Felmingham v Silvandale Transport Pty Ltd and Anor (Ruling)
[2022] VCC 1140
•26 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-21-03542
| KEVIN FELMINGHAM | Plaintiff |
| v | |
| SILVANDALE TRANSPORT PTY LTD | First Defendant |
| and | |
| INSURANCE AUSTRALIA GROUP LTD | Second Defendant |
---
| JUDGE: | HIS HONOUR JUDGE FRAATZ |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22 June 2022 |
| DATE OF JUDGMENT: | 26 July 2022 |
| CASE MAY BE CITED AS: | Felmingham v Silvandale Transport Pty Ltd and Anor (Ruling) |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 1140 |
RULING
---
Subject: LIMITATION OF ACTIONS
Catchwords: Limitation of actions – personal injury ꟷ industrial accident – application to bring claim for common law damages out of time – prejudice – fair trial
Legislation Cited: Limitation of Actions Act 1958 (Vic), s23A
CasesCited: Bell v SPC Ltd [1989] VR 170; Tsiadis v Patterson (2001) 4 VR 114; Transport Accident Commission v Murdoch [2020] VSCA 98; Koumorou v State of Victoria [1991] 2 VR 265; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Davies v Nilsen [2015] VSC 584; Arisoy v Yoogalu Pty Ltd [2012] VSC 631; Clark v McGuinness [2005] VSCA 108; WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2) VSC [2020] 639
Ruling:Application granted. Order extending the period of limitation to the cause of action set out in the plaintiff’s Statement of Claim against the defendants to 20 August 2021.
---
| APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr P O’Dwyer SC with Mr N Dubrow | Angela Sdrinis Legal |
For the First Defendant | Mr S Gladman | MinterEllison |
For the Second Defendant | Mr J Angenent | Mills Oakley |
COUNTY COURT OF VICTORIA
250 William Street, Melbourne
HIS HONOUR:
1The plaintiff, Kevin Felmingham, now 52 years of age, commenced employment as a truck driver with the first defendant, Silvandale Transport Pty Ltd (“Silvandale”) on or about 11 February 1997.
2On 10 August 2006, he was directed by his employer to pick up a load of wine from premises occupied by Fearman Pty Ltd (“Fearman”) at 110-118 Talinga Road, Cheltenham (“the premises”).
3During the course of securing double stacked pallets of wine which had been loaded onto the tray of his Volvo 420 Tautliner by forklift, the plaintiff was struck by a forklift on his left-hand side (“the incident”). His next memory was being on the ground next to the forklift with part of its load lying across his right ankle.1
4According to Mr Felmingham’s affidavit sworn 4 November 2019 in support of his serious injury application, the forklift driver, “Peter”, then helped the plaintiff to the sickbay at the premises.
5Mr Felmingham remained very stiff and sore in the days following the accident, with extensive bruising all over the left side of his body, including his left hip, buttock, hand and ribs. The left side of his neck and lower back were also painful. He had a lump on the side of his head and was suffering with headaches and experiencing difficulty hearing in his left ear. He attended his general practitioner, Dr David Chesney, a few days after the incident, who checked his left ear, and gave the plaintiff a WorkCover certificate for time off work. He was not sent for any investigations or referred for any other medical treatment. After four days or so off work, he returned back to normal duties, despite being stiff and sore over the left side of his body.
Exhibit 1 to the affidavit of the plaintiff sworn 13 April 2022
6From that point in time, his symptoms waxed and waned, but Mr Felmingham assumed he would make a full recovery and he put up with the pain. He continued doing long hours at work. Assisted by Panadol for pain relief, massage and with some physiotherapy from about late 2007, he worked full time in an unrestricted manner until eventually, on the advice of family, he commenced chiropractic treatment to his neck, back and hip in mid-2019, and ceased work.
7As a result of the incident, Mr Felmingham alleges he has suffered injuries to his left hip and leg, spine and right foot, with a head injury including loss of consciousness, anxiety and depression. He completed a workers’ compensation Claim Form for the incident at the time.
8It is not in dispute that the plaintiff was struck by a forklift at the premises driven by an employee of Fearman, insured by the second defendant, Insurance Australia Group Ltd (“IAG”).
