Grace v Mullins
[2006] TASSC 88
•3 November 2006
[2006] TASSC 88
CITATION: Grace v Mullins [2006] TASSC 88
PARTIES: GRACE, Richard Bruce
v
MULLINS, Craig E
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: LDR 77/2005
DELIVERED ON: 3 November 2006
DELIVERED AT: Hobart
HEARING DATE: 18 October 2006
DECISION OF: Master S J Holt
CATCHWORDS:
Limitation of actions – Postponement of the bar – Extension of period – Cause of action in respect of personal injuries – Principles upon which discretion exercised – Arguable case – Explanation for delay – Prejudice.
Workers Rehabilitation and Compensation Act 1988 (Tas) s135 (repealed).
Aust Dig Limitation of Actions [55]
REPRESENTATION:
Counsel:
Plaintiff: D R Fairley
Defendant: N Sweeney
Solicitors:
Plaintiff: Temple-Smith Partners
Defendant: Page Seager
Judgment Number: [2006] TASSC 88
Number of paragraphs: 18
Serial No 88/2006
File No LDR 77/2005
RICHARD BRUCE GRACE v CRAIG E MULLINS
REASONS FOR DECISION MASTER S J HOLT
3 November 2006
The plaintiff issued his writ on 16 December 2005 claiming damages from his employer for personal injuries suffered in the course of his work during July 2000. The plaintiff received workers compensation payments and so the relevant limitation provision was s135 of the Workers Rehabilitation and Compensation Act 1988. It provided that where a payment of compensation under the Act had been accepted by a worker no proceedings were to be commenced after the expiration of three years from the date of injury against the employer to recover damages in respect of that injury. It went on to empower the Court or a judge to extend the three year primary limitation period for up to a further three years. Although s135 was repealed effective from 1 January 2005, it was common ground that the provision continues to apply to this proceeding. See the Acts Interpretation Act 1931, s16(1)(c), and Maxwell v Murphy (1956 – 1957) 96 CLR 261. The right of a defendant to claim the protection of the time bar and the right of a plaintiff to apply for an extension of time and take the benefit of a favourable determination are rights preserved notwithstanding the repeal. The plaintiff has applied for an order extending the time for the commencement of the action to the date of the issue of the writ.
The discretion to extend time under s135 was the same as the discretion to extend time under the Limitation Act 1974, s5. Butt v Comalco Aluminium (Bell Bay) Ltd Tas U/R B9/1996 and Woolley v Australian Newsprint Mills Ltd Tas U/R 85/1997. Accordingly, the observations of the Full Court in Hill v Iluka Corporation Ltd [2002] TASSC 113, in relation to the Limitation Act discretion, also apply to the discretion under s135. At par23, the Court said:
"In any event, it is clear that although the issue of whether the defendant will be able to get a fair trial is a significant, if not decisive, factor, it is certainly not the only relevant factor in the exercise of the discretion. The Limitation Act, s5(3), requires that consideration be given to all the circumstances of the case. In most cases this means that regard must be paid to whether there is an arguable case, the length of the delay, the explanation for it and the degree of prejudice the delay has caused and/or will cause the defendant. All of these matters require weighing to determine whether it is just in the circumstances of the case, to extend the time within which proceedings may be commenced. See Knight v Smith [1975] Tas R 83; Klein v Domus (1963) 109 CLR 467; Parsons v Doukas (2001) 52 NSWLR 163; Marr v Green (1994) Aust Torts Reports ¶81-277."
The plaintiff was employed as a storeman and delivery driver by Craig Mullins who is named as the defendant in the action. Mr Mullins, who is now deceased, was the operator of a seafood processing and wholesaling business at Bicheno. In his statement of claim the plaintiff alleges that he suffered two injuries at work during July 2000. The first on Thursday, 13 July, when he suffered a soft tissue injury to his lower back in the course of hitching a trailer to a car. The second on Monday, 17 July, when he hurt his back again, this time lifting a fish transfer bin onto the tray of a truck. As to the first injury the medical evidence presented on behalf of the plaintiff was that it was a minor injury not leading to any significant pain and not leading to any incapacity for work, and an injury from which the plaintiff had fully recovered by the time of the alleged second injury on 17 July 2000. If the plaintiff succeeds in respect of that injury I have no reason to think that the damages awarded will comprise more than a nominal amount for pain and suffering. This being so, even assuming arguable case, a satisfactory explanation for delay and absence of prejudice, I do not see any injustice to the plaintiff in leaving in place the time bar which currently protects the employer in respect of that injury. An extension of time will not be given regarding the 13 July injury.
