been unwilling to cooperate with any investigation;
· The plaintiff asserted for the first time in cross-examination that she had completed an incident report form at the time of the incident. This was not deposed to in any of the affidavits sworn by the plaintiff. The defendant has conducted an investigation but there was no incident report completed or submitted, therefore the plaintiff is mistaken or the incident report has been lost.
· The plaintiff did not lodge a WorkCover claim until 2014, when the defendant started investigating the incident. The defendant’s capacity to undertake a proper investigation is severely compromised, even at that time. The investigation report of LS Partners’ notes that the equipment and area layout had apparently changed significantly since KFC Mildura vacated the premises.
· It is difficult to ascertain if there were any additional documents previously in existence and it is likely those documents have been destroyed. The defendant’s business was sold to another company in June 2016.
· There is a history recorded by the plaintiff’s general practitioner and the Fracture Clinic at the Mildura Base Hospital in April 2013 that the plaintiff was involved in a further twisting incident a number of days previously.
141 Whilst I accept that there has been a delay, I have found that the plaintiff’s evidence has been consistent with that of the medical witnesses. Accordingly, I do not consider that any effect to the plaintiff’s memory due to the effluxion of time is prejudicial to the plaintiff.
142 The plaintiff lodged a WorkCover claim on 12 June 2014, within the six-year time limitation to bring a common law claim. The defendant’s insurer at the time, QBE, instructed LS Partners to conduct an investigation on 30 June 2014. An investigation report was provided to the QBE on or about 14 July 2014. The report included three unsigned witness statements. The statement of Ms Smith-Vandermeer has stated that there is no record of an incident report being lodged. Mr McArdle stated that there was no incident reported to him and the plaintiff did not make any complaints about a sore foot. He stated that the drains have to be cleaned daily and he does not recall a drain being broken at the time. Ms Brinsmead stated:
· The drain has a metal grate at floor level and when removed it is a 30-centimetre square box down about 10 centimetres below the floor;
· The drain was being cleaned out by another staff member. The grate had been removed. The normal procedure is to place an A-frame sign over the top. The sign was not put out;
· The plaintiff was getting a piece of meat and when she was walking back she rolled her foot in the drain;
· She was not there at the time and did not see it happen but that is how the plaintiff explained it;
· She asked the plaintiff to complete an incident report form online;
· She asked the plaintiff if she was okay. The plaintiff said she would fill out an incident report but this did not happen;
· A few weeks later the plaintiff had a few days off and said she had a sore foot and was going to the doctor.
143 Ms Ng contacted Ms Smith-Vandermeer on 14 May 2018 and requested that the plaintiff’s induction records and roster of the staff who worked in December 2009 be provided. Ms Smith-Vandermeer advised that a lot of the documents such as rosters and induction records were paper based in 2009 and it was likely the documents had been destroyed. Ms Ng deposed that she contacted Ms Smith-Vandermeer again on 18 March 2019 and was informed that the employer has made all attempts to locate any documents relating to the plaintiff’s employment with the defendant (other than those which have been provided), and she believes that the documents would have been destroyed.[44]
[44]DCB 135-136
144 Given the defendant promptly instructed an investigation to be conducted, if there was any further documentation, including any incident report which was available, it would have been provided in 2014 when LS Partners was engaged. I note that the employer has advised that all documents in relation to the plaintiff’s employment were provided in 2014 and any records such as rosters and induction reports were paper based and would have been destroyed when the defendant merged it business. The defendant was provided the investigation report, including the unsigned witness statements. There is no evidence that there were other documents which were not provided in 2014. Further, it is unclear when the defendant would have destroyed their records and documents.
145 I accept that the layout of the defendant’s premises had changed by 2014; however, the defendant was still able to obtain photographs of the drain when conducting their investigations.
146 On 16 July 2018, Ms Ng emailed Ms Brinsmead at her last known email address requesting she contact Ms Ng’s office. On 7 August 2018, Ms Ng attempted to contact Ms Brinsmead at her last known telephone number and left a voicemail message. On 31 January 2019, Ms Ng attempted to contact a person by the name of Emma Brinsmead residing in Mildura on Facebook and received no response.
