Griffiths v Nillumbik Shire Council (Ruling)
[2021] VCC 1193
•24 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-20-03138
| JEFFERY ALLAN GRIFFITHS | Plaintiff |
| v | |
| NILLUMBIK SHIRE COUNCIL | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 July 2021 | |
DATE OF RULING: | 24 August 2021 | |
CASE MAY BE CITED AS: | Griffiths v Nillumbik Shire Council (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1193 | |
RULING
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Subject:LIMITATION OF ACTIONS
Catchwords: Application for extension of time pursuant to s23A of the Limitation of Actions Act 1958 – injury to right and left knees over the course of employment with the defendant – further injury to shoulder – advice provided by solicitors not to proceed with claim – whether advice reasonable at the time – injuries developed over time to joint replacement surgery – substantial delay in issue of proceedings – whether specific and/or general prejudice to the defendant – whether plaintiff acted promptly through new solicitors – not just and reasonable to extend the time for issue of proceedings
Legislation Cited: Limitation of Actions Act 1958, s5, s23; Occupational Health and Safety (Manual Handling) Regulations 1999; Accident Compensation Act 1985, s98C, s98E
Cases Cited: Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517; Prince Alfred College Inc v ADC [2016] 258 CLR 134; R B Policies at Lloyd’s v Butler [1950] 1 KB 76; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; South Western Sydney Health Service v Gabriel & Anor [2001] NSWCA 477; Welsh v Adecco Industrial Pty Ltd & Ors [2017] VSC 44; Delai v Western District Health Service & Anor [2009] VSC 151; Tsiadis v Patterson (2001) 4 VR 114; Van Gerven v Amaca Pty Ltd [2012] VSC 131; R v Lawrence [1982] AC 510
Ruling: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram QC with Mr G A Worth | Shine Lawyers |
| For the Defendant | Mr M K Clarke | Wisewould Mahony |
HIS HONOUR:
Preliminary
1Mr Jeffrey Griffiths commenced work for the Nillumbik Shire Council (“the Shire”) in 1991. He worked as a garbage collector and truck driver. He alleges he suffered injuries over the period from 20 October 1999 to May 2003, during which he was required to carry out heavy repetitive work, and, in particular, on 27 May 2002, when he says he lifted a bin containing crushed rock.
2Mr Griffiths alleges the injuries sustained were to his right knee, left knee, left shoulder and a psychiatric injury. He claims a “consequential injury” was sustained to the left hip. He claims these injuries caused or contributed to a total right knee replacement performed on 3 April 2014, a total left knee replacement performed on 5 July 2018 and a total left hip replacement in July 2019.
3According to his Statement of Claim, Mr Griffiths alleges the injuries were sustained as a result of the negligence of the Shire. Relevantly, he claims the Shire:
· Failed to provide a safe place and system of work
· Failed to provide adequate manual assistance
· Required him to undertake duties which were beyond his capacity
· Failed to instruct its customers about filling rubbish bins with heavy material
· Failed to have a system of assessing the weights of collection bins
· Failed to have in place adequate risk assessment in relation to manual tasks
· Failed to comply with the Occupational Health and Safety (Manual Handling) Regulations 1999.
4Maurice Blackburn Lawyers represented Mr Griffiths over various periods from 2008 until August 2015. Over the course of their retainer, they assisted him in relation to two claims for benefits under a superannuation disability policy, an impairment benefit in relation to hearing loss, a claim for lump sum entitlement pursuant to s98C/s98E of the Accident Compensation Act 1985 and for reinstatement of weekly payments after those payments were terminated by the insurer.
5Mr Griffiths accepts he received advice from Maurice Blackburn about his entitlement to make a claim for damages at common law for the injuries sustained in the course of his employment with the Shire. By letter dated 15 April 2008,[1] Mr Griffiths was advised that he first had to establish that he had suffered a “serious injury” arising out of employment after 20 October 1999. He was further advised that if he was to maintain a claim for damages at common law, it was necessary for him to establish that the injuries arose as a result of the negligence of his employer. The letter said:
[1]Exhibit JAG 4 to Mr Griffiths’ affidavit affirmed 29 June 2021
“We confirm our advice that on the basis of your instructions and the medical material you provided to us, we believe you may have difficulty establishing that you have suffered a serious injury.
In the event you were able to obtain a serious injury certificate, we believe you may have difficulty in succeeding in establishing that you were injured as a result of the negligence of your employer or a third party.