As to the alleged Monday, 17 July incident, nobody saw it happen. The allegation in the statement of claim that it did happen is not admitted in the defence. Counsel for the employer's insurer submitted that I should decline to accept the plaintiff's evidence about hurting his back while lifting a fish transfer bin. The submission is based on the fact that information given to the workers compensation insurer by the plaintiff shortly afterwards was inconsistent with the plaintiff's current version of events.
There is annexed to the plaintiff's affidavit a document which he describes as "a copy of my claim form". The annexed document is headed "Worker's report" and purports to have been signed and dated by the plaintiff on 25 July 2000. The form says that the injury was a "Back Strain". Under the item "What Happened?" the following words are handwritten "lifted a full trailer onto a towbar". The form says that this incident occurred on Thursday, 13 July. Despite the form having apparently been completed eight days after the alleged fish bin incident it makes no mention of any such incident having occurred on Monday, 17 July or at all.
Tendered in evidence by counsel for the workers compensation insurer was a statement made by the plaintiff. The plaintiff agreed under cross-examination that he had given the statement to an insurance investigator on 31 August 2000 and that on each page his signature appears under the words "I declare that I have read the above and that it is true and correct to the best of my knowledge or belief". In the statement the plaintiff says that the trailer incident occurred on Thursday, 6 July and the major injury occurred on the following Monday, being 10 July. However, the discrepancies between the statement and the claim which the plaintiff now wants to litigate are far more significant than that. In fact the statement on its face clearly indicates that the plaintiff did not injure his back lifting a fish bin as he alleges in the statement of claim.
The statement includes the following:
"On Thursday, 6th July, 2000 I started work at the normal time of 8:30am. I was in excellent health and very fit. I was not suffering a back injury. I worked normally until about mid-day [sic] when Craig or myself picked up a box trailer from the BP service station in Bicheno. It was driven to Suncoast Couriers in Saint Helens where an empty fish container was picked up and placed in the trailer. The trailer was driven to the site at Coastal Seafoods and unhitched.
I cleaned out the fish bin and reversed my 1981 VC SLE V8 Commodore sedan, registration DG 2010 back towards the front of the trailer. I left only about 2 inches distance between the back of the tow bar and the front of the trailer. I believe the tow ball and the front of the trailer are at the same height. Craig came out and together we lifted the trailer up and moved it forwards and dropped it onto the towball. I bent over to lift and move the trailer. I could not adopt a specific technique to bend at the knees to lift the trailer as it is too awkard [sic] …
As I lifted and moved the trailer I felt a click in my lower spine … I did not think the incident was very serious and was sure I would not feel any discomfort after a day or two … I worked the remainder of my shift conducting some cleaning and did not perform any strenuous activities.
I drove to the flat I was renting at the time, at 2 The Galleon in Bicheno after work and cannot recall experiencing any further pain or discomfort.
I did not work on Friday 7th July 2000 to rest my back on that day and over the weekend. My condition deteriorated over the weekend. I felt more pain and discomfort in my back and I stayed in bed for the majority of the weekend. I did not aggravate my condition. I tried to nurse it.
I returned to work on Monday 10th July, 2000 and performed my normal duties throughout the morning. I mainly conducted cleaning duties. At about 1:00pm a male from Lobsterworld in Bicheno came to the office and ordered 20 – 30 bags of ice. He wanted to take it away as soon as possible so I went to the ice room to bag it up. I use a large shovel and put ice in clear plastic bags. The bags contain about 30 kilograms of ice. I was standing over a compartment of the ice room which holds the ice and bend [sic] over to shovel it into the bags. There is a barrier about three feet high to contain the ice and I recall that the level of ice was quite low so I had to bend down further to reach it. I remember telling the customer that I did not think we had enough ice for his order so I would bag what I could and he could collect the remainder the following day.
I had filled only two bags with ice when I shoveled [sic] another load with my right hand, twisted to put it in the bag which I was holding in my left, and felt a sharp pain in my lower back. The pain was excruciating and I fell to the ground. I picked myself up and hobbled into the office, which is about 10 metres away to telephone the Bicheno Doctor's Surgery. I spoke to Doctor Henley and told him what I had done and that I was in agony. He told me to come in and see him. I told the male from Lobsterworld that I could not finish packing the ice bags and to return the next day. I told him that I had to drive myself to Craig's house and he left. I do not believe he witnessed the incident inside the ice room.
