Edwards v State of Tasmania
[2000] TASSC 76
•26 June 2000
[2000] TASSC 76
CITATION: Edwards v State of Tasmania [2000] TASSC 76
PARTIES: EDWARDS, Julian
v
STATE OF TASMANIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 556/1999
DELIVERED ON: 26 June 2000
DELIVERED AT: Hobart
HEARING DATES: 21 June 2000
JUDGMENT OF: Underwood J
CATCHWORDS:
Limitation of Actions - Extension of time - Explanation for delay - Exercise of discretion.
Workers Rehabilitation and Compensation Act 1988 (Tas), s135(2).
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, applied.
Aust Dig Limitation of Actions [55]
REPRESENTATION:
Counsel:
Appellant: C M Schokman
Respondent: C E Kelly
Solicitors:
Appellant: Piggott Wood & Baker
Respondent: Director of Public Prosecutions
Judgment Number: [2000] TASSC 76
Number of Paragraphs: 26
Serial No 76/2000
File No 556/1999
JULIAN EDWARDS v STATE OF TASMANIA
REASONS FOR JUDGMENT UNDERWOOD J
26 June 2000
This is an appeal from an order of the Master dismissing an application to extend the time within which proceedings may be commenced against the respondent to recover damages for personal injuries sustained by the appellant. The authority for making the order sought is the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s135(2).
The principles upon which this appeal is to be determined are well settled. See Evans v Bartlam [1937] AC 473 at 478; In re K R Wood & Co [1962] Tas SR 227; Butler v EZ Co of Aust Ltd [1975] Tas SR 9. The appeal is in the nature of a rehearing and not in the nature of an appeal in the strict sense. Thus, as the order appealed from is the result of an exercise of discretion by the Master, I am required to exercise my discretion afresh. However, as the Master has heard and seen witnesses, due respect to the advantage thereby afforded him, is to be borne in mind. Although there is a full right to admit further evidence if the justice of the case requires it (Sheedy v Curtain 37/1977), counsel were agreed that I should determine the appeal upon the material before the Master, namely:
· an affidavit of the appellant;
· an affidavit of the appellant's present solicitor;
· a transcript of the oral evidence of the appellant;
· a transcript of the oral evidence of the appellant's former solicitor;
· the former solicitor's file.
The appellant deposed that he qualified as a trained enrolled nurse in 1982 and that on 18 July 1993, he was working as such at St John's Park Hospital. The affidavit material discloses that the appellant's employer at that time was "the Crown" and I infer from that and the identity of the respondent, that the appellant was employed pursuant to the provisions of the Tasmanian State Service Act 1984.
The appellant deposed that on 18 July 1993, he was required to assist in the transfer of a deceased person. The body was placed on a wheeled trolley. As the appellant was holding the trolley, it collapsed. He immediately felt some discomfort in his right shoulder which increased the next day. In addition to the discomfort in the right shoulder, the appellant deposed that he "felt a tearing sensation in both groins at the time of the accident".
The appellant was treated for a dislocated shoulder. His claim for compensation was accepted. He was off work for about six weeks and then returned to light duties. Two to three months after the accident, he noticed lumps in his groins, pain and discomfort. Bilateral inguinal herniae were diagnosed in early 1994. These herniae were surgically repaired and after some post operative complications, the appellant made a full recovery from the surgical procedure. He returned to work.
The appellant did not seek legal advice with respect to the injury sustained in July 1993, nor the subsequent herniae. He had no reason to do so. His employer's workers compensation insurer, MMI Insurance Group, made weekly payments during the period he was unable to work and paid for all his hospital and medical treatment.
The appellant continued to work for the respondent without incident for about three years. However, in about July or August 1997, four years after the incident involving the trolley, the appellant noticed a recurrence of pain in the groin. He reported it to the respondent's insurer. He consulted his surgeon. His surgeon advised that he had suffered a recurrence of the herniae. According to a proof of evidence of the surgeon, once a hernia has been repaired, there is an eight to ten per cent likelihood of a further recurrence.
