Farley v Websters Ltd
[2000] TASSC 91
•14 July 2000
[2000] TASSC 91
CITATION: Farley v Websters Ltd [2000] TASSC 91
PARTIES: FARLEY, David John
v
WEBSTERS LIMITED
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M18/1999
DELIVERED ON: 14 July 2000
DELIVERED AT: Hobart
HEARING DATE: 25 May, 23, 30 June 2000
JUDGMENT OF: Master Holt
CATCHWORDS:
Limitation of Actions - Extension of time - Explanation for delay - Prejudice - Exercise of discretion.
Workers Rehabilitation and Compensation Act 1988 (Tas), s135(2).
Glover v Southern Cross Homes (Tasmania) Inc 111/1997; Bluett v Wedd Cannon Pty Ltd [1999] TASSC 23; Edwards v State of Tasmania [2000] TASSC 76; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, referred to.
Aust Dig Limitation of Actions [55]
REPRESENTATION:
Counsel:
Applicant: M J Brett
Respondent: L K Wall
Solicitors:
Applicant: Zeeman Kable & Page
Respondent: Wallace Wilkinson & Webster
Judgment Number: [2000] TASSC 91
Number of paragraphs: 23
Serial No 91/2000
File No M18/1999
DAVID JOHN FARLEY v WEBSTERS LIMITED
REASONS FOR JUDGMENT MASTER HOLT
14 July 2000
By writ filed 25 March 1999 the plaintiff has claimed damages for personal injuries suffered in an accident whilst working for the defendant on 21 February 1995. An application for an extension of time pursuant to the Workers Rehabilitation and Compensation Act 1988, s135(2) was filed on the same day.
In support of the application, photocopy medical records from the Launceston General Hospital were tendered and the following affidavits read into evidence:
· Affidavit of the plaintiff sworn 25 March 1999;
· Affidavit of legal practitioner Harry Derkley sworn 25 March 1999; and
· Affidavit of consultant physician John Martin Sands sworn 24 February 2000.
The plaintiff deposed that he was employed as a sales person at the defendant's store. In the course of his work, he cut open a pack of steel fence posts which had been tied in a bundle with tin straps. Upon cutting one of the tin straps, the pack collapsed and a number of the posts fell on to the plaintiff's left lower leg and foot. The plaintiff was taken to the Launceston General Hospital where it was noted that he had lacerations to the lower third of his left leg and a painful swollen foot. The wounds were dressed and the leg placed in a plaster cast. The plaintiff was off work for about 2½ weeks during which time he received workers compensation payments. There is no dispute about these matters and there is no need for me to say any more about the circumstances of the accident as the respondent concedes that the applicant has an arguable case against the defendant in negligence.
Following the injury, the plaintiff suffered blood circulation problems in his left leg. His leg was often painful and he had several hospital admissions because of these problems culminating with a below-the-knee amputation of the left leg in July 1998. The plaintiff has not worked since. Although workers compensation payments were made in respect of the initial period of about 2½ weeks during which the plaintiff was incapacitated for work, no workers compensation payments were requested nor made since the initial period of incapacity. The plaintiff was paid for his time away from work up until the amputation out of his accrued leave entitlements and following the amputation has been the recipient of a Government Sickness Benefit.
During cross-examination, the plaintiff was asked why he had not sought workers compensation payments after the initial period of incapacity. He explained that prior to the injury, he had been hospitalised in respect of a deep vein thrombosis of the left leg, being the same condition that led to his post-injury hospitalisations. He discussed the matter with his superior and as a result of that discussion, his superior was of the view that the ongoing problems with the left leg were related to a pre-existing condition and not the work accident. The plaintiff was paid for his time off work from his sick leave (and possibly) holiday entitlements. There was no suggestion that he was out-of-pocket. He was plainly unconcerned whether his absences from employment were covered by workers compensation or sick leave and did not discuss the matter of workers compensation entitlements or other entitlements with his doctor or seek legal advice.
The evidence of the plaintiff was that he was unaware of any right to make a claim for common law damages until after the amputation. He had a previous history of deep vein thrombosis and so would not have known whether his ongoing problems, which were of a similar nature to his pre-accident problems, were accident related.