I drove to Craig's residence. I cannot recall the address, and his partner Ruby Gimbit and friend Bob Harder were present. Craig was in Triabunna. I told them what had happened and I could barely walk. Bob drove me to Doctor Henley who seemed detached and advised that I attend a Hospital. We left straight away and Bob drove me to Saint Helens Hospital in his brand new Commodore VT sedan. I had my seat levered backwards so I was lying flat and I felt pins and needles right through my body and was in a lot of pain.
By the time we arrived at the Hospital I could not move my arms and legs and I feared I had sustained spinal damage.
Some staff lifted me into a wheelchair and took me inside where I was laid on a bed and had to wait for two hours for a doctor, Doctor Sumar to arrive. He diagnosed me with back strain and advised that I remain in Hospital for two days.
I spoke with Craig and advised him of the incident and my condition and he advised me to complete the relevant workers compensation forms from the Hospital.
I was provided with pain killers which subdued my discomfort.
I was released from Hospital on Wednesday 12th July, 2000 and was picked up by some friends of mine who Craig had arranged. They took me to their home, Inglewood in outer Bicheno where I stayed for about 10 days. I sat and slept for most of the time and was looked after by my friends, Greg Norquay and the other occupants who I do not know.
I cannot recall how I came into possession of the workers compensation forms, but I completed them and provided them to Craig only a few days after I was released from Hospital.
I have attended Doctor Geoffrey and Doctor Sumar in Saint Helens and Doctor Henley in Bicheno for assessment since the incident who confirmed I had muscle strain in my lower back and advised that I rest.
I returned home for a couple of days after I left my friend's place and then purchased a caravan as I could not pay the rent. I have been staying in the caravan at Lagoons Beach since then.
I have not been to work since Monday 10th July, 2000.
…
I do not believe my injury could have been avoided. No level of training could have prevented the occurrence of my condition."
The employer, Craig Mullins, died on 15 May 2006. A statement which he made to the insurance investigator on the same day as the plaintiff made his statement was tendered. Mr Mullins' statement was also inconsistent with a claim that the plaintiff injured his back lifting a fish bin. It included the following:
"On Thursday 8th [sic] July, 2000 Richard arrived for work at Coastal Seafoods at 8.30am and appeared to be in good health and suffering no back injury. He worked normally and in the afternoon I requested that he assist me hitch a trailer to a Commodore sedan. The trailer had one empty fish container in it that did not weigh very much. I am not aware of how heavy the trailer is. It is a normal box trailer with one set of wheels.
I observed Richard bend down and lift the front of the trailer to hitch it to the tow bar of the Commodore sedan that had been reversed near the front of the trailer. There was only a short distance of about two to four inches from the rear of the tow bar to the front of the trailer.
I observed Richard adopt the proper lifting technique. He bent at the knees, kept a straight back, extended his arms and gripped the front of the trailer before extending his legs and lifting it upwards. I have trained Richard to use the proper lifting technique in accordance with training I had previously received in the Australian Army.
I also had hold of the trailer front and we moved the trailer forward and placed it on the tow bar. Immediately after we had done so he motioned with his hand that he had hurt his back and he complained that he felt a twinge in his back from the lift. I asked him if he was alright and he said that he was. At that stage I did not think Richard had sustained a serious injury.
Richard worked the remainder of his shift and I believe he loaded the trailer with fish stock. He did this for about one hour and he did not complain to me about his back after he had lifted the trailer. The fish stock is in containers and weighs anywhere between 5 kilograms and 15 kilograms each container.
The following Friday 7th July, 2000 Richard worked throughout the morning and at some time advised me that his back was in pain. I told Richard to go home which he did.
Richard returned to work on Monday 10th July, 2000 and worked normally without complaint until Thursday 13th July, 2000. I asked him on Monday 10th July, 2000 if he was alright and he assured me he was.
On Thursday 13th July, 2000 I travelled to Triabunna. During the day I received a telephone call from Bob Harder, Engineer of Burnie Council, a friend who was visiting Coastal Seafoods. He advised me that Richard had hurt his back from twisting it packing ice bags in the ice room at the site. He said that Richard was in pain and could not move and suggested that he be taken to Saint Helens Hospital in Saint Helens. I agreed and returned to Coastal Seafoods. Richard had been taken to hospital and I telephoned Taswide Fire and General, insurer of Coastal Seafoods. I spoke to Grant Howe, Claims Officer, and advised him of the incident and he told me to collect all documentation relating to Richard's condition and to keep him abreast of his progress. I telephoned Richard and told him it was in his interest to promptly report the totality of the incident to his doctor and to obtain the relevant workers compensation forms to complete and return to me. He said that he would only need two days to recover but I insisted that he complete the forms in any case for future reference.