Therefore we would not recommend that you instruct us to pursue a claim for common law damages on your behalf.
As you are aware, you have 6 years from your date of injury to apply for a serious injury certificate should you wish to pursue a claim for common law damages.
With respect to the injury you suffered on 27 May 2002, we advise that you will have until 26 May 2008 to apply for a serious injury certificate.
Therefore should you wish to pursue a common law claim, you must act very quickly with respect to instructing solicitors to act.
We confirm our advice that we do not recommend that you instruct us to pursue a claim for common law damages, as on balance, we believe you are likely to have difficulty succeeding in such a claim.
Therefore unless we receive your instructions to the contrary within 7 days, we will assume that you do not wish us to pursue such a claim on your behalf.
Should you wish to obtain a second opinion in relation to your prospects of succeeding in a claim for common law damages, you should do so, and do so as a matter of urgency.
… .”
(emphasis in original).
6Further, by letter dated 15 May 2008:[2]
“We refer to our previous advice regarding a common law damages claim. We note that in the absence of your instructions in response to that previous advice, we confirm that we are not instructed to act on your behalf with respect to a common law damages claim and have not taken any action in this regard. You will note our advice regarding the time limitations with respect to such a claim, and we urge you to obtain alternative legal advice should you wish to pursue this claim within the applicable limitation periods.”
[2]Exhibit JAG 5 to Mr Griffiths’ affidavit
7Mr Griffiths made a claim for a lump sum payment pursuant to s98C/s98E which was accepted by the insurer by letter dated 21 April 2010,[3] after the date of expiry of the limitation period in respect of the common law claim. Liability was accepted in respect of the right and left knees, and the left shoulder.
[3]Exhibit JAG 6 to Mr Griffiths’ affidavit
8By letter dated 17 May 2010,[4] Maurice Blackburn confirmed that the insurer had accepted the claim in respect of the knees and the left shoulder, and provided advice in relation to claims made as to sleep apnoea and psychiatric injury, including referring the insurer’s refusal in respect of those injuries to Conciliation. The letter went on to say:
[4]Exhibit JAG 7 to Mr Griffiths’ affidavit
“Your decision as to whether or not you wish to pursue a Common Law negligence claim for pain and suffering damages subsequent to the Medical Panel assessment, will be made in consultation with our office. As previously advised, to pursue a Common Law claim for pain and suffering damages, you will need to satisfy the serious injury test in accordance with the Act.
In order to establish a Common Law claim for damages, you must first establish that you have suffered a serious injury. A serious injury for pain and suffering purposes is an injury that produces either a:
•30% or more whole-person impairment assessed under the AMA Guides (4th Edition) pursuant to Section 104B, or
•permanent serious impairment or loss of a body function, or
•permanent serious disfigurement, or
• permanent severe mental or behavioural disturbance or disorder, or
• loss of a foetus.
In your case, the independent impairment assessment shows that you have an impairment of less than 30% and you would therefore have to show that your serious injury existed under one of the other headings.
Courts have said in the past that for an injury to be ‘serious’ it must be more than marked, more than significant and at least very considerable.
… .”
9By letter dated 28 October 2010,[5] Maurice Blackburn advised Mr Griffiths that his claim for lump sum compensation for both knees, left shoulder and psychiatric injury had been accepted. This followed a finding by a Medical Panel. An offer of $35,990.00 as lump sum compensation was made and subsequently accepted. The letter also made further reference to a common law damages claim. The letter said:
[5]Exhibit JAG 8 to Mr Griffiths’ affidavit
“Common Law Damages Claim
Based on your instructions and the information that is on file, we have some reservations regarding your prospect of succeeding in a Common Law damages claim for pain and suffering.
In order to establish a Common Law claim for damages, you must first establish that you have suffered a serious injury. A serious injury is defined as a:
• 30% or more whole-person impairment assessed under the AMA Guides (4th Edition) pursuant to Section 104B, or
• permanent serious impairment or loss of a body function, or
• permanent serious disfigurement, or
• permanent severe mental or permanent severe behavioural disturbance or disorder, or
• loss of a foetus.
In your case, the independent impairment assessment has determined that you have an impairment of less than 30% and you would therefore have to show that your serious injury existed under one of the other definitions above.
The Victorian Courts have decided that for an injury to be a serious injury it must be more than marked, more than significant and at least very considerable.