147 On 6 February 2019, Ms Ng called Mr McArdle at his last known telephone number. Ms Ng deposed that he:
· recalled being approached by an investigator man years ago about a claim lodged by the plaintiff;
· pointed out that the incident took place many years ago;
· recalled being provided with a written statement and was unwilling to sign the statement as he did not agree with the content of the statement;
· declined to clarify which part of the statement he disagreed with;
· did not wish to participate with any further discussion;
· would not advise where he now resides and said he does not live in Mildura.
148 On 6 February 2019, Ms Ng instructed LS Partners to locate Ms Brinsmead, obtain her contact details and ascertain if she recalled the incident. LS Partners obtained contact details for Ms Brinsmead and called her current workplace on 22 February 2019 at 8.17am, and left a message for her to contact LS Partners. At 8.44am, another call was made to Ms Brinsmead’s workplace and a message was left with another staff member. At 9.01am, a call was made to Ms Brinsmead’s mobile telephone and a message left. At 9.13am, Ms Brinsmead called LS Partners and advised:
· She could not recall the incident;
· She agreed to have her original statement emailed to her;
· She could not recall who the employee who removed the drain cover was;
· She agreed to review her previous statement and call back;
· She confirmed her mobile number, email address and declined to provide her new address.
149 Ms Brinsmead emailed LS Partners on 24 February 2019,stating:[45]
“After re-reading the attached, I don’t remember anything else, and I do not feel confident to give any other information regarding the incident. I do not recall enough and do not wish to be involved in this matter further.”
[45]DCB 24
150 LS Partners emailed Ms Brinsmead again, enquiring if she recalled who the staff member who removed the drain cover was. She replied:
“No sorry, not at all … .”
151 Ms Ng deposed that LS Partners believe that Ms Brinsmead resides in the Mildura region but her address is unknown.
152 There is no evidence before me to suggest that there has been any electoral searches conducted to obtain the addresses of Mr McArdle or Ms Brinsmead.
153 Further I note that the defendant has obtained the handwritten notes and recordings taken during the investigation conducted by LS Partners.
154 I accept that the plaintiff was aware her injury was work related and did not lodge a WorkCover claim until 2014 following legal advice. The defendant was able to conduct an investigation where statements were obtained, pictures were taken of the area, although the premises had changed, and had the opportunity to obtain the documents available at the time.
155 Further, if the defendant required the witnesses to provide further information or details, they can subpoena them to attend Court.
156 In relation to the history recorded by the plaintiff’s general practitioner and the Fracture Clinic at the Mildura Base Hospital in 2013 that the plaintiff was involved in a further twisting incident a number of days previously, I rely upon the opinion of Mr Gardiner that there was not an enormous change in the x-ray. He said that the bone scan of September 2013 indicated there was a fracture with some metabolic activity going on so there might have been some slight movement from the original injury. It did not indicate a new fracture. He could not say whether or not some aggravation took place in April 2013.
157 For the above reasons, I do not consider that the delay is likely to be prejudicial to the defendant.
(c) Steps taken by the Defendant to make the Plaintiff aware of relevant matters
158 An investigation report was commissioned by the defendant in 2014, at the time of the plaintiff making her claim for compensation. The plaintiff’s evidence was that she had not seen the report or its attachments until 2019. Counsel for the defendant submitted that there was no reason to accept that it was not in the possession of her former solicitors.
159 There was no evidence before the court that the defendant had forwarded the investigation report to the plaintiff’s previous solicitors or that the plaintiff had received any correspondence from her previous solicitors relating to the investigation report. The plaintiff’s file from Maurice Blackburn was not before the Court, nor was it subpoenaed. I accept the plaintiff’s evidence that she did not see the report or its attachments until 2019.
(d) Duration of disability
160 Counsel for the defendant submitted that the plaintiff’s evidence is that her disability has been apparent from soon after the incident, and is ongoing.
161 The plaintiff has had ongoing treatment and her medical records, as well as reports, have been made available to the defendant.
(e) Promptness and reasonableness of the Plaintiff’s actions
162 The plaintiff sought medical attention soon after the incident when her condition did not improve. She had ongoing treatment and surgeries without any success.
163 Whilst the plaintiff had discussed the injury being work related with her general practitioner soon after the incident, the plaintiff only sought legal advice in 2014. I accept that she acted promptly to lodge a WorkCover claim in May 2014 after she received legal advice.