On Monday 17th or Tuesday 18th July, 2000 Richard was released from hospital and advised me that he had completed the appropriate forms, which he did in the following days.
He was not capable of working and has not worked since Thursday 13th July, 2000.
I do not believe Bob Harder witnessed the incident in the ice room but he observed that Richard could not move after it."
Under cross-examination the plaintiff said that the story about the injury occurring whilst bagging ice had been made up. He said that this happened at the request of his employer, Craig Mullins. He maintained that the true story was the one contained in his affidavit sworn 2 February 2006. That affidavit includes the following:
"8 On or about the 13th of July 2000, while lifting the trailer with its load onto the tow bar of the car, I felt a strain in my lower back. It made me straighten up and stretch. The pain soon passed and I continued with my work. This was the first time I can recall ever having any unusual pain in my lower back.
Over the few days following the 13th of July, 2000 I felt more twinges in my lower back. My lower back felt stiffer than usual. The pain would not last long and I would be able to continue with my work. The pain was only in my lower back.
At some point during the three or four days after the 13th of July, 2000 I spoke to Craig Mullins about the strains I was feeling in my lower back. I recall Mr Mullins said 'just keep going, you'll be right', or words to that effect. As the pain was never very bad and happened only occasionally, I kept doing my normal duties.
9 On the 17th of July, 2000, at approximately midday, I was preparing to cart a load of fish using the truck. The tray of the truck was approximately 1.2 metres – 1.3 metres from the ground. I lifted the large 120kg transfer bin from the ground onto the tray of the truck. Just as I managed to get the transfer bin onto the tray, I felt a severe stabbing pain in my lower back, which caused me to drop to the ground. The pain continued as I lay on the ground and I recall that I could not feel my legs. After about 10 – 15 minutes I managed to crawl to the phone and contact Mr Mullins. He said he would get help. About half an hour later a man I recognised as the father of a friend of Mr Mullins arrived and took me to the St Helens Hospital.
10 When I reached the Hospital I gave the Doctor and Nursing staff a history of what had happened. I was examined and given pain killers. I was admitted. I saw Dr Sumar who arranged for an x-ray. The scan was done on the 18th of July, 2000. I was allowed to go home that evening.
11 After I was treated at the Hospital I returned to see Dr Sumar at the St Helens Medical Centre on the 25th of July, 2nd of August and 14th of August, 2000. The Doctor told me that the scan did not show any problems with my spine and told me that the pain was due to a soft tissue injury. He told me to rest, take pain killers and see a Physiotherapist.
12 On the 25th of July, 2000 I completed a Workers Compensation Claim form and gave it to Mr Mullins. I also gave him the Workers Compensation Medical Certificate given to me at the Hospital. I understood that my claim would go to an insurer. Every time I went to Dr Sumar I would get another Workers Compensation Medical Certificate and then give it to Mr Mullins.
…
27 As a result of my work place accident I completed a Workers Compensation Claim form and Medical Certificate. Annexed hereto and marked with the letter 'F' is a copy of my Claim form and initial Medical Certificate. I note that the Claim form includes a medical authority allowing the workers compensation insurer to gain access to my medical records. Shortly after the 17th of July, 2000 I was interviewed by an investigator for the insurance company. I gave the investigator a full description of how I had been injured. HIH accepted my claim and paid my wages for the 20th of July to the 15th of September, 2000.”
The workers compensation form submitted by the plaintiff and signed 25 July 2000 contained an authority in the following terms:
"To any medical practitioner or other person who has treated me or the Registrar of any hospital at which I have received treatment.
I, employed by Coastal Seafoods, authorise any medial [sic] practitioner or any other person who has treated me or the Registrar of any hospital at which I have received treatment to give my employer, or his or her insurer, information about myself specific to this claim for worker's compensation. A photocopy of this authority is to be considered as valid as the original."
Neither party tendered any medical records and so I do not have the history, if any, recorded at the St Helen's Hospital when the plaintiff presented there. After the statement made to the insurance investigator by the plaintiff on 31 August 2000 was tendered in evidence, there was no application for an adjournment to enable the plaintiff to present medical notes or other evidence corroborating his current version of events.