9By Summons dated 25 March 2022, Mr Felmingham seeks leave under s23A of the Limitation of Actions Act 1958 (Vic) (“the LA Act”) for an extension of time to commence proceedings for the recovery of damages as a result of Silvandale and Fearman’s negligence alleged in his Statement of Claim dated 21 October 2021.
10Mr Felmingham relies upon his affidavits sworn 4 November 2019 and 13 April 2022, together with exhibits to those affidavits; and the affidavits of his solicitor, Gino De Biase of Angela Sdrinis Legal, sworn 13 April 2022 and 26 May 2022, together with the exhibits to those further affidavits.
11Silvandale does not oppose the relief sought by Mr Felmingham.
12The Summons is opposed by IAG, which relies upon the affidavit of Samala Jane Nancarrow, of Mills Oakley Lawyers, solicitor for the second defendant, affirmed 11 May 2022, and its exhibits.
13No witnesses were called to give evidence or be cross-examined. Counsel for the plaintiff and Counsel for the second defendant provided written submissions.
Procedural history
14Following his application for a serious injury certificate lodged on or about 12 November 2019, the plaintiff’s common law claim was commenced by Writ filed 20 August 2021 against Silvandale and Fearman.
15Fearman was deregistered on 4 February 2021 and subsequent to the issue of proceedings, the plaintiff’s solicitors substituted IAG in the place of Fearman following leave being granted by the Court on 8 November 2021.
16In its Defence dated 9 March 2022, IAG alleges that the plaintiff is barred from making any claim for damages against it due to the operation of s5(1) of the LA Act.
17It is agreed that the proceeding was commenced out of time. The period of delay is sixteen years from the date of the incident to the issue of proceedings, or sixteen years and seven months, if the date is calculated to the time of the application for the extension of time by Summons dated 25 March 2022.
Discovery of cause of action
18As to the discovery of his cause of action against the defendants, in his affidavit sworn 13 April 2022, Mr Felmingham deposed as follows:
“19. I remained stiff and sore in the next few months over the left side of my body following the accident, including my neck and lower back, to varying degrees. Nonetheless, I felt I was capable of working.
20.I did not know or understand what my legal rights were at this time. I also did not know the nature and extent of my injury. I went back to work because I thought I would be ok.
21.My symptoms then waxed and waned. I assumed I would eventually make a full recovery and although I experienced days when I was pain free my symptoms would return, especially on physical activity. The pain and symptoms in the left side of my neck and lower back increased throughout 2007. My left hip was also troubling me more consistently at this stage, although not as much as in my neck or back. I put up with the pain and continued doing long hours at work
with the expectation that my symptoms would eventually go away. I coped by taking Panadol, at least weekly but usually more often, for pain relief. The medication helped but my condition did not improve as I hoped and as a result of my ongoing neck and lower back symptoms, I had treatment from chiropractors and also physiotherapists at the Physica Yarra Valley physiotherapy Clinic in Chirnside Park. I do not remember discussing the Forklift accident with them.
22.I kept on working. My symptoms in my left hip, neck and lower back continued to fluctuate, gradually getting worse over the years. I started having difficulty getting in and out of the truck cabin because of hip pain, carrying out head checks when driving because of neck pain and increasing difficulty lifting due to back pain. However, I was still able to work full time unrestricted duties. I also experienced occasional bouts of pain throughout other parts of my body on the left side but generally they did not cause me too much difficulty.
…
23.From approximately 2013 onwards, the neck and back pain that I was experiencing got progressively worse. Everyday tasks, such as putting my socks on, and getting up and down from the couch became increasingly difficult due to the pain. However, I was still able to work full time unrestricted duties.
24.In or around June 2019, I recall that I was working about an average of 50 hours per week with Boral, as it was a very busy time. One evening after work I went to stand up from the couch in my lounge room to walk to my bedroom but the pain around my lower back and left hip was so bad that I could not walk without assistance. Cathy told me that I had to do something about the pain. I booked an appointment with chiropractor, Mr Darren Riordan, at Clarence Valley Chiropractic for treatment.
25.Mr Riordan arranged for an Xray to be taken of my hip and spine. He then informed me that the Xray showed that my hip and spine were out of place and that the results were consistent with injuries that may arise from an impact injury. He asked me if I had ever been in an accident involving impact. I informed him of the forklift accident.