We confirm we have previously provided you with advice in relation to a common law damages claim. We refer you to our letters of 22 May 2008, 15 May 2008, 15 April 2008 and 23 September 2009. We note after each correspondence we have not obtained your instructions to proceed with a Common Law damages claim
We are also of the view that you would have difficulty succeeding in a claim for Common Law damages for loss of earnings. In order to pursue a Common Law damages claim for loss of earnings, you need to establish not only that you suffer a serious injury but in addition, that you have suffered a 40% or more permanent loss of earning capacity. We note you have advised the Medical Panel that you continue to work in a full time capacity as a Storeman and you are able to manage and continue in that employment. The fact you have returned to full time employment would appear to make your prospect of establishing a serious injury for loss of earnings unlikely. You also indicate you have applied for a position with the Wallan CF and if successful could earn in excess of $55,000 per annum plus vehicle.
We also note the statutory limitation period of six (6) years from your injury of 7 August 2002 has well and truly elapsed and we have advised you of this on a number of occasions.
We also note a further claim for compensation was lodged for knee injuries sustained on 7 August 2007 whilst employed by Work Solutions (Melb) Pty Ltd. The Insurer appears to have accepted liability for this injury however there does not appear to have been any compensation paid on this claim. In relation to any injuries sustained on 7 August 2007 you would have until 7 August 2013 within which to commence a common law damages claim, however you would be required to establish that the injuries sustained on 7 August 2007 are a serious injury, separately to any pre-existing knee injury of 2002. In light of the medical evidence on file, we are [of] the view you have great difficulty maintaining that position.
Even if you are able to establish you suffer from a Serious Injury as defined by the Act, we have reservations regarding your ability to prove that your injuries were sustained in circumstances where your employer, or a third party, would be considered negligent.
Further, any damages you might be entitled to would need to be reduced by $35,990.00 that you will receive from your Impairment Benefit claim.
All things considered, we do not recommend you instruct us to proceed with a common law damages claim.
We confirm your instructions were obtained in your conference with the writer on 27 October 2010 not to proceed with a Common Law damages claim.
Upon finalisation of all financial matter on your file, we will close your file and it will be retained in storage for a period of up to seven years after which point it will be destroyed.
We thank you for your instructions in this matter.”
10Self-evidently, the advice in these letters was provided well before Mr Griffiths underwent knee and hip replacement surgery from 2014.
11It is clear from this correspondence Maurice Blackburn identified a range of difficulties as to the prospects of success of a serious injury application and a claim for common law damages. These included:
· Mr Griffiths, after he ceased work with the Shire, had advised a Medical Panel he continued to work as a storeman, carrying out work he was able to manage. This would affect his ability to establish a loss of earning capacity in the serious injury application, and in the common law claim;
· He had applied for a position with “Wallen CF”, and if successful, would result in a salary in excess of $55,000 per annum;
· He had submitted a claim for compensation for knee injuries (presumably to the left and right knee) sustained on 7 August 2007 with another employer, which claim had been accepted by the insurer;
· If successful in the common law damages claim, the amount of $35,990 would be deducted from the judgment.
12According to his affidavit, Mr Griffiths gave instructions to Maurice Blackburn on 27 October 2010 not to proceed with a common law damages claim in respect of the injuries arising out of his employment with the Shire.
13In 2013, Mr Griffiths made application, with the assistance of Maurice Blackburn, for reinstatement of weekly payments. That application was rejected by the insurer.[6] At some point in this process, Maurice Blackburn referred Mr Griffiths for assessment by Mr Thomas Kossmann, orthopaedic surgeon. Mr Kossmann, in his report of 12 August 2015,[7] concluded that Mr Griffiths’ employment with the Shire, together with a subsequent employer, Coles, “most likely contributed to his bilateral shoulder injury, bilateral knee injury and bilateral hip injury and his present condition”.
[6]Exhibit JAG 10 to Mr Griffiths’ affidavit
[7]Exhibit JAG 2 to Mr Griffiths’ affidavit
14Mr Griffiths attended two Conciliation conferences without representation in 2016.
15In 2016, a psychologist, Mr Marc Lezon, suggested Mr Griffiths consult another firm of lawyers, and he went to see Melbourne Injury Lawyers in December 2016. At that firm, he saw Mr Aleksandar Koteski, who subsequently became employed by the plaintiff’s current solicitors, Shine Lawyers.
16In 2019, an application was made to this Court pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 seeking leave to bring common law proceedings for injury suffered by Mr Griffiths in the course of his employment at the Shire. Given his Statement of Claim seeks damages for economic loss, presumably leave was granted in respect of both pain and suffering and economic loss.