In a number of cases this Court has considered whether or not it is a reasonable explanation for delay in seeking legal advice for an injured worker to say he or she did not know of his or her potential legal entitlements nor about time limits and was being compensated for lost wages or out-of-pocket expenses during the period of delay anyway. In Glover v Southern Cross Homes (Tasmania) Inc 111/1997, Wright J said at 4:
"It is significant to me that although still in pain and carrying some degree of disability upon returning to work after her twelve week break, the applicant suffered no loss of income thereafter. In such circumstances it is understandable that a conscientious worker may tend to put the injury behind her and get on with life.
This is what the applicant did. If her original disability had not reoccurred following her second accident in April 1995, she may never have turned her mind to the possibility of suing her employer. She enjoyed her work and was 'getting by'. In such circumstances, I think an applicant who is ignorant of her legal rights goes a long way towards explaining delay in failing to institute proceedings during the time that the relevant injury remains symptom free or is not disabling.
I am satisfied that the applicant has provided a satisfactory and acceptable explanation for her delay … ."
In Bluett v Wedd Cannon Pty Ltd [1999] TASSC 23, Wright J said at par 12:
"The applicant's explanation for his delay is of a twofold nature. In the first place, he says that the injury to the back did not manifest itself in a severely disabling form until after the three year time limit for instituting proceedings had expired. Those claims for workers compensation benefits which he made prior to October 1996, were met by the respondent or its insurers. The pain which he experienced in the back was not significantly disabling and he was able to work, notwithstanding this disability. In these circumstances the applicant saw no need to seek legal advice or make a claim for damages. I have previously accepted an explanation of this kind as reasonable (see Glover v Southern Cross Homes (Tasmania) Inc 111/1997 at 4), and I see no reason to adopt a contrary view on this occasion."
In Edwards v State of Tasmania [2000] TASSC 76, Underwood J said of the applicant in that case that whilst it was true that the applicant's ignorance of his legal entitlements and time limits was entirely due to him not seeking legal advice, the failure was not blameworthy as the applicant had apparently recovered from the injury and during periods of incapacity had received workers compensation payments.
In the circumstances of the present case, the plaintiff, although suffering significant symptoms periodically following the injury, continued in his employment; received payment for periods of incapacity and did not know (although he suspected) that his ongoing problems were accident-related. Consistently with the cases referred to earlier, I regard the delay between the date of the accident and the amputation as being understandable and satisfactorily explained.
Following the amputation in July 1998, the plaintiff had a prolonged convalescence in excess of two months in hospital during which time he had a prosthesis fitted. His evidence was that after his discharge in about October 1998, he was seen at home by a social worker who suggested that he obtain legal advice. He consulted solicitor Mr Harry Derkley on 8 December 1998 at which time he first heard of the possibility of him making a common law claim and the limitation periods. The delay between social worker suggesting that he should see a solicitor and the appointment with Mr Derkley was at most about a couple of months, and possibly much less. The plaintiff at the time was no doubt having to confront the significant life changes that had been and would be brought about by the amputation and I do not regard him as being dilatory in respect of the period between the amputation and the consultation with the solicitor.
The defendant does not take issue with any delay between the plaintiff seeing Mr Derkley on 8 December 1998 and the commencement of proceedings on 25 March 1999.
If this matter proceeds, a major controversy will be whether or not the amputation was accident-related. Consultant physician, Dr Sands, said in his report annexed to his affidavit that the amputation was causally related to the incident at work. In particular, he said at 4 of his report:
"In my opinion the accident at work was causal and led to the eventual amputation.
The only confusing issue is that of his previous deep vein thrombosis.
There was no clear cause as to why he should have had it, but this situation is not rare, it was two years before the accident, and it had completely resolved clinically."
The history relied upon by to Dr Sands was set out in his report, as follows:
"Prior to his leg injury he has been in quite good health. He had a fractured ulna in the past requiring plating in previous years, he had an appendicectomy [sic] in 1969, but otherwise he has only had surgery subsequent to his injury.
He did have a deep vein thrombosis of the left leg prior to the injury in 1993 with complicating pulmonary embolism and he has had a series of deep vein thromboses in that leg subsequent to his injury.
There is no relevant family history, he himself was on no medications prior to his injury … ."