26.This is when I first connected my current condition with the Forklift Accident.
27.Mr Riordan informed me that my injuries were significant, and I could have major problems in the near future. I realised that this was serious. I became worried about my future and my ability to keep working.
28.I had previously arranged annual leave around the time I was receiving treatment. I was unable to return to work at the end of my leave due to my pain and symptoms and I have not been able to work since by reason of my left hip and lower back injuries in particular.”
19Shortly after receiving Mr Riordan’s opinion, and because of his inability to work, the plaintiff decided to seek legal advice, and after contacting a number of law
firms in New South Wales and Victoria, contacted his current solicitors, Angela Sdrinis Legal, in late June 2019, and instructed them on 12 July 2019. Mr Felmingham deposed that he did not know about common law entitlements or limitation periods before receiving legal advice in the middle of 2019.2
20In August 2019, upon referral from his general practitioner, Dr Mere Vaurasi, Mr Felmingham saw an orthopaedic surgeon, Dr Mathew Broadhead. Dr Broadhead advised Mr Felmingham that he required a total left hip replacement, and performed this operation on about 26 November 2019.
21Mr Felmingham was also referred to Dr Neil Cochrane, neurosurgeon, who subsequently performed a L4-5 discectomy and decompression in April 2020, which was complicated by further disc prolapses in the low back, requiring another urgent back operation about a week later.
Relevant principles; discussion
22The principles which apply in this matter are agreed. The application falls for determination pursuant to s23A of the LA Act, by which the Court may make an order extending the time for commencement of the proceeding if it determines “it is just and reasonable to do so”. The Court’s discretion is guided by the matters set out in ss23A(3)(a) to (f).
23Relevantly, the section provides as follows:
“23A Personal injuries
(1)This section applies to any action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) where the damages claimed consist of or include damages in respect of personal injuries to any person.
(2)Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an
Plaintiff’s affidavit sworn 13 April 2022, at paragraph [35]
action on the cause of action may be brought be extended for such period as it determines.
(3)In exercising the powers conferred on it by subsection (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following—
(a) the length of and reasons for the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c) the 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 actor 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.”
24The relevant principles may be summarised as follows:
(a)the onus of satisfying the Court that it is just and reasonable to extend the limitation period rests with Mr Felmingham;
(b)in determining an application for extension of time, the Court should synthesise the competing considerations referred to in s23A;
(c)the delay referred to in s23A is the delay between the accrual of the cause of action and the making of the application for extension of time;
(d)it is prima facie prejudicial to the defendants to allow the commencement of an action outside the limitation period;
(e)specific prejudice is not necessarily an absolute bar to a plaintiff succeeding on a s23A application. The exercise of the discretion is a synthesis of all the competing considerations of s23A(3), and prejudice is one of a number of
competing factors to be taken into account. If the prejudice is such that a fair trial cannot be had, then it may be compelling on the issue of what is just and reasonable in the circumstances;
(f)it is in the public interest that proceedings be issued within limitation periods and that parties, including insurers, be able to arrange their affairs in the knowledge that they have no liabilities beyond a certain period;
(g)it is not essential to the Court, in refusing to exercise its discretion to extend the limitation period, to require there to be specific prejudice to a defendant;
(h)an inordinate delay may be taken as evidence of prejudice;
(i)the question of the pursuit of a serious injury application is relevant in determining whether the delay is inordinate;
(j)the Court has a wide discretion to extend time if it is satisfied that it is in the interests of justice to do so.3
25The first defendant, Silvandale, was Mr Felmingham’s employer at the time of the incident and does not oppose the application.
26The second defendant, IAG, opposes the relief sought, principally on the basis of the length and inadequate reasons for the significant delay in the issue of proceedings; and the extent to which it has suffered general prejudice by reason of the effluxion of time and “the imprecise memory that its witnesses would have in relation to events of the time”.4
Bell v SPC Ltd [1989] VR 170 at 174; Tsiadis v Patterson (2001) 4 VR 114 at 116, paragraphs [31] and [33]; Transport Accident Commission v Murdoch [2020] VSCA 98, at paragraphs [67]-[73] and [75]-[79]; Koumorou v State of Victoria [1991] 2 VR 265 at 271; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 544 and 554-555; Davies v Nilsen [2015] VSC 584 at paragraph [49]; Arisoy v Yoogalu Pty Ltd [2012] VSC 631; see also discussion in Clark v McGuinness [2005] VSCA 108 at paragraphs [37]-[42] and [61]-[65]
IAG’s written submissions at paragraphs [9]-[17]
27IAG was critical of Mr Felmingham in terms of his explanation for the delay, and, in particular, when he became aware the alleged injuries suffered were as a result of the incident.