At first, the respondent's insurer agreed to pay for the costs of the further repair operation and, presumably, make weekly payments during the period off work. However, the insurer became aware of some material that suggested that the appellant had suffered from herniae prior to July 1993. The appellant denied that this was the case. The insurer determined not to accept the claim. The scheduled surgical repair procedure was delayed. There was discussion between the insurer and the appellant which concluded with the insurer making the appellant an offer by letter dated 22 December 1997. These were the terms of the offer:
· the insurer would pay the appellant $2,500;
· in return, the appellant was to:
(a)release the respondent from all liability, both under the Act or at common law, with respect to any injury or disease that he may have suffered during the course of his employment with the respondent;
(b)resign or retire from his employment; and
(c)keep the terms of the agreement secret.
There was no material before me to indicate whether or not the insurer had the respondent's authority to make that offer, or if it did have a general authority to make the offer, whether the respondent knew of its precise terms. On the face of it, the offer appears to be totally unreasonable. Whilst the amount of money might have been appropriate, to provide that it would only be payable if the respondent gave up his job, released the respondent from all liability in respect of any claims he might have against his employer and, keep the whole business secret, prima facie seems to be oppressive. Not surprisingly, the appellant's hitherto satisfaction with the manner in which the insurer had treated him turned to dissatisfaction. On 8 January 1998, he consulted his former solicitor, Mrs Surinder Mahindroo. With the assistance of Mrs Mahindroo, the appellant applied for legal aid.
In his oral evidence, it is clear that at the time he consulted Mrs Mahindroo, the appellant did not know what his rights were with respect to the disability from which he was then suffering. He instructed Mrs Mahindroo to pursue his claim. He clearly did not then understand the difference between a claim for damages at common law and a claim for payments under the Act. Indeed, when asked in cross-examination what claim he was bringing he answered "workers' compensation." Then it was put to him that he was not intending to bring an action in negligence and he answered, "what's the difference between a negligence and a workers compensation?" He said that Mrs Mahindroo told him that he had a good case and she would get the information together.
On 13 January 1998, Mrs Mahindroo wrote to the respondent's insurer and advised that the appellant would not accept the offer that had been made and that she was in the process of obtaining some medical information. The insurer responded by advising that liability was not accepted. Mrs Mahindroo then wrote to the respondent's insurer on 13 March 1998, advising, "we are instructed to institute legal proceedings under common law in this matter". The insurer advised Mrs Mahindroo that the Director of Public Prosecutions would act in the matter. Thus, within about six months of the recurrence of the herniae, the respondent's agent was notified of an intention to make a common law claim for damages.
Mrs Mahindroo wrote two letters to the appellant, but mis-spelt his address. He said he did not receive them. On 26 May 1998, Mrs Mahindroo wrote to the Director of Public Prosecutions, advising that she was in the process of obtaining a medical report and inquired as to the respondent's "attitude to the issue of liability in this matter". There was no immediate response from the Office of the Director of Public Prosecutions. Mrs Mahindroo again wrote to the appellant. Again, the address was mis-spelt. Finally, in July 1998, Mr Foulds of the Office of the Director of Public Prosecutions advised Mrs Mahindroo that he was obtaining instructions. Mrs Mahindroo made an appointment for the appellant to see his surgeon. She advised the appellant of that appointment. This letter was correctly addressed and was received by the appellant.
In his evidence, the appellant said that late in 1998 Mrs Mahindroo said to him on the telephone that she was going to "put a writ form to the courts or something" [sic]. No writ was filed. Thereafter, very little was done to progress the matter. The appellant said that "I was leaving Mrs Mahindroo to everything in her trusted care" [sic]. In 1999, the Legal Aid Commission withdrew funding for all civil matters and Mrs Mahindroo ceased to act for the respondent.
The appellant said in his evidence that Mrs Mahindroo did not advise him of the existence of any time limits for the commencement of proceedings, nor did she discuss with him the distinction between proceedings under the Act and proceedings at common law. There is no reason to doubt the appellant's evidence with respect to that. Although Mrs Mahindroo denied that she had discussed the issue of a writ with the appellant, his evidence of his dealings with her was not otherwise contradicted by her evidence.
In late June or early July 1999, very soon after Mrs Mahindroo advised the appellant that she could no longer act for him, the appellant consulted his present solicitor and, for the first time, ascertained the existence of time limits. He instructed his present solicitor to commence proceedings by the issue of a writ. The writ was issued on 15 July 1999, three days before the appellant's cause of action was totally barred.