Under cross-examination, Dr Sands elaborated on the history given to him by the plaintiff between the 1993 deep vein thrombosis and the work accident as follows:
"The information I have is from him and it is that he had complete recovery, was symptom free, was back playing football, off treatment."
Dr Sands said that his opinion was based upon the plaintiff's account of events.
The defendant referred to the medical records and other documents at the hearing which indicated that Dr Sands had less than a complete and accurate history. A report from general practitioner Dr Ballantyne (which the defendant tendered) had not been seen by Dr Sands prior to the hearing. Dr Ballantyne said:
"Mr Farley first consulted me on 28 September 1993. He had recently been discharged from the Launceston General Hospital where he had been treated for a deep venous thrombosis of his left leg and a small pulmonary embolism secondary to this thrombosis. Mr Farley told me that no cause had been identified for his deep venous thrombosis. He also told me that his mother had died at age 44 from a 'blood clot'. He was advised to stop smoking and the health risks of continuing to smoke were explained to him. He was advised that he would need to take warfarin for three to six months and ongoing monitoring regarding this treatment was arranged.
Mr Farley consulted me on 30 September, 1 October, 2 October, 4 October, 6 October, 9 October and 12 October 1993 regarding his left leg and his warfarin therapy. He had moderate to severe oedema of his lower left leg that was secondary to his deep venous thrombosis. This was treated with an elastic compression stocking and leg elevation. He was advised to wear the elastic compression stocking every day.
Mr Farley consulted me on 16 October 1993. He had developed weeping sores on his left calf secondary to tense oedema. He was encouraged to elevate his leg and he was referred to a physiotherapist to arrange fitting of a new elastic compression stocking.
When he was reviewed on 21 October 1993, the sores on his left leg were healing well.
Mr Farley consulted me on 26 October, 2 November, 9 November, 19 November, 3 December and 17 December 1993, and 7 January and 17 January 1994 regarding his warfarin management and his oedematous left leg. On 2 February, Mr Farley had developed cellulitis of his lower left leg secondary to some skin ulceration. He was treated with oral antibiotics. The cellulitis had resolved at review on 25 February 1994. He was advised to cease his warfarin therapy as planned on 13 March 1994 and to see me two weeks after that date.
Mr Farley consulted me on 23 March 1994. His diagnosis of post-phlebitic syndrome of his left leg was discussed again. Post-phlebitic syndrome is chronic venous insufficiency of the leg secondary to an extensive past deep venous thrombosis. The chronic venous insufficiency causes limb oedema with skin pigmentation, skin dermatitis and skin ulceration. Mr Farley had marked left leg oedema with lower left leg skin pigmentation and dermatitis. No ulceration was present on the 23 March 1994, but he had had this previously as documented above. He was again educated about the management of his condition. Blood tests were arranged to check for an underlying coagulation disorder that may have pre-disposed him to his deep venous thrombosis. No abnormality was detected.
Mr Farley consulted me on 20 April 1994. He had a deep ulcer on the medial aspect of his lower left calf. The ulcer was dressed and he was encouraged again to wear his elastic compression stockings. He consulted me on 30 April, 3 May, 7 May, 14 May and 28 May 1994 for ongoing treatment of this ulcer. It was 13mm by 14mm in size at the consultation on 28 May 1994. Mr Farley did not consult me again in 1994 regarding the ulcer."
The hospital records show that on 19 October 1994, the plaintiff attended the Department of Emergency Medicine at the Launceston General Hospital for recurrent headaches. Whilst he was at hospital it was noted that he continued to suffer from pitting pedal oedema which Dr Sands conceded in cross-examination was consistent with post-phlebitic syndrome.
On the day of the work accident, the hospital records indicated that the plaintiff presented with "chronic venous ulcers which were inflamed and weeping and that he was wearing an elastic compression stocking".
This information casts doubt on the history upon which Dr Sands relied for his opinion, namely the history given to him by the plaintiff that following the 1993 deep vein thrombosis the plaintiff had made a complete recovery and was symptom free.