28Firstly, it was submitted that if the incident was as violent as Mr Felmingham alleges, and the cause of significant injuries, then it was “implausible” that he would not have been aware at the time that the incident was potentially actionable.
29Secondly, if he was aware, then the delay in issue of proceedings could not be viewed as acting promptly or reasonably.
30Mr Felmingham, however, was not cross-examined about this issue. Accordingly, I accept the plaintiff’s evidence as to the explanation for the delay that he continued to work full time from shortly after the incident until the middle of 2019, when he first consulted a medical practitioner who linked his then severe symptoms in the left hip with the trauma of the incident, and shortly thereafter sought and received legal advice for the first time since the incident.
31I note the concession of counsel for IAG that, if the Court accepted the explanation as to when Mr Felmingham became aware of the extent of his alleged injuries suffered in the incident, the insurer accepts that the plaintiff acted promptly and reasonably since mid-2019.5
32I find that there was no delay upon the part of Mr Felmingham in obtaining medical, legal and other expert advice, once he connected his symptoms with the trauma suffered in the incident in mid-2019.
33
Mr Felmingham is a stoic man with a stable work history since leaving school at the start of Year 11; and in more recent times, worked for Silvandale for nearly ten years before the incident occurred, a period of time thereafter, and then for an uninterrupted period of at least eleven years for Boral, driving concrete trucks. The fact of his ignorance as to his legal rights is understandable, and I accept that to
Transcript of hearing, 22 June 2022, pages 13-14
be the position. An ignorance of legal rights can properly be considered in the exercise of the very wide discretion of the Court.6
34The evidence and pleaded case are that the injuries matured over time, and the initial relatively modest effects on his quality and enjoyment of life, and in particular, his ability to work, are consistent with the plaintiff not seeking legal advice in relation to his rights in the first instance. It was only upon his back and left hip preventing him from working in 2019 that Mr Felmingham sought medical and legal advice. I note IAG’s submission that “the incident seemingly only had a modest effect on his quality and enjoyment of life, and ability to work, which ultimately informs why he did not take any steps to obtain any such advice until mid-2019, and then only at the prompting of a chiropractor enquiring about any traumatic events which may explain some radiological findings”.
35The question of general prejudice was the principal submission relied upon by IAG. In particular, I was referred to the oft-cited passage in Brisbane South Regional Health Authority v Taylor7 that it is prima facie prejudicial to a defendant to allow the commencement of the action outside the limitation period. In the present case involving a period of delay of 16 years, such prejudice is likely to exist.
36The plaintiff accepts that there will be general prejudice.
37That prejudice is one factor to be synthesised in the exercise of the discretion of the Court under s23A of the LA Act. The evidence overall concerning the circumstances of this case is illuminating in the context of the application.
38
The plaintiff was injured in a frank incident, the circumstances of which were recorded in Silvandale’s WorkCover Register of Injuries and a WorkSafe Incident Notification Form, both dated 10 August 2006;8 in a Worker’s Claim Form signed by Mr Felmingham and completed by the employer;9 and in the WorkCover
See Tsiadis v Patterson (supra) at paragraph [16]; Davies v Nilsen (supra) at paragraphs [66]-[92]
(supra) (per McHugh J)
Plaintiff’s Court Book (“PCB”), pages 206-207
PCB 51-53
Employer's Claim Report dated 11 August 2006.10 WorkSafe conducted an investigation into the forklift incident on 10 August 2006, completing an Entry Report in relation to the incident at the premises and an Improvement Notice to Fearman.11
39By correspondence dated 7 October 2020, SYMP Pty Ltd (the registered owner of a business, Portavin Integrated Wine Services, which operated from the premises occupied by Fearman at the relevant time) received a demand from Minter Ellison lawyers on behalf of the Victorian WorkCover Authority and Silvandale, enclosing a copy of the plaintiff’s application pursuant to s134AB of the Accident Compensation Act 1985 made on or about 12 November 2019.12 The letter stated:
“We understand that the incident involving the worker and a forklift occurred at the premises of Portavin Integrated Wine Services in Cheltenham. It is our view therefore that Portavin Integrated Wine Services are a potential defendant/third party to any proceeding the worker may commence seeking damages.
