Harvey v CD & BR McKenzie (Ruling)
[2022] VCC 2155
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CI-22-00019
| MARK SEAN HARVEY | Plaintiff |
| v | |
| CD & BR McKenzie | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne (via Zoom) | |
DATE OF HEARING: | 6 December 2022 | |
DATE OF RULING: | 9 December 2022 | |
CASE MAY BE CITED AS: | Harvey v CD & BR McKenzie (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2155 | |
RULING
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Subject:LIMITATION OF ACTIONS
Catchwords: Negligence – prejudice – whether limitation period should be extended
Legislation Cited: Limitation of Actions Act 1958 (Vic); Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:WCB v Roman Catholic Trusts Corp for the Diocese of Sale (No 2) [2020] VSC 639; Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1; Griffiths v Nillumbik Shire Council [2022] VSCA 212; Tsiadis v Patterson [2001] 4 VR 114;
Ruling: Order extending the period of limitation to the cause of action in the plaintiff’s statement of claim against the defendant to 7 January 2022.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie KC with Mr N Horner | Shine Lawyers |
| For the Defendant | Mr J Angenent | Hall & Wilcox |
HIS HONOUR:
Introduction
1The plaintiff, Mark Harvey, commenced a common law proceeding for pain and suffering damages in respect to an incident suffered in the course of his employment with CD & BR McKenzie (“the defendant”) on 24 July 2012.
2In the common law proceeding, the plaintiff alleges that there was negligence and/or breach of statutory duty on the part of the defendant, which was a cause of his injury, loss, and damage.
3The common law proceeding is subject to the provisions of the Limitation of Actions Act 1958 (Vic) (“the Act”) and, in particular, s5(1), which provides for a six-year limitation period. The six-year limitation period expired on 24 July 2018.
4The defendant has filed a defence in which it raises the fact that the plaintiff’s proceeding is statute barred. There is no dispute that the plaintiff commenced the common law proceeding out of time. The dispute is whether it is just and reasonable to extend the period of limitation.
5The relevant legal principles are not in dispute and were helpfully set out by the parties in their respective written submissions. It is agreed that s23A of the Act is the legislative provision that enables an application to be made to the court and permits the court to extend the limitation period (provided it is “just and reasonable so to do”). Section 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)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 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.”
Evidence/the proceeding
6In support of the application to extend time, the plaintiff relied on three affidavits sworn by him.[1] In addition, he relied on the affidavit of his solicitor sworn 6 July 2022 and the exhibits to that affidavit.[2]
[1]Exhibit P1.
[2]Affidavit of Glen Northway, Joint Court Book (“JCB”) page 8.
7The defendant relies on an affidavit sworn by Mr Colin McKenzie on 23 November 2022,[3] together with affidavits from its solicitor sworn 10 June and 24 June 2022.[4]
[3]Exhibit D1.
[4]Affidavits of Natalie Russell, JCB 78: JCB 90.
8The plaintiff gave oral evidence. Mr Colin McKenzie also gave oral evidence. I have considered the transcript of the oral evidence, together with the other evidence, for the purposes of the Ruling. I shall refer to the evidence to the extent necessary to explain my reasoning.
9In addition to the affidavit material, the parties provided a Joint Court Book containing some other relevant documents, which I have also considered.
10As mentioned, the parties provided written submissions. The oral submissions were made on the basis that the written submissions had been considered by the Court. For the purposes of this Ruling, I have considered the evidence in the context of the written and oral submissions.
A short history
11I shall return to consider the evidence in more detail later in these reasons, but before doing so it is convenient to set out a short history of relevant facts that are not in dispute.
12The plaintiff was born in the United Kingdom in 1987. After finishing school, he completed an apprenticeship and qualified as an electrician. He worked for various employers in the United Kingdom as an electrician before migrating to Australia in late 2011.
13In early 2012 he obtained employment with the defendant, trading as McKenzie Electrical Contractors, from premises in Swan Hill. He was employed as a labourer because his overseas qualification was yet to be recognised but he effectively worked with the defendant as an electrician.