17Ms Anna Dodshun, the defendant’s solicitor, swore an affidavit on 16 July 2021. She referred to a Register of Injury form dated 8 August 2002 which recorded the date of injury as the 7 August 2002, being a “strain” to “both knees”. The injury was said to “happen during [t]he day over a period of time”. In response to the question “How did the injury occur?”, Mr Griffiths wrote “by getting bin in – out of truck cabin, manually moving 120L mobile garbage bins to truck”. A WorkCover Claim Form submitted on 8 August 2008 was accepted by the insurer in respect of bilateral knee injuries and left shoulder injury.
18Ms Dodshun noted Mr Griffiths had worked for about eight employers after ceasing work for the Shire in May 2003, when he had accepted a redundancy.
19Her affidavit referred to a number of former employees of the Shire who she considered may be potential witnesses in the proceeding. They were Ms Cara Manuell, who worked in human resources in 2003; Mr Phil Lowrey, who was the supervisor and manager of waste services for the Shire between 1997 and 2003; Mr Neil Harris, who was the roads coordinator for the Shire, and Mr Nathan Miller, the current waste team leader, whose employment commenced after the plaintiff left work in July 2003. The affidavit suggested the memory of those witnesses was such that they had little understanding or recollection of the events surrounding Mr Griffiths’ employment with the Shire.
20Ms Dodshun referred to a fire which occurred at a large portable facility at the Shire’s premises on 15 June 2011. Exhibited to the affidavit[8] are various documents of the Shire referring to the circumstances of that fire and the resultant loss.
[8]Exhibit AKD-2
Legislation
21Section 5 of the Limitation of Actions Act 1958 (“the Act”) provides, relevantly, that an action in tort must be brought within six years of the date upon which the cause of action accrued.
22Section 23A(2) provides that a court may extend that limitation period “if it is just and reasonable to do so”.
23Section 23A(3) relevantly provides:
“(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)…
(e)the extent to which the plaintiff acted promptly and reasonably once he knew that the act or 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.”
The conduct of Maurice Blackburn
24The plaintiff makes a number of criticisms of the advice provided by Maurice Blackburn in relation to Mr Griffiths’ prospect of obtaining common law damages, and the failure by that firm to bring proceedings on his behalf.
25The plaintiff contends that while he may have a cause of action against his former solicitors, such a proceeding would involve a range of complexities and difficulties such that such a prospect ought to carry little weight in considering whether it is just and reasonable to grant an extension of time.
26In Gordon v Norwegian Capricorn Line (Australia) Pty Ltd,[9] J Forrest J reviewed the authorities and concluded:
“It follows that a potential claim against former solicitors is a relevant consideration, but that the question of what weight is to be given to it depends on the circumstances; a court must be careful in ascribing weight to the prospect of such a claim, given that the full circumstances surrounding such a claim may not be known. A Court may also take into account the prejudice to the plaintiff in prosecuting the claim against the solicitors as opposed to prosecuting the claim that is potentially statute barred. That prejudice may take several forms – diminution in the value of the claim as well as any added costs and the complexity of the proceeding against the former solicitor.”[10]
[9] [2007] VSC 517
[10](Ibid) at paragraph [86]
27The advice provided to Mr Griffiths by the letter of 15 April 2008 was that Maurice Blackburn believed he would have difficulty establishing he had suffered a serious injury and that he was injured as a result of the negligence of the Shire. They advised against the issue of common law proceedings.
28After the expiration of the limitation period, the issue of common law proceedings was again raised. In the letter of 17 May 2010, Maurice Blackburn detailed the requirements of the Accident Compensation Act to satisfy the serious injury test as a prerequisite to the issue of a claim for common law damages. In a further letter of 28 October 2010, Maurice Blackburn gave more detailed advice in respect of meeting the serious injury test. The letter noted Mr Griffiths had continued to work on a full-time basis as a storeman and that he was able to manage and continue in that employment. Given he was earning in excess of $55,000, it was unlikely he would be able to prove a 40 per cent loss of earning capacity. The report of Mr Kossmann also mentions that Mr Griffiths had worked for Coles over a period, which work had contributed to his injuries. The affidavit of Ms Dodshun refers to different jobs Mr Griffiths held for various periods after his work with the Shire and up until August 2012.