The defendant contends that the delay has adversely affected its ability to conclusively exclude the work accident as being causally related to the amputation. The defendant read into evidence an affidavit sworn by vascular surgeon Mr David Cottier which had annexed to it a report in which Mr Cottier said:
"You raised the question as to whether I would have been in a better position to determine whether or not the amputation of Mr Farley's leg was casually [sic] related to the injury that occurred on the 21st February 1995 had I been able to examine the leg prior to its amputation in July 1998. In answer to that question I believe I would have been able to get a better understanding of the course of events for the following reasons:
1I would have been able to get a history from the patient prior to the leg amputation. Of course this would have been closer to the time of injury and therefore the patient would have a better recollection of events surrounding the accident. Furthermore, his recollection of events would not have been distorted by the trauma of the amputation, his subsequent rehabilitation and the consequent change of the quality of life following the amputation.
2I would have been able to assess the status of the leg. In particular, I would have been able to assess the likely aetiology of his leg ulcers viz: whether due to post-phlebitic syndrome or primarily due to previous trauma. Furthermore, I would have been able to ascertain the site of the ulcers and the likelihood of whether the ulcers on that particular site would have been caused by previous trauma or not.
In summary, I think that the information that would have been forthcoming at that time would have been of assistance in determining as to whether the amputation was casually [sic] related to the injury of the 21st February 1995 or rather was caused by progression of the post-phlebitic syndrome within the leg."
If the matter proceeds to trial and the plaintiff is to recover damages in respect of the amputation, it will be for the plaintiff to persuade the Court that the amputation was causally related to the work accident. The vascular surgeon who performed the amputation, Mr David Stary, would, most likely, be in the best position to deal with the issue of causation. Mr Stary's report of 8 May 1999 (which was tendered by the defendant) contained Mr Stary's conclusion that the amputation "was as a result of chronic venous congestion secondary to deep venous thrombosis". Mr Stary went on to say "According to the history given, this thrombosis occurred prior to the injury to his left leg in February 1995." Mr Stary said in his report that it was possible that the injury resulted in a further deep venous thrombosis but that this possibility was "purely speculative".
The question is whether or not the defendant is now able to fairly defend itself, that is to say, whether or not there is significant prejudice to the defendant.
In this case there is a recorded medical history strongly suggesting that the deep venous thrombosis suffered in September 1993 had not resolved by the time of the work accident as the plaintiff reported to Dr Sands. If a better medical history than that on the existing records cannot be ascertained and a precise description of the condition of the leg just prior to amputation to assess the likely aetiology is not available, the plaintiff, who carries the onus of proof, will be far more disadvantaged than the defendant. There was no suggestion, and I don't think that there could have been, that lack of information in the circumstances of this case advantages the plaintiff in linking the work accident to the amputation.
Counsel for the defendant did not suggest that delay had caused any identifiable prejudice in relation to issues other than the possible causative link between the work accident and the amputation.
There is an arguable case; a satisfactory explanation for delay has been provided and the defendant remains able to fairly defend itself. In these circumstances, the plaintiff has a right to call for the discretion to extend time to be exercised in his favour. In considering whether or not that discretion will be exercised, however, I also take into account the rationales for the enactment of limitation periods identified by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551 ff. I take into account that with the passage of time some evidence is likely to have been lost, but in all the circumstances I do not think that any unfairness is caused to the defendant. The defendant knew of the accident at the time it occurred and received a workers compensation claim immediately thereafter. The defendant knew that the injuries were to the plaintiff's lower left leg and foot and knew that the plaintiff needed to take time away from work from time to time because of problems in that area. The uncontradicted evidence of the plaintiff was that he was disuaded from claiming workers compensation for his ongoing symptoms by his work superior and it appears that the defendant although having an opportunity to do so had not taken any steps at all, after the initial workers compensation claim, to properly assess whether or not the ongoing complaints of the plaintiff were compensable. The defendant, for example, could have made an application under the Workers Rehabilitation and Compensation Act 1988, s136(1). The defendant, through its employee, chose to somewhat high handedly tell the plaintiff that his ongoing problems were not compensable rather than suggest to him that if he wanted to link the ongoing symptoms with the accident he should obtain a medical report.
I am satisfied that the justice of the case requires that an extension of time be granted. The time within which the plaintiff may commence an action against the defendant for damages for personal injuries suffered in the incident on 21 February 1995 will be extended to the date of the issue of the writ, namely 25 March 1999.
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