Edwards v State of Tasmania

[2000] TASSC 31

[2000] TASSC 31

CITATION:                 Edwards v State of Tasmania [2000] TASSC 31

PARTIES:  EDWARDS, Julian
  v
  STATE OF TASMANIA

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Original
FILE NO/S:  556/1999
DELIVERED ON:  7 April 2000
DELIVERED AT:  Hobart
HEARING DATES:  13 March, 5 April 2000
JUDGMENT OF:  The Master

CATCHWORDS:

Limitations of Actions - Extension of time - Explanation for delay - Exercise of discretion.
Workers Rehabilitation and Compensation Act1988 (Tas), s135.
Knight v Smith [1975] Tas SR 83; Soul v Soul 23/1982; Marr v Green 3/1993; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, considered.
Aust Dig Limitations of Actions [55]

REPRESENTATION:

Counsel:
             Applicant:  C M Schokman
             Respondent:  C E Kelly
Solicitors:
             Applicant:  Piggott Wood & Baker
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2000] TASSC 31
Number of Paragraphs:  16

Serial No 31/2000
File No 556/1999

JULIAN EDWARDS v STATE OF TASMANIA

REASONS FOR JUDGMENT  THE MASTER

7 April 2000

1. By an application filed 31 January 2000, the plaintiff seeks an extension of time pursuant to the Workers Rehabilitation and Compensation Act 1988, s135(2) and the Limitation Act 1974, s5(3) for the commencement of proceedings for damages for personal injuries suffered by the plaintiff on or about 18 July 1993. A writ issued on 15 July 1999.

1. The plaintiff alleges that on 18 July 1993, he was wheeling a trolley carrying a deceased person in the course of his duties as a nurse at St John's Park Hospital.  The trolley collapsed and the plaintiff suffered an injury to his right shoulder which caused him to be absent from work for about two weeks and thereafter only fit for light duties for about the next six weeks.

1. Although at the time of the incident and shortly thereafter, it did not cause him any significant trouble, the plaintiff says that at the time of the trolley collapse he "felt a tearing sensation in both groins".  Several weeks later, lumps appeared in the groin area with associated pain and discomfort.  Large bilateral herniae were diagnosed and surgically repaired on 14 March 1994.  Shortly after discharge, he developed post-operative wound infection leading to abscesses to both wounds.  He was re-admitted to hospital and (according to a report included in documents tendered by the plaintiff from Dr Gomes) the abscesses were drained with the wounds left open to heal.  He was discharged from hospital some three or four weeks later.  He did not return to work, however, until about October 1994.  The plaintiff said in his affidavit:

"My shoulder healed satisfactorily and after some complications with my recovery from the hernia repair operation the groins also healed. I was happy with the way in which the insurer had dealt with me."

1. In about the middle of 1997, the plaintiff suffered a recurrence of the hernia in his right groin.  Workers compensation payments were refused as the workers compensation claim's agent for the defendant, MMI Insurance Group (presumably the organisation which the plaintiff referred to as "the insurer") held correspondence from a general medical practitioner stating that the hernia which had recurred pre-existed the 1993 trolley incident.  The appellant went to discuss the matter with MMI and was shown the letter from the general practitioner.  In his affidavit, the plaintiff has said that prior to the trolley incident, he had not suffered any problem with his groin and that he has no recollection of ever telling his general practitioner, or any other medical practitioner, that he had previous problems with the hernia.

1. By letter dated 22 December 1997, MMI wrote to the appellant offering to pay him a sum of money in exchange for a deed releasing and indemnifying his employer in respect of all injuries which may have been suffered in the course of employment.  Following receipt of this letter, the plaintiff sought legal advice for the first time by consulting a solicitor on 8 January 1998.  He provided the solicitor with a detailed history of the incident and the sequelae described above.  The plaintiff said in evidence that in 1998 his solicitor told him that she would issue a writ and that he responded by saying "good".

1. On 13 March 1998, the plaintiff's solicitor wrote to MMI and said, in part:

"We are instructed to institute legal proceedings under common law in this matter.  Kindly advise us as to the name and address of the solicitors, if any, for the service of documents in these legal proceedings."

1. The plaintiff's solicitor sent several letters to him between March and July 1998, each of which was wrongly addressed and which the plaintiff said he did not receive.  He did, however, receive a letter from the solicitor dated 11 August 1998 advising him that an appointment had been made for him to see a medical practitioner and another letter dated 11 September 1998, which included the following:

"The doctor does concede to the insurance company, in his letter (copy enclosed), that the current recurrence was related to the injury in 1993.  On the basis of this letter, we have a strong case to argue."