Notwithstanding the evidence which the insurer has to show that the plaintiff's present version of events is a recent invention I cannot conclusively exclude the possibility that at trial it might be accepted that the plaintiff suffered his back injury whilst lifting a 120 kg fish transfer bin onto a flat tray truck. Obviously, if that version of events is accepted, the plaintiff has a realistic prospect of success. This is not the trial of the action. The plaintiff does not need to persuade me, in order to obtain an extension of time, that he is not telling lies or that he has better than a weak prospect of success. I would not withhold the granting of an extension of time on the ground that the plaintiff has failed to demonstrate the existence of a viable cause of action. In considering the application I will proceed on the basis that there is a viable claim and will not include in my ultimate assessment of whether or not the justice of the case rests with the grant of the extension sought opinions as to the plaintiff's veracity or the strength or weakness of his claim.
I now turn to the length of the delay and the explanation for it. The injury occurred in July 2000 and the writ issued in December 2005, a delay of almost 5½ years. Counsel for the insurer made no submission that the explanation for delay was unsatisfactory. In short, the plaintiff says that after submitting his claim for compensation he was sending workers compensation medical certificates to insurer HIH. HIH had been making payments until its financial problems became public in early 2001. As a result the plaintiff assumed that he would not be able to recover compensation payments in future and so relied on Centrelink benefits. Even though he says his back pain has caused significant disability ever since July 2000 he did not obtain legal advice until the latter part of 2005. At that time an acquaintance told him that she had heard that CGU Insurance had taken over from HIH and that it was worth giving that company a telephone call. The plaintiff contacted CGU and in August 2005 that company wrote to the plaintiff indicating that it had responsibility for his claim. The plaintiff then saw a solicitor at the Community Legal Centre in Devonport who advised him to contact his current solicitor about the matter. The plaintiff did that in September 2005. The solicitor undertook some investigations relating to the claim and assisted the plaintiff in applying for funding to the Legal Aid Commission. The Legal Aid Commission approved funding for the claim in late November 2005 and the writ issued in December 2005. The plaintiff's evidence is that until he first saw his solicitor in September 2005 he did not know what a common law claim for damages was, did not know that he might need to issue a writ and did not know that the time limit for taking action was three years from the date of the injury.
It being unlikely that an injury occurring in the manner described in the plaintiff's statement to the insurance investigator on 31 August 2000 could be attributed to the fault of the employer it might be that if the plaintiff's current story is a recent invention, that accounts for the prolonged period of inactivity. However, as I have said, the veracity or otherwise of the plaintiff's version of events is a matter for trial and not a matter for summary determination by me on this application. Taken at face value the plaintiff's explanation for the delay could be regarded as reasonable and satisfactory and counsel for the insurer did not submit otherwise. Because counsel for the insurer did not complain about the explanation for the delay I would not withhold an extension of time on grounds including in whole or in part a failure to properly explain the delay. In exercising the discretion I will treat the delay as having been satisfactorily explained.
This brings me to consider the degree of prejudice the delay has caused or will cause. As indicated earlier, the named defendant Mr Mullins died on 15 May 2006. If the proceeding had been commenced within the three year primary limitation period there is a realistic prospect that it would have been heard and determined before Mr Mullins' death.
The plaintiff says the story about bagging ice was made up at the request of Mr Mullins. Evidence, subject to the usual courtroom scrutiny is now impossible. Representations made by Mr Mullins might be available and admissible, but it would not be as useful as viva voce evidence from Mr Mullins, upon which he might be cross-examined. The subject of the evidence which might have been given by Mr Mullins (either supporting or refuting the plaintiff's claim that the ice bagging story was an agreed concoction) goes to the heart of the assessment of the veracity of the plaintiff's claim. The absence of Mr Mullins must affect the quality of the justice which could now be achieved at a trial.
The remarks of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 are apposite. He said at 555:
"When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff's lost right should not be revived than that the defendant should have a spent liability reimposed upon it."
The discretion conferred by the legislation is a discretion to grant and not a discretion to refuse and so the plaintiff carries the overall onus of satisfying the Court that the discretion should be exercised in his favour. Mr Mullins was a potentially vital witness. If the action had been commenced in timely fashion there is a very good chance that a trial would have occurred whilst he was available to give evidence. I attach the greatest weight to this circumstance and, accordingly, after attaching due weight to the existence of a viable case and a satisfactory explanation for delay having been given, I am not persuaded that the justice of the case rests with reviving the plaintiff's lost right.
There will be an order dismissing the application.
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