14On 24 July 2012, the plaintiff was working for the defendant at a private property in Swan Hill, to install a split system air conditioning unit. He was working with a co-worker, Mr Damian Caldwell. The plaintiff was using an industrial drill to drill a hole in a concrete wall, when the drill bit caught, causing the drill to swing and strike the plaintiff to the face, with sufficient force to cause him facial fractures (“the incident”).
15The fact of the incident is not in dispute. Further, at least for the purposes of this Ruling, the fact of the plaintiff suffering injury is also not in dispute. There is only limited medical material before the Court. There is no need to refer to it in detail. In a report dated 3 March 2021,[5] Associate Professor Jack Gerschmann sets out the relevant history of the plaintiff’s injuries and his diagnosis.
[5]JCB 115.
16What is very much in dispute is whether the defendant was negligent, a topic I shall turn to, to the extent necessary for the purpose of this Ruling.
17But staying with non-contentious facts, by claim form signed by him on 17 August 2012, the plaintiff made a claim for statutory WorkCover benefits. That claim form was signed by Mr Colin McKenzie, on behalf of the defendant, on 20 August 2012.[6] The claim for compensation was accepted and the plaintiff received statutory benefits, including medical expenses.
[6]JCB 104.
18The plaintiff ceased employment with the defendant in early September 2012, not because of his injury or any unhappiness between the parties but rather because the terms of his visa required him to move employments. Since then, the plaintiff has maintained employment. Since then, the plaintiff has had very little active treatment for his facial injuries. To a large extent he has put up with the consequences or managed them through the use of painkillers.
19In early September 2019, the plaintiff contacted his current solicitors and arranged a telephone appointment. He was then provided with general advice, including advice about the relevant six-year limitation period and the fact that it had expired. His solicitors then commenced collating material for the purpose of a claim. In February 2020 a permanent impairment claim was lodged. That claim was not resolved until approximately 6 April 2021, when Xchanging accepted the plaintiff’s entitlement to an impairment benefit.[7] The plaintiff accepted that impairment benefit on 4 May 2021[8] and then on 16 June 2021[9] lodged a serious injury application on the defendant. A serious injury certificate was granted on 12 October 2021.[10] At the end of the compulsory statutory conference process the writ in this proceeding was issued on 7 January 2022. As mentioned, upon the issue of the writ, the defendant raised as a defence the fact that the period of limitation had expired. None of this is contentious.
[7]JCB 31.
[8]JCB 42.
[9]JCB 46.
[10]JCB 68.
The evidence of the plaintiff
20The plaintiff swore an affidavit in support of the serious injury application and then swore two affidavits in support of the extension of time application. The most comprehensive and relevant affidavit is the one sworn by him on 15 November 2022.[11] In that affidavit he described how he had not had any dealings with the law relating to worker’s compensation or personal injuries while living in the United Kingdom and, as at the date of the incident, was not familiar with the Australian legal system. He described the circumstances surrounding employment with the defendant and the circumstances of the incident. Regarding the incident he said as follows:
“10.At around 1.30pm I was up a ladder drilling a hole in a concrete wall. I was using a Makita brand industrial drill with a diamond tipped drill bit. I had never used that drill before. As I was drilling into the wall, the drill bit caught, causing the drill to swing violently around, striking me on the right side of my face with significant force. I recall tasting and smelling blood and I was in a lot of pain.
11.I immediately stopped work and Damian drove me back to the McKenzie workshop, and then he returned to the job site. I reported the injury to Colin, and he said that he would tell Damian to take that drill out of the van so that no one else could use it. I then walked home, which was a short distance away.
…
13.2 or 3 days after my injury I went in to work to complete an incident report with Colin McKenzie. We sat in his office and spent about 10 minutes or so discussing what happened and how I was feeling. In passing Colin told me that he knew the drill had a faulty clutch, because Damian had told him. During the meeting Colin did not make any notes, nor did he ask me to complete or sign any paperwork.
14.When Colin mentioned the faulty clutch, it made sense to me because I was fully experienced in the use of such industrial drills and basically what happened to me should not have been possible because the clutch on the drill should have engaged to prevent the energy being transferred back along the body of the drill when the drill bit got stuck.”[12]
[11]JCB 140.
[12]JCB 141.
21Regarding the delay in seeking legal advice, the plaintiff said in that affidavit:
“23.In 2019 my then partner suggested that I seek legal advice about my injury because she could see the impact it had on me. I was also concerned that at some point I might opt for surgery, but I wasn’t sure how this would work now that I was living in Queensland. My then partner suggested contacting Shine Lawyers because they were a national law firm and they were acting on behalf of her daughter in relation to a motor vehicle accident claim, and she thought they were good.
24.On 2 September 2019 I spoke by telephone with Adam Roberts, a solicitor with Shine Lawyers, who was in Melbourne. After listening to when and how the injury happened and its ongoing impact on me Adam the explained my rights, including potential common law rights. I recall him telling me that while I might have a viable common law action, the 6-year time limit to bring such an action had expired on 24 July 2018, which came as a shock to me, as not only was this the first time that I understood what common law actions actually involved, but also that there were time limits attached to them.
25.I instructed Shine to act on my behalf and signed and returned the costs agreement that they had sent to me on or about 30 September 2019.
26.By letter dated 6 February 2020 Shine set out my rights and informed me that I could apply for an extension of time to bring a common law action if I qualified as having a serious injury. I instructed Shine to lodge an impairment claim and then make a serious injury application.
27.My impairment claim was dated 1 April 2020. The impairment claim was delayed for several reasons, one of which was Covid-19.
28.Eventually I received a notice of entitlement for the impairment claim, dated 6 April 2021, and I accepted it on 4 May 2021.
29.My serious injury application was dated 16 June 2021.
30.A serious injury certificate for pain and suffering purposes was granted on 12 October 2021.
31.A writ and statement of claim was issued on 7 January 2022.”[13]
[13]JCB 142.
22The plaintiff was cross-examined about the contents of his affidavits. It was put to him that he had made both a worker’s compensation claim, and a motor vehicle accident claim whilst living in the United Kingdom. He strenuously denied the former but agreed that he had been involved in a motor vehicle accident in approximately 2008, although he was a little uncertain about the date, in which he subsequently received payment of medical expenses and for his time off work. He was challenged about the evidence in the affidavit from Mr Colin McKenzie. Relevantly, he was challenged about whether he had a conversation with Mr McKenzie about the incident and the drill on the day of the incident. He maintained that he did. He maintained that there was a discussion about the drill having a faulty clutch.
23The plaintiff appeared to give his evidence in a straightforward and honest manner. Taken in isolation, his evidence was given in a manner that was plausible and did not impugn his credit.
Affidavit of the defendant
24Mr Colin McKenzie swore an affidavit on behalf of the defendant dated 23 November 2022.[14] He joined issue with the plaintiff’s evidence about the reporting of the incident as well as some other ancillary matters. His relevant evidence in the affidavit is as follows:
[14]JCB 145.
“3.The Plaintiff was employed by the Defendant between 5 March 2012 and 7 September 2012 as a labourer.
4.I was travelling overseas in Canada and America between approximately 27 July 2012 to 17 August 2012.
5.I have seen a Worker’s Injury Claim Form (“the claim form”), which stated that the Plaintiff 5 had sustained facial fractures on 24 July 2012 at 1:30pm at 33 Donnington Street Swan Hill. The Worker’s Injury Claim Form states that the Plaintiff reported the injury to me on 24 July 2012. This is not correct. I believe the injury was only reported to me by the Plaintiff after I returned from travelling overseas.
6.I do not believe I or anyone else associated with the Defendant completed an Employer Injury Claim Report form. I cannot locate such a form in the records of the Defendant.
7.I have been shown the Plaintiff’s affidavit dated 15 November 2022 served in this application. At paragraphs 10 and 13, the Plaintiff alleges conversations occurring between him and I at the Defendant’s premises on 24 July 2012 and again two or three days later. In response, I say:
(a)These alleged conversations did not occur. I believe the injury was only reported to me by the Plaintiff after I returned from travelling overseas.
(b)At no stage did I have a conversation with the Plaintiff about the drill being defective.
(c)To this day, I have no knowledge of any defect with the drill such is alleged by the Plaintiff.
(d)The drill continued to be used by its owner, Damian Caldwell and others regularly until approximately 2015 when it ceased to be used.
(e)The drill only ceased to be used as there were newer drills available which were cordless and battery operated.
8.I believe the Plaintiff returned to work on 8 around 20 August 2012 on full preinjury duties and hours. He then resigned effective 7 September 2012 due to obtaining employment elsewhere and I believe he left on good terms.
9.I refer to paragraph 5 of the Plaintiff’s affidavit dated 15 November 2022 where he says he has not had any dealings with the law relating to workers’ compensation or personal injuries in the UK. In response, I say:
(a)I had a discussion with the Plaintiff after he commenced employment with the Defendant where he advised me that:
(i) He had sued his previous employer in the UK after injuring himself when he was taking out an air conditioning duct or a flu pipe or similar item.
(ii) He received something like £25,000 in compensation for his injuries.
(iii) As a result of this, he had difficulties obtaining documents from that UK employer to support his application for registration as an electrician in Australia.
(b)In another discussion between the Plaintiff and I after he commenced employment with the Defendant, he told me:
(i) He had also been involved in a motor vehicle accident while he was in the [sic] Australia or UK for which he received compensation.
(II) He received something in the tens of thousands of pounds, which was apparently for damages to his vehicle and for some form of personal injury.
10.In relation to the issue of documents in the possession of the Defendant relevant to the present litigation:
(a)Neither I nor anyone else associated with the Defendant was approached by any investigators arranged by the insurance company handling the Plaintiff’s WorkCover claim dated 17 August 2012.
(b)I only became aware of the present litigation when contacted by Hall & Wilcox on or about 14 July 2021.
(c)I have been asked to look for documents relevant to the present litigation, including claim forms, personnel files, training records, job descriptions, incident reports, pay records, invoices for works rendered, an invoice for the drill and service records.
(d)To date I have only been able to locate limited documents. Now produced and shown to me at the time of affirming this my affidavit and marked with the letters “CM1” are all the documents now in the possession of the Defendant relevant to the present litigation.
(e)Prior to 24 July 2012 there was an incident report book which we retained at our premises to record injuries and incidents at the workplace. This book cannot now be located, and I cannot say whether the incident on 24 July 2012 was recorded in the exercise book.[15]
[15]JCB 145.
25During cross-examination and in response to questions from the court, Mr McKenzie confirmed that Mr Damian Caldwell was working with the plaintiff on the day of the incident and in fact Mr Caldwell continued to be employed by the defendant.[16] Mr McKenzie also said that he had inspected the drill with Mr Caldwell after the plaintiff’s injury and no defect was found with it. He said further that the drill continued to be used until it was replaced by more modern equipment, but he believed that Mr Caldwell still owned the drill and used it from time to time.
[16] Transcript (“T”) 53, Lines (“L”) 13-17.
26During cross-examination, Mr McKenzie “stuck to his guns” despite being a little vague about dates. He said that his belief was the plaintiff did not discuss the incident with him until after his return from Canada and that most likely explained why he signed the claim form on 18 August 2012.
27Mr McKenzie also gave evidence, albeit limited, about the fact that the defendant ordinarily kept an incident book, but no relevant incident book could be located.
28Taken in isolation, Mr McKenzie also impressed as an honest witness, even if he was vague about some dates. He appeared to give evidence as best he could, and his vagueness is not unexpected in circumstances where he was not approached to provide information about the incident until after the plaintiff had made the serious injury application. In my opinion, his credit was not impugned. And, as highlighted by counsel for the defendant, Mr McKenzie was not challenged in cross-examination about his affidavit evidence regarding conversations with the plaintiff about previous compensation claims in the United Kingdom.[17] It was submitted on behalf of the defendant that this omission in cross-examination was significant and should enable the Court to accept Mr McKenzie’s evidence more readily.
[17] T 65 L 9-13.
29It is apparent that there is conflict in some parts of the evidence between the plaintiff and Mr McKenzie. It is unnecessary to resolve that conflict for the purpose of this Ruling. Of course, it is the plaintiff who has the evidentiary onus to persuade the court that it is just and reasonable to extend the period of limitation. Mr McKenzie’s credit was not impugned and, in that respect, the plaintiff did not shift the evidentiary onus in his favour. But ultimately, little turns on this issue for the purposes of this ruling. That is because on the critical issue of the plaintiff’s knowledge of the limitation period he was also not challenged. It was not suggested that he knew of the six-year limitation period and chose to do nothing before he consulted Shine Lawyers in September 2019. There was a ‘joust’ about compensation claims he may have made in the UK, but it did not proceed beyond a ‘joust’. It was not suggested that the plaintiff had an intimate knowledge of common law principles or limitation periods regardless of any previous claims.
30But what did become obvious during Mr McKenzie’s oral evidence is that the issue of “specific” prejudice to the defendant is one that effectively fell away. Mr McKenzie did not suggest that he had no knowledge of the incident; the drill; or the circumstances in which the plaintiff was injured. In fact, his evidence was quite the opposite. He gave clear evidence of having discussed the drill with Mr Caldwell and having inspected it, only to find that it was working properly. Mr McKenzie did not suggest that some vital piece of evidence would have been contained in the missing incident book. In fact, his evidence that the incident book was no more than an ‘exercise book’ that he had been told he should have available, suggests it was a rudimentary document at best and far from a source of detailed accident investigations. The probability from the evidence is that it would have contained nothing more than what was described in the plaintiff’s claim form.
31It is relevant for the purposes of an extension of the limitation period that the defendant is able to get a fair trial. The relevant test is whether the defendant is able to have a fair trial, not a perfect one.[18] Here, the defendant still has access to relevant witnesses and to the drill. The lack of the incident book does not appear relevant to the issue of a fair trial. I consider that the defendant is well and truly able to have a fair trial.
[18]WCB v Roman Catholic Trusts Corp for the Diocese of Sale (No 2) per Keogh J [2020] VSC 639 at paragraph [204].
Legal principles
32Turning then to consider the balance of the relevant legal principles and again noting that the principles are not in dispute, first, the plaintiff bears the onus to establish that it is just and reasonable to order the extension of the relevant limitation period applicable to his common law proceeding.
33Second, in determining whether the plaintiff has discharged his onus, I am required to take into account all of the circumstances of the case, and to synthesise all of the matters required to be taken into account by s23A(3) of the Act.
34Third, as mentioned, in my view the defendant is more than capable of having a fair trial.
35Fourth, I accept as set out in the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor[19] that, as time goes by, relevant evidence is likely to be lost. I accept that there is a purpose in limitation periods, including to enable parties to arrange their affairs and utilise resources on the basis that claims can no longer be made against them. As was recently said in Griffiths v Nillumbik Shire Council[20]:
“[66]To put it bluntly, and contrary to what appears to have been the perception of Mr Griffiths and his lawyers after 2016, a limitation period in a personal injuries claim, or in a proceeding more generally, is not just some easily movable line in the sand. Rather, it is a formidable hurdle which can only be overcome by the applicant satisfying the test laid down by the relevant extension of time provisions.”
[19](1996) 139 ALR 1.
[20][2022] VSCA 212.
36Finally, dealing with legal principles, in the resolution of this application, I accept that the approach to it is as set out by Buchanan JA in Tsiadis v Patterson,[21] namely that the Court must synthesise a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the plaintiff bears the onus of persuading the Court that it is just and reasonable to extend the limitation period.
[21][2001] 4 VR 114 at paragraph [31].
Extension of time: s23A of the Limitation of Actions Act 1958 (Vic)
(a) The length of, and reasons for, the delay on the part of the plaintiff
37The defendant submitted that the delay from 24 July 2012 until the plaintiff attended his solicitors in September 2019 is inordinate. I do not agree. The delay is approximately 15 months from the expiry of the limitation period. As fairly conceded by counsel for the defendant, once the plaintiff consulted solicitors and was made aware of the limitation period, he acted promptly to lodge the impairment benefit application and then the serious injury application. It is agreed that because of the provisions of the Workplace Injury Rehabilitation and Compensation Act 2013, the plaintiff could not commence the common law proceeding until he had concluded the impairment benefit claim and until he had navigated the serious injury process. The practical effect of that concession, consistent with the statutory provisions, is that the period after September 2019 should be disregarded in considering this issue of inordinate delay.
38That is not to say that the length of delay is minor. But the issue of delay must, in my view, be assessed in all the circumstances of the case and in light of the plaintiff’s evidence that he was ignorant of the six-year limitation period until he consulted solicitors.
39I also accept his affidavit evidence that it was only when his then partner mentioned that he should see solicitors that he understood there might be the possibility of some form of claim. This is not a scenario in which the plaintiff was well aware of his rights and chose to do nothing. Further, this must also be seen in the context of his evidence that his injuries – apart from some slow deterioration – have essentially been stable since the incident. The tenor of his evidence is that he resigned himself to the fact that he was stuck with the consequences from the injury, until it was brought to his attention that he might have the capacity to do something about it. I accept that evidence.
40So while there is obviously a delay, all things considered, I do not consider it to be inordinate.
(b) The extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant
41As already touched on, I do not accept that this is a case where there is likely to be specific prejudice to the defendant such that it cannot obtain a fair trial. The relevant witnesses are still available and seemingly have clear evidence to give. True it is that the incident book is missing, but equally there is no direct evidence that the plaintiff (or anyone else from the defendant) ever participated in a recording of the incident in an incident book. There is no evidence from either party that tends to the conclusion that some critical evidence would have been recorded in the incident book, which cannot now be recalled. This is not a situation where some critical document is missing.
42There is of course prejudice in the general sense by reason of the delay. But perhaps somewhat remarkably all of the witnesses are still alive, with a memory of the incident and in fact, the offending [sic] drill is still available for inspection. So, while I accept that there is general prejudice due to the delay, this is not a situation where that of itself is a relevant reason to refuse to extend the period of limitation.
(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
43This provision does not appear to be relevant.
(d) The duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action
44This provision does not appear to be relevant.
(e) The extent to which the plaintiff acted promptly and reasonably once he knew that the act or the 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
45I have already discussed the evidence leading to the plaintiff seeking legal advice in September 2019. There is no suggestion that since then he has acted in any way other than promptly and reasonably in pursuing his potential entitlements.
(f) The steps, if any, taken by the plaintiff to obtain medical, legal or other expert evidence and the nature of any such advice he may have received
46This section also collapses with some of the discussion earlier in these reasons. But as conceded in closing submissions, this is not a situation in which the defendant is prejudiced through a lack of medical material. The plaintiff suffered facial fractures as assessed by Associate Professor Gerschmann. His evidence is that his condition has essentially been stable since the incident. The defendant is still able to obtain its own medical assessment of the plaintiff, should it wish to do so.
General considerations and a resolution of the application
47The factors set out in s23A of the Act are not exhaustive. The decision to extend the period of limitation is to be made based on all the relevant circumstances of the case.
48I consider it relevant that the plaintiff had a frank injury in a discrete incident. He has suffered facial fractures with ongoing consequences. The injury appears to be clear and well documented.
49I accept that the plaintiff was ignorant of his legal rights until approximately September 2019. Since then, he has acted promptly and reasonably to pursue his potential statutory and common law entitlements. This is also a relevant consideration.
50I reject the submission that there is specific prejudice to the defendant, other than the fact that the incident book is missing. But as mentioned, I do not accept that to mean that the defendant cannot now get a fair trial. Indeed, given the clear evidence from Mr McKenzie about his inspection of the drill and discussions with the co-worker, it may be that it is the plaintiff who is disadvantaged by the missing incident book. In any event, for the purposes of this ruling, I do not accept that there is specific prejudice to the defendant such to refuse an extension of the limitation period. Again, this is a relevant consideration.
51There is force in the submissions of the defendant that limitation periods have a purpose, are a formidable hurdle and are not just some easily moveable line in the sand. Having said that, the line is also not one that is fixed. The question is whether it is just and reasonable to move it. Having synthesised all of the evidence and circumstances of this proceeding, in my view that line should be moved so that the plaintiff is entitled to continue with the common law proceeding.
Conclusion
52Having synthesised all relevant factors, I am of the opinion that it is just and reasonable to extend the period of limitation.
53At the risk of repetition, in summary, I conclude that the absence of documentary evidence in the incident book (if it ever existed) is not such so as to create a situation whereby the defendant cannot receive a fair trial. Mr McKenzie and the co-worker are still available, as is the drill. Not only can the defendant get a fair trial, based on Mr McKenzie’s evidence, it can have a fair fight at the trial. The plaintiff was ignorant of the six-year limitation period until he was prompted to seek legal advice in September 2019. Since then, he has acted reasonably and promptly