The appellant's present solicitor communicated with the respondent's insurer and learned that there was now a new insurance company. Over the next five or six months, she wrote to, had discussions with, and sent a copy of the sealed writ to a solicitor in the Office of the Director of Public Prosecutions and sought to obtain an admission of liability. However, by 1 February 2000, no such admission had been forthcoming and the application for an extension of time was filed.
In his reasons for judgment, the learned Master found at par10:
"I accept that the plaintiff was unaware of time limits and hence any urgency after he first saw a solicitor in January 1998. I accept also that he believed that his claim was being properly progressed on his behalf by his solicitor between the time he first saw her in January 1998 and when she ceased to act in April 1999."
No criticism was made of those findings of fact which are in accordance with the evidence.
In proceedings before the Master and on the appeal, counsel for the respondent did not suggest that the appellant did not have an arguable case. The learned Master found that there was an arguable case for damages for negligence as claimed in the endorsement on the writ.
With respect to the issue of prejudice, the learned Master cited the well-known passage from the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551 and following. There is no need to set it out again. There was no evidence of any specific prejudice. The incident with the trolley in 1993 was the subject of a workers compensation claim. Accordingly, the respondent's agent has been aware of the circumstances of that accident since shortly after it occurred and, inferentially, the possibility that it might give rise to a claim for damages at common law.
The learned Master concluded at par15:
"In this case, the period of delay has been extremely lengthy, the writ issuing just three days inside the six year final cut-off point. The defendant was not notified of the intention to issue common law proceedings until the letter of 13 March 1998, referred to above. That was almost five years after the cause of action had arisen. Having regard to the very lengthy period of delay; my finding that the plaintiff is not without blame in respect of the delay up until January 1998 when he first saw a solicitor; the policy of the legislation and the possibility that some evidence may have disappeared without anybody knowing that it ever existed, I am not persuaded that the justice of the case requires the extension." [Emphasis added]
I find myself in agreement with that passage, save and except for the part which has been italicised. The reference to the appellant being not without blame arises out of a finding earlier made by the learned Master. The learned Master noted that it was not until about 4½ years after the incident with the trolley that the appellant took any steps to obtain advice from a solicitor or, apparently, anybody else with respect to any legal entitlements. The Master accepted the appellant's evidence that during that time he was unaware of any entitlement to claim damages for pain and suffering and unaware of any time limits. The learned Master then said at par12:
"His ignorance as to these matters is entirely due to him not seeking any such advice. I do not consider the plaintiff to be without fault in respect of the failure to take proceedings within the prescribed three year limitation period."
Whilst it is true that the appellant's ignorance was entirely due to him not seeking advice, I respectfully disagree with the learned Master that such failure was in any way blameworthy. From the appellant's point of view, there was no reason for him to seek legal advice after his recovery following the post-operative complications in 1993 and his return to work, until the recurrence 4½ years later. During that period of 4½ years, the appellant no doubt believed that he had made a complete and permanent recovery from the injuries he suffered in 1993. He deposed that he did not seek legal advice because the insurer paid for the treatment he needed and his healing appeared complete. He said, "I was happy with the way in which the insurer had dealt with me".
In these circumstances, this case is akin to one in which no damage is suffered until 4½ years have elapsed after the occurrence of the tortious act or omission. The appellant acted very promptly and properly after being advised that the insurer was no longer going to meet the costs associated with the surgical repair of his herniae. No blame can be attached to him for the failure of his former solicitor to give him competent advice.
It seems to me that these circumstances, together with the facts that:
· the relevant act was reported to the respondent as soon as practical after its occurrence (the Act, s32(1)(a));
· within five years of the occurrence of the relevant act and at the time the appellant was suffering from a disability, the respondent's agent was notified by letter that there was to be a common law claim;
· it has not been suggested that any specific evidence has been lost;
· the respondent did not take advantage of the provisions of the Act, s136(1) requiring the respondent to commence proceedings to recover damages within the period therein specified;
"show that [the appellant's] case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question", per McHugh J, Brisbane South Regional Health Authority v Taylor (supra) at 554. The appellant has made out a case demonstrating that "the justice of the case" requires that an extension of time be granted.
The appeal is allowed. The order of the Master dismissing the application for an extension of time is quashed. In lieu thereof, it is ordered that the time limited by the Act, s135(1) within which the appellant must commence proceedings against the respondent, be extended to 15 July 2000.
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