164 I accept that the plaintiff did not understand the difference between the Medical Panel’s decision pertaining to her impairment benefit claim and a Common Law claim when she first sought legal advice. The plaintiff sought further legal advice from her current solicitors in September 2017. She said that she did not understand the difference between an impairment benefit claim and Common Law claim until this time. I accept that she acted promptly to bring a Common Law claim after consulting her current solicitors.
165 Accordingly, I accept that the plaintiff has acted promptly to lodge a WorkCover claim after she was given legal advice in 2014 and when she was advised to seek a second opinion in 2017.
(f) Steps taken by the Plaintiff to obtain relevant advice
166 Counsel for the defendant submitted that the plaintiff had ongoing medical advice from late 2009 and legal advice from April 2014, where she was given advice about the relevant limitation period.
167 The plaintiff sought legal advice from Maurice Blackburn in April 2014, when she was well within time to pursue a Common Law claim. I have accepted that she did not understand the difference between an impairment benefit claim and Common Law claim. I also note that whilst her previous solicitors provided initial advice about the applicable six-year time limitation, the plaintiff thought that she did not have any time limitation issues as she had started lodging her forms and impairment benefit with the defendant. Further, the plaintiff’s previous solicitors did not provide any advice about the applicable time limitation throughout the plaintiff’s impairment benefit claim and she was only advised of the applicable time limitation for the second time in August 2017.
Any potential claim the Plaintiff would have against her former solicitors
168 Counsel for the defendant submitted that the possibility of any action in negligence the plaintiff may have against her former solicitors is a factor which may be relevant to the Court’s exercise of discretion.
169 The Court is required to have regard to have all of the circumstances. In Tsiadis v Patterson,[46] it was observed:
“The relevance of a cause of action against a negligent solicitor has arisen in various contexts: extension of a period of limitation, dismissal of an action for want of prosecution and renewal of a stale writ. In those cases in which the nettle of a plaintiff’s ability to successfully sue his solicitor has been grasped, there has been a divergence of opinion. Some judges have regarded the ability of the plaintiff to sue a solicitor as irrelevant, while others have taken it into account.
In my opinion it is appropriate in determining an application pursuant to s.23A of the Act to have regard to the ability of an applicant to recover damages from a former solicitor whose default has made the application necessary. The existence of a cause of action against a solicitor may enable the respondent to recover compensation partly as a consequence of the original wrongdoing. That may not be sufficient. An insurance policy availing the wronged person could have a like effect, and yet I do not think such a benefit should be taken into account in the exercise of the discretion created by s.23A of the Act. In my view the additional element which renders the availability of a cause of action against a solicitor relevant to the exercise of the discretion is that the cause of action arises from the barring of the right of action in respect of which an extension of time is sought. The Court is required by the section to have regard to all the circumstances of the case. The prospect of recovering damages from a solicitor who is responsible for the delay in instituting proceedings is a circumstance of the case, and in my view is one that is relevant to the exercise of the Court’s discretion. An applicant with the ability to recover compensation from a solicitor responsible for allowing the limitation period to expire is not relevantly in the same position as an applicant who has no such prospect.
The weight to be given to the availability of a cause of action against a solicitor will depend upon the circumstances of each case. The liability of a solicitor is not to be equated with that of the original wrongdoer, and accordingly I do not think it is correct to conclude that an applicant with a good prospect of successfully suing his solicitor will suffer no prejudice if his application is refused. The liability of the solicitor will be determined not only by the likelihood of establishing liability on the part of the original wrongdoer, but also by the terms of the solicitor’s retainer, the instructions given by the client from time to time and by the manner in which the solicitor’s work has been performed. If the plaintiff is successful in an action against the solicitor, the damages to be awarded are not based upon an assessment of the losses, pain and suffering caused by the injury sustained by the plaintiff, but are commensurate with the value of the lost chance to recover damages from the original tortfeasor. Proceedings against the solicitor will be more complex and expensive than proceedings against the original wrongdoer. Usually the likelihood that the applicant will succeed in an action against his or her solicitor cannot be known with any precision when an application under s.23A of the Act is decided. In the present case it appears that Turner was in breach of the obligations which he owed to the respondent, but that view is one based upon hearing only the respondent’s version of her engagement of Turner and the events of the succeeding years, for of course no evidence was led or submissions made on behalf of the solicitor. The matters referred to by Smith, J. in Repco Corporation Ltd. v. Scardamaglia should not lead to a plaintiff’s potential cause of action against a negligent solicitor being completely ignored, but rather affect the weight to be given to the availability of the cause of action.