29The letter further noted Mr Griffiths had lodged a further claim for compensation in relation to his knees for injuries sustained on 7 August 2007 in the course of his employment with Work Solutions (Melb) Pty Ltd, for which liability was accepted by the insurer. No compensation would appear to have been paid in respect of this claim. Nonetheless, it appears there were a number of Mr Griffiths’ employers who he alleged, and some medical opinion confirmed, were responsible, at least in part, for the injuries to his knees and shoulder.
30There is no clear evidence as to what medical opinions, instructions from Mr Griffiths, statements from co-workers and other documentation as to liability and quantum was available to Maurice Blackburn, both on the issue of attaining the serious injury test, and as to liability in the common law claim.
31Mr Ingram, Counsel for the plaintiff, was critical of the advice provided by Maurice Blackburn. Firstly, he noted that Mr Griffiths’ current solicitors had applied for and obtained a serious injury certificate, thus opening the gateway to common law damages. In his submissions, he said a serious injury application should have been made after the first of his knee replacement surgeries, around 2014, and then further again after the left knee replacement in July 2018.
32He submitted the length and reasons for the delay in bringing the proceeding were explained because of the advice given by Maurice Blackburn not to proceed with the common law claim, and because Mr Griffiths was dealing with the problems with his knees and hip and the replacement surgeries which were required.
33However, it is always difficult, sometimes impossible, for a solicitor, even armed with expert medical advice, to predict the course of injuries. Regularly in injury cases of this nature, there is the prospect of ongoing degeneration of some body function as a result of the degenerative process generally, or an acceleration of that process as a result of injury. Cases are resolved or run on the basis that at some time in the future, an applicant worker may experience degeneration which would lead to further symptoms, joint replacement and reduced earning capacity. It would be impractical, if not impossible, to delay bringing proceedings until it was determined precisely what the outcome of the body’s degenerative process would be. In many cases, that would result in a delay of many years, even decades. The fact that a serious injury certificate was granted in 2019 does not make the advice provided in 2008 and 2010 incorrect or inappropriate. I am of the view it is not reasonable to expect Maurice Blackburn to advise a delay in the issue of proceedings until the injuries ran the full course of the degenerative process.
34Nor am I satisfied that it was reasonable for Maurice Blackburn to have reviewed the situation in 2014 at the time of the first knee replacement. As stated, it is not clear what expert medical opinion and other information it had in its possession about the prospects both of the serious injury application, and the common law proceedings generally. What is known is that Mr Griffith faced a range of problems in bringing both proceedings, including employment with a number of subsequent employers which were said to have contributed to his injuries.
35There is little purpose to applying for and obtaining a serious injury certificate if the prospects of success in a common law damages proceeding are poor. The plaintiff’s Statement of Claim provides little detail as to how and in what circumstances Mr Griffiths’ various injuries occurred and how it was said they arose as a result of the negligence of the Shire. There is little detail as to the incident said to have occurred in May 2002, and how that caused an injury to Mr Griffiths’ left shoulder. The explanation given in the Injury Register is of little assistance and is, if anything, confusing.
36On the evidence before me, it is difficult, if not impossible, to draw the conclusion that the advice provided by Maurice Blackburn, even given the success of the subsequent serious injury application, was inadequate or incorrect. There may be a host of reasons as to why that firm took the view the prospects of success in a serious injury application were not strong. There may be insufficient medical evidence to link the various injuries to the employment activities claimed. There may be issues about an underlying degenerative condition in the knees or shoulder. Mr Griffiths had apparently suffered another injury to his knees at a later time and an injury to his shoulder at an earlier time. Given he worked for a considerable period after leaving the Shire, there may have been issues establishing that a deterioration in his knees was as a result of that employment. Not only had he worked on after leaving employment with the Shire in May 2003, but on a full-time basis, and with eight or so different employers. Moreover, if the prospect of proving negligence was bleak, then there would be little point in bringing a serious injury application at the outset.
37I am not satisfied there is sufficient evidence to prove that the advice provided by Maurice Blackburn as to the prospects of success of a serious injury application, or as to establishing negligence in the common law proceeding, throughout the period they were retained was inappropriate or incorrect. In any event, Mr Griffiths had the option, clearly stated and open to him, to obtain the opinion other solicitors.
The length of and reason for the delay
38On any view, the length of the delay is substantial. The period over which the injury is said to have occurred is from October 1999 to May 2003. A serious injury application was issued in 2019. The Writ, seeking damages at common law against the Shire, was issued on 20 July 2020. That is a delay of between sixteen and twenty years. The authorities make it clear “delay” means delay from the time the cause of action arose.
39In the course of cross-examination, Mr Griffiths was questioned about the advice he was given as to the expiry of the limitation period in respect of his common law rights and the need to act quickly and retain another lawyer if he wished to pursue that entitlement. He said he was told that once he had made a report of an injury, that was it, it was “set in concrete”. So far as he could recall, he did not seek the advice of another firm of lawyers between April 2008 and December 2016, when he retained Melbourne Injury Lawyers. He said he accepted the advice of Maurice Blackburn not to proceed with the common law claim, although he was not happy about that advice.
40Mr Griffiths said he stopped work completely in 2012. He could not work beyond that point because of the problems with his knees. He said he did not pursue a claim at that time as he wanted to make sure he had all the facts “correct” and because of the physical problem with his knees. While Mr Griffiths is a relatively unsophisticated man and presumably accepted the advice of his lawyers, two things were made clear to him. He was advised of the expiration of the limitation period and the consequences which would result, and he was offered the opportunity to obtain a second legal opinion.
41In Prince Alfred College Inc v ADC,[11] the High Court said:
“It is an error of principle not to regard the arrangements made by the respondent with the school as significant. Where an injured party makes a deliberate decision not to commence proceedings, there must be strong reasons to permit proceedings to be brought against a defendant who reasonably considered that the dispute had been laid to rest. It has been recognised that there is an element of oppression involved in bringing an action so long after the circumstances which gave rise to it have passed.[12] … .”
[11][2016] 258 CLR 134 at paragraph [106]
[12]R B Policies at Lloyd’s v Butler [1950] 1 KB 76 at 81‑82; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (“Brisbane South”) at 552
42Further, in Itek Graphix Pty Ltd v Elliott,[13] the New South Wales Court of Appeal said:
“A deliberate decision to allow a statutory limitation period to expire would be a powerful factor against the grant of leave. Where a deliberate decision to allow the period to expire has been made, ordinarily it will be difficult to provide an explanation for that decision sufficiently cogent to warrant the grant of leave. There is ample authority to this effect. … .”[14]
[13](2002) 54 NSWLR 207
[14](ibid) at paragraph [91]
43Mr Griffiths appears not to have made any response to the various letters sent to him about the expiry of the limitation period. He accepted he gave instructions to Maurice Blackburn not to pursue the claim. The advice contained in the various letters from the solicitors was clear and unambiguous. He had the opportunity to consider his position carefully, seek an alternative opinion and proceed with his common law claim if he so chose. Even accepting his relative lack of sophistication and understanding of the law, it was his decision not to proceed.
Prejudice
44The onus is upon the plaintiff to prove that it is just and reasonable to extend the limitation period. The plaintiff must show that his case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question.[15] As was said by Hodgson JA in South Western Sydney Health Service v Gabriel & Anor:[16]
“… The true issue on this matter is whether or not the applicant for the extension discharged the onus of satisfying the Court that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely. … .”
[15]Brisbane South at 553
[16] [2001] NSWCA 477 at paragraph [33]
45McHugh J, in a much quoted passage from Brisbane South, said:[17]
“… The enactment of time limitations has been driven by the general perception that ‘(w)here there is delay the whole quality of justice deteriorates’. (11) 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 (12), ‘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.”
[17](ibid) at paragraph [4]
46In Welsh v Adecco Industrial Pty Ltd & Ors,[18] T Forrest, J noted that the relevant delay is the delay between the accrual of the cause of action and the making of the application for an extension of time. His Honour observed that the longer the delay in commencing a proceeding, the more likely it is that there will be prejudice from lost witnesses or fading recollections.[19]
[18][2017] VSC 44; see further Delai v Western District Service & Anor [2009] VSC 151
[19]Welsh v Adecco (ibid) at paragraph [6]
47The touchstone is whether, given the passage of time, there can be a fair trial conducted on the merits of the case.[20] A fair trial does not mean an ideal trial, rather one that is acceptably fair.[21]
[20]Prince Alfred College Inc v ADC (supra) at paragraphs [99]-[100]
[21] Gordon v Norwegian Capricorn Line (Australia) Pty Ltd (supra) at paragraph [79]
48The mere passage of time, in particular, a passage of more than sixteen years, of itself, warrants an inference of prejudice.[22] As was said by Beach J in Van Gerven v Amaca Pty Ltd,[23] mere delay itself, when inordinate, may be taken as evidence of prejudice.
[22]Tsiadis v Patterson (2001) 4 VR 114 at paragraph [32]
[23] [2012] VSC 131 at paragraph [44]
49The defendant makes allegations that it has suffered specific prejudice based upon:
(a) the destruction of the documents in a fire on 15 June 2011; and
(b) the inability to locate and obtain instructions from former employees of the Shire who may have worked with the plaintiff over the relevant period.
50As to the documents said to have been destroyed in the fire, I am not satisfied documents which could be said to be related to work systems, instructions and other documentation which may exist as to liability in this proceeding, were destroyed in the fire. Appendix 4 to Exhibit AKD-2 refers to a long list of documents which were held in the storage facility destroyed by the fire. In respect of incident investigations, WorkCover documents and health and wellbeing, those documents were said to be “electronically available”. Indeed, many documents referred to were said to be electronically available, or reconstructed.
51In relation to the claim the defendant had been unable to locate any employees who may have worked with Mr Griffiths over the relevant period, the defendant’s investigations have revealed four witnesses. The discussion had by Ms Dodshun with those witnesses was very brief. The file notes[24] suggest only telephone calls were made, and each call was very brief. It appears to me that the investigations in respect of these former employees were somewhat cursory. Given the nature of the allegations of negligence made by Mr Griffiths against the Shire, I would have expected a more comprehensive investigation would have been undertaken, and full statements obtained from the witnesses on the issues which are relevant.
[24]Exhibit AKD-1 to Ms Dodshun’s affidavit
52In response to the Shire’s claim that it will suffer both specific and general prejudice if leave is granted to extend the period within which the proceeding may be brought, the plaintiff has produced a range of documents, including Claim Forms, Injury and Incident Reports, correspondence with the insurer, medical records and reports.[25]
[25]See paragraphs 23-28 of Mr Griffiths’ affidavit
53Further, Mr Griffiths has produced an affidavit of a former workmate, Mr Barry Birchall, affirmed 25 February 2021.[26] Mr Birchall worked for the Shire for a long period until July 2020. For a time, he drove a garbage truck upon which Mr Griffiths was one of the “runners”. Mr Birchall said subsequently, Mr Griffiths moved to other areas, including green waste and commercial waste. He said the work as a runner was heavy, and a garbage truck might collect 800 to 900 bins per day. A runner was required to jump on and off the truck and empty the bins. Later, the Shire introduced trucks with a mechanical arm to lift the bins, and the physical aspect of the work of the runners was much reduced. Mr Birchall said that when Mr Griffiths injured his left shoulder in 2002, he was working in commercial waste and Mr Birchall was not working with him.
[26] Part of Exhibit A
54The plaintiff contends there is evidence that the system of work has changed to the system set out in the affidavit of Mr Birchall.[27] Although Mr Birchall’s recollection appears somewhat sketchy, he noted he worked with the plaintiff on the same garbage truck for a period but subsequently, Mr Griffiths moved to other roles. In any event, Mr Birchall is only one witness and his affidavit does not provide a comprehensive insight as to the issues of liability the defendant is likely to have to meet. Further, while the documents produced by the plaintiff may go some way to understanding the system of work, given the passage of time, it is not known whether there are other documents which may throw light on the issues in dispute.
[27]Exhibit JAG 15 to Mr Griffiths’ affidavit
55Despite the affidavit of Mr Birchall, I am satisfied there is significant general prejudice to the Shire in attempting to conduct the trial of this proceeding now, so many years after Mr Griffiths’ employment. As stated, the delay in brining proceedings is substantial, even inordinate. The defendant will be expected to make investigations, locate documents and find witnesses now twenty years after the cause of action first arose. It is no easy matter even to know what to seek in order to meet the allegations of the plaintiff.
56The defendant has delivered Interrogatories for the examination of the plaintiff and the plaintiff has provided Answers,[28] and while those Answers provide some details, they do not provide real clarification of the plaintiff’s claim. To that extent, the defendant suffers unfair prejudice. As has been said by the authorities: “[w]here there is delay the whole quality of justice deteriorates.”[29]
[28]Exhibit AKD-3 to the affidavit of Ms Dodshun
[29]R v Lawrence [1982] AC 510 at 517
57The general nature of the pleadings make it difficult for the defendant to determine what evidence it might call, and what documents it might rely upon. Nonetheless, even a cursory assessment would suggest the following issues are likely to be relevant and require investigation:
· What instruction was provided to Mr Griffiths as to the manner in which he was to carry out his work as a “runner” on the garbage truck, and in lifting bins.
· Whether he made any complaint of any difficulties with the work and, if so, to whom. In his Answers to Interrogatories, Mr Griffiths said he did make complaints about his work over the years, and further alleged other workers had suffered injury, although could not remember the dates.[30]
· Whether there was any system of work in place as to how the work was to be carried out, including the routes to be undertaken and the time required.
· Whether there had been other instances of injury or complaint from other workers about the work.
· Given the allegation of failure to provide manual assistance, what manual or other assistance was available to assist in Mr Griffiths’ tasks.
· Whether there was any assessment of Mr Griffiths’ strength and capabilities, and whether there was any assessment as to whether he was then capable of undertaking his work duties, both initially and on an ongoing basis.
· Whether there was any instruction provided to residents, including any documentation as to advice about what could be placed in rubbish bins and any permitted weight allowance.
· Given an allegation is made as to the breach of the Occupational Health and Safety Regulations, whether any risk assessment was undertaken and, if so, whether any steps were taken as a result.
· Moreover, as the defendant submits, with the lapse of time, it will be difficult to locate and interview fellow employees who worked with or supervised Mr Griffiths and locate documents which may be relevant to the issues in the trial.
[30] Exhibit AKD-3 to the affidavit of Ms Dodshun
58I am satisfied there is significant general prejudice to the defendant in attempting to respond to the plaintiff’s allegations, and therefore to be able to conduct a fair trial on the merits.
The conduct of the Defendant
59It is put by the plaintiff that the conduct of the defendant or its insurer caused or contributed to the delay.
60The basis of the plaintiff’s allegation appears to be that while the insurer accepted liability for Mr Griffiths’ right and left knee, and left shoulder injuries in April 2010, in 2013, it rejected his application to reinstate weekly payments.
61However, by 2013 the limitation period had well and truly expired. Further, there may be a host of reasons as to why the claim for weekly payments was rejected.
62I am not satisfied any conduct by or on behalf of the defendant is a matter of any significant relevance.
Did the Plaintiff act promptly and reasonably?
63According to Mr Griffiths’ affidavit in support of this application:
“The most significant reason for the delay in the commencement of the current proceeding was that by reason of instability of my injuries, impacting particularly upon the assessment of my entitlement to damages, meant that proceedings against the Defendant could not sensibly have been resolved at trial at an earlier point in time.”[31]
[31]Mr Griffiths’ affidavit affirmed 29 June 2021
64Mr Griffiths was questioned as to why it took three years from December 2016 when he first consulted Melbourne Injury Lawyers, until 20 November 2019, when the serious injury application was issued. He said:
Q:“Why is it that it took nearly three years for you to put in that serious injury application?---
A:Make sure we had it right first. It may be easy to prove Maurice Blackburn wrong, because I always thought they'd done the right thing by me.
Q:Do you have any explanation as to why it took nearly three years to put in the serious injury application?---
A:Serious injury (indistinct) they waited to see what happened with me; I had a knee taken out in 2014, I had a knee taken out in 2018, I had a hip taken out in 2019. That’s serious injuries, innit?”[32]
(sic)
[32]T31, L2-12
65Over this period, Mr Griffiths said he was concerned about ongoing problems with his left knee which required replacement in July 2018, and then problems with his left hip which required replacement in July 2019.
66Even accepting Mr Griffiths was dealing with this surgery, and that it would have taken his new lawyer, Mr Koteski, some time to obtain, read and digest the Maurice Blackburn file,[33] there is no satisfactory explanation as to why it took as long as it did to issue the serious injury application. Section 23A(3)(e) of the Act makes it clear prompt action is required. Absent any proper explanation, a delay of almost three years is neither prompt nor reasonable.
[33] There is no evidence there was any difficulty or delay in obtaining the file
Conclusion
67Section 23A requires a court to be satisfied it is just and reasonable to extend the limitation period. I am not satisfied it is just and reasonable to extend the time, in particular, given the clear advice provided to Mr Griffiths by Maurice Blackburn, which I am not satisfied was inappropriate or incorrect, in conjunction with the very substantial delay between the accrual of the cause of action and the issue of proceedings, which I am satisfied will create significant general prejudice to the defendant, as well as the failure to provide any acceptable reason as to why it took almost three years from December 2016 to November 2019 for the serious injury application to be issued.
68The application should be dismissed. The plaintiff should pay the defendant’s costs of the application.
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