1. In par7 of his affidavit sworn 11 February 2000, which was read into evidence, the plaintiff said:

"At no time was I advised that there was a time limit in which I could make a claim for compensation in relation to my injuries.  Time limits were not discussed at all.  She did advise me to commence proceedings and I told her that I wanted to, that I hadn't had any interest in doing so before the recurrence but that I wanted to proceed because I thought that the insurer should have paid for that treatment.  Throughout this time I thought that [my solicitor] was progressing the claim.  I would respond to her contacts with me but not initiate contact because I had confidence in her work."

1. In April 1999, the plaintiff's solicitor ceased to act for him and the file was transferred to his current solicitors.  It was then noted that no proceedings had in fact been commenced and the writ issued in July 1999.  The plaintiff said in his affidavit that he had not been involved in Supreme Court matters previously and that it was not until he consulted his current solicitors that he learned that a time limit applied to his claim.

1. 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.

1. In Knight v Smith [1975] Tas SR 83 at 92, Neasey J said:

"The judge has to consider the explanation for delay.  The delay may be due or partly due to the solicitor's default.  If it is, the degree to which it is just and reasonable to hold the litigant personally responsible, and the extent to which such responsibility if any should affect the ultimate question whether a positive case for extending time has been made out, must be carefully considered and weighed along with all other relevant circumstances."

In Soul v Soul 23/1982, Cox J (as he then was) said of the circumstances of that case:

"This is not a case where a solicitor was consulted and did not advise her of the time limit.  Had that been the case, a false confidence might perhaps have been induced in her, as he had not alerted her to any special urgency …".

Similarly in Marr v Green 3/1993, Green CJ held that although a solicitor's failure to take proceedings does not totally excuse the plaintiff, "it is not of negligible weight".  I do not regard the plaintiff as being blameworthy to any significant extent so far as the delay between January 1998 and the middle of 1999 is concerned.

1. The plaintiff, however, between the time of the incident in July 1993 and the time he received the letter, referred to earlier, from MMI in December 1997, took no steps to obtain legal advice.  He had suffered injuries which required surgery and involved post-operative complications and a lengthy period away from work.  Up until the recurrence of the hernia in mid-1997, he had been "happy" with the way in which the matter had been handled by his employer.  It was not until about 4½ years after the incident that he took any steps at all to obtain advice from a solicitor, or apparently anybody else, as to any legal entitlements which may have resulted from the 1993 incident.  The plaintiff says that during this period, he was unaware of a possible entitlement to claim damages for pain and suffering and of time limits.  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.

1. Counsel for the defendant did not suggest that the plaintiff's case was not viable.  It was suggested that it was tenuous but, in my view, once the apparent viability of an action has been demonstrated, it is generally not desirable for the Court, on the basis of the limited materials available on a preliminary application, to assess prospects of success.  The notes the plaintiff's solicitor made of her first attendance on the plaintiff on 8 January 1998 indicate that the plaintiff's view was that the trolley had collapsed because of a faulty "catch (or lock)".  He had told his solicitor that the trolley was purchased for use in the hospital only a couple of weeks earlier and that it was second-hand.  I am satisfied that he does have an arguable case for damages for negligence as claimed in the endorsement of claim on the writ.

1. No specific prejudice arising from delay was asserted, but the defendant's counsel submitted that although specific prejudice could not be identified, that did not mean that there was necessarily no prejudice.  Although it is lengthy, it is worth repeating what was said by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551 and following:

"The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates.' R v Lawrence [1982] AC 510 at 517, per Lord Hailsham of St Marylebone LC. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo (972)407 US 514 at 532, 'what has been forgotten can rarely be shown'. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
…
     The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. 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. Second, 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. Third, 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, 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.
…
… whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action.
…

In this context, justice includes all the relevant circumstances relating to the application including the various rationales for the enactment of the limitation period involved. That the applicant had a good cause of action and was unaware of a 'material fact of a decisive character relating to the right of action' does not alter the burden on the applicant to show that the justice of the case favours the grant of an extension of time. Those facts enliven the exercise of the discretion, but they do not compel its exercise in favour of the applicant. Without them, the applicant has no right to call for the discretion to be exercised in his or her favour. Proof of them does not give the applicant a presumptive right to the exercise of the discretion, as Davies JA and Ambrose J held. As Wells J has pointed out, 'to qualify is not to succeed'. The object of the discretion, to use the words of Dixon CJ in a similar context, 'is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.' In determining what the justice of the case requires, the judge is entitled to look at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period."

1. 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.

1. The application is dismissed.