In considering the plaintiff’s application, I am required to consider whether the plaintiff’s conduct is attributable to the delay and whether this delay causes prejudice to the plaintiff. A relevant factor in assessing the plaintiff’s conduct is the legal advice the plaintiff has received.”
[46]Supra
170 I accept that the Court is required to have regard to all of the circumstances of a case and the prospect of recovering damages from a solicitor who is responsible for the delay is a relevant factor in the Court exercising their discretion; however, as the Court of Appeal observed in Tsiadis v Patterson,[47] the weight to be given to the availability of a cause of action against a solicitor will depend upon the circumstances of the case.
[47]Supra
171 In this case, the plaintiff’s previous solicitor’s file was not before the Court and only some of the correspondence to the plaintiff was available. In the circumstances where there is insufficient information to assess the role and conduct of the plaintiff’s previous solicitor in the delay of this proceeding, I do not take into account any potential claim the plaintiff would have against her former solicitors.
Conclusion
172 I accept that the plaintiff did not understand the difference between an impairment benefit claim and Common Law claim for damages. I accept that the plaintiff was advised of the relevant six-year time limitation for a Common Law claim when she first sought legal advice in April 2014. I note that she was not advised of the time limitation again until after the period had expired.
173 I take into account that the plaintiff was advised on many aspects of WorkCover, including lodging a claim, entitlements under an accepted claim, conciliation conference, complaint in the Magistrates’ Court, an impairment benefit claim and a Common Law claim for damages. I also take into account that the plaintiff was young and inexperienced when she was injured and subjected to the WorkCover process.
174 What is in issue is whether there is significant prejudice to the defendant and whether an acceptably fair trial can be had if the plaintiff is granted leave to bring her claim for Common Law damages out of time.[48] However, as Dixon J said in Holcombe v Hunt,[49] the Court is required to synthesise the material considerations when determining whether it is reasonable to extend the period of time.
[48]Gordon at paragraph [79]
[49][2018] VSC 55 at paragraph [42]
175 The defendant engaged LS Partners to conduct an investigation in relation to the circumstances of the plaintiff’s injury in 2014. I do not accept the submission that the defendant was not able to conduct a proper investigation because the claim was lodged in 2014 and this proceeding brought out of time. The plaintiff lodged her WorkCover claim promptly after she was given legal advice. The defendant was able to inspect the premises which had changed but was still able to obtain pictures of the drain. Further, there was no evidence before me that the defendant had requested any plans of how the premises had changed or how significantly. I also note that the investigation included obtaining three witness statements. These statements were not signed; however, the defendant did not make any attempts to obtain signed statements until 2019.[50]
[50]DCB 9
176 Further, I take the view that any documents which were available would have been obtained by LS Partners in 2014 when the investigation was conducted, which was before the business had merged with Colonel West Pty Ltd. I take into account that Ms Smith-Vandermeer told Ms Ng that she believes any additional documents would have been destroyed.[51] There is no evidence that there were additional documents which were not provided in 2014.
[51]DCB 136
177 I accept that the plaintiff acted promptly once she had legal advice. It was her understanding that her claim was at an end once she was made aware of the Medical Panel decision of a 2 per cent whole person impairment. She asked for an appointment with Maurice Blackburn. The plaintiff was subsequently advised that a new solicitor would be working on her file, which she said she thought was surprising, as she thought her file was closed. The plaintiff was advised of an appointment to attend Maurice Blackburn to discuss her claim, which she attended on 31 August 2017. This appointment was over eleven months after she was advised of the Medical Panel’s decision. The plaintiff said that she was advised to seek a second opinion in relation to a Common Law claim. Once she was advised to seek a second opinion and advised that she could also pursue a Common Law claim regardless of the Medical Panel’s decision, she acted promptly and sought advice from her current solicitors the next day.
178 I have outlined that I do not take into account any claim the plaintiff may have against her former solicitors.
179 Taking into account all of this material, I am satisfied that if the limitation period is extended, the defendant will receive a fair trial.
180 Synthesising all of the materials required to be taken into account by s23A of the LAA, I formed the view that it is just and reasonable to extend the period of limitation applicable to the cause of action upon which the plaintiff relied for bringing her claim against the defendant.
181 I will hear the parties on costs.
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