We recommend you contact your public liability insurer to advise them of this potential claim. We request that you please advise us of your insurer to enable future enquiries to be directed to them.”
40The insurer, IAG, does not dispute that the incident occurred. It relies upon practical problems in investigating the circumstances of the incident in its capacity as an insurer, not as the occupier company (Fearman) in its own capacity.
41Notwithstanding the occupier is now deregistered and had, in fact, been sold to another company prior to the issue of proceedings, investigations by an insurance investigator conducted in 2020 have uncovered the existence of significant continuity of staff at the premises. Such potential witnesses include Fearman’s production manager at the time of the incident, Gavin Wade, who has been employed at the premises since at least 2005.
42The insurance investigation reports prepared by Maurice J Kerrigan & Associates dated 31 March 2020, 6 and 14 April 2020 disclose detailed investigations,
PCB 208
PCB 139-143
Exhibit SJNM-1 to the affidavit of Samala Jane Nancarrow affirmed 11 May 2022
including photographs of the area in which the incident occurred, and comments concerning the condition of the premises at the relevant time. An inspection of the accident scene was conducted under the guidance of Mr Wade, production manager at the time, including a demonstration of the use of a forklift for loading and unloading pallets of bottles of wine onto and off a semitrailer. The investigator was informed that road markings on the concrete driveway where such loading occurred had been added since the incident. Mr Wade advised that some records of the incident had been disposed of and that the former area supervisor was now deceased.
43The Kerrigan report dated 6 April 2020 includes the following comments:
“On 2 April 2020 we attended the premises of Portavin Integrated Wine Services at 114-118 Talinga Road, Cheltenham VIC.
We inspected the accident scene under the guidance of Gavin Wade, Production Manager, telephone 03 #### #### (work), #### ### ### (mobile). We contacted Driver A, Peter Gardiner and he confirmed the area was the scene where the accident occurred. Mr Gardiner advised the road markings had been added since the accident and the pallets of bottles were now in greater number than in 2006.”
44Critically, the forklift driver employed by Fearman involved in the incident has been identified as Peter Gardiner; and, further, Mr Gardiner has provided a detailed signed statement to the insurance investigator in March 2020, extending to some 43 paragraphs, of his recollection of the circumstances surrounding the incident.13 In that statement Mr Gardiner also refers to a previous statement he made to WorkCover investigators in 2006, and that what he said in that statement “was true and correct”. Mr Gardiner was the only witness to the incident.
45Medical records appear to be available to the defendant/insurer. It was not suggested that there were any medical records which existed that had not been made available to IAG in its investigation of the history and onset of presentation of symptoms.
Attachment 1 to the report of Maurice J Kerrigan & Associates dated 14 April 2020 at PCB 127
46As Keogh J said in WCB v Roman Catholic Trusts Corp for the Diocese of Sale (No 2),14 the defendant is entitled to a fair trial, not a perfect one.
47In that context, critical witnesses are available, with continuity of those witnesses between the date of the incident and the date of this application; records of the incident exist; investigations have been conducted including a contemporaneous witness statement of the forklift driver in 2006 (by WorkCover) and a further statement from him taken by the insurance investigator in 2020; the employer (Silvandale) does not oppose the application; and no substantive specific prejudice has been established.
48While the Court must guard against allowing a claim to proceed out of time where a fair trial is not possible, the witnesses available and documents and other materials that exist demonstrate that we are far distant from this position in the circumstances of this case. To conduct a trial in this proceeding would certainly not be an abuse of process.
49IAG relied upon the affidavit of Ms Nancarrow to establish specific prejudice. That affidavit includes the statement at paragraph 17 that:
“Forklift driver, Mr Peter Gardiner, has provided information to the Second Defendant regarding the incident, however, given the significant period since the date of the incident, his recollection is limited.”
50Mr Gardiner’s 2020 statement at paragraph 43, however, states that –
“… This is the only accident I’ve had working and why I remember it so well.”15
51In light of the statement and other assistance provided by Mr Gardiner to the insurance investigator, paragraph 17 of Ms Nancarrow’s affidavit does not reflect the true position. I was informed by Counsel for IAG that the affidavit was prepared on the basis of information and belief and, in particular, was based on a telephone
[2020] VSC 639
PCB 127
interview with Mr Gardiner conducted in May 2022 by another member of Ms Nancarrow’s firm, Mills Oakley.
52While I accept that explanation, given Mr Gardiner’s central importance as the only witness to the event, I find that the submission by the insurer that it has suffered specific prejudice because of Mr Gardiner’s limited recollection of the incident is not made out on the evidence before me.
53It was not explained in the Nancarrow affidavit, or otherwise, how the evidence of Fearman’s area supervisor or a warehouse manager at the time – one deceased and the other living overseas – were important to the resolution of the issues in dispute in this trial. Nor was it established that the warehouse manager, by reason of residing overseas, is not available to give evidence at trial. The same observations attend to another quality control manager who cannot be located but is believed to be retired and living interstate.
54The rest of the material in the Nancarrow affidavit rises no higher than establishing general prejudice in the Brisbane South Regional Health16 sense.
55The insurer’s submission that it has suffered prejudice as a consequence of its status as the insurer of a deregistered company as opposed to the occupier seem to extend no further than the proposition that the effluxion of time has deprived it of the ability, in the same sense as the occupier of the premises, to conduct appropriate investigations. I note that the business, whilst now owned by a different company, continues to operate at the premises.
56I find that the prejudice suffered by IAG in being able to defend the allegations of trial is not such as to prevent the extension of time. In addition to Mr Gardiner, there is substantial documentary material in existence and other evidence available relating to the circumstances of the incident, and the work systems in place at the premises of the occupier, including witnesses such as the production
Supra
manager employed in 2006, and a quality control officer. A former director of Fearman is also available, who can provide general information about the operation of the premises in 2006. The evidence suggesting that available witnesses such as the production manager and a quality control officer deny any knowledge of the incident or having worked in the relevant area of the premises does not establish prejudice by reason of any delay on the part of the plaintiff.
57The insurer relies upon Mr Felmingham’s evidence that he was stiff and sore for a few months after the incident, but felt capable of working, and continued to do so in an unrestricted manner for thirteen years after the incident to support its submission that the plaintiff failed to take adequate steps to obtain medical, legal or other expert evidence. The fact that the plaintiff was working full time in an unrestricted manner, however, seems to me to support his explanation for the delay in seeking medical and legal advice in relation to the circumstances of the incident until after the expiry of the limitation period.
58It is also relevant, although I place little weight on this, that the plaintiff requires a serious injury certificate in order for leave to commence this proceeding, which he obtained by a certificate issued by the Victorian WorkCover Authority on 22 April 2021. On one view he could not have obtained a certificate in relation to his loss of earnings until such time as he ceased work in 2019.
59Once he ceased work in mid-2019, an application was made promptly to the Authority for a serious injury certificate, in November 2019.
Conclusion
60Upon the necessary synthesis of all the competing considerations, whilst there has been a very significant delay in the commencement of the plaintiff’s case, this delay has been explained. It seems to me that the plaintiff has a sufficiently arguable case, and that there is material available to ensure that a fair trial may be conducted.
61Whilst there is some prejudice, that appears to be principally of a general nature only, as the evidence does not support a finding of any substantial specific prejudice other than the death of a supervisor employed at the premises at the time of the incident. The weight of any evidence that he may have been able to give in the context of the issues in this proceeding was not explained. Whilst there is little doubt by reason of the effluxion of time and the deregistration of Fearman that recollections may have faded, and there is the possibility relevant documents may no longer be available, there is a significant body of material recording the circumstances of the incident including witness statements made by the driver of the forklift involved in the incident and a WorkSafe investigation conducted in 2006. As such, the extent of any actual or potential prejudice is not sufficient to preclude the Court from extending time on the grounds that it is just and reasonable to do so.
62In the event, I grant the plaintiff’s application, and shall hear from the parties as to costs.
- - -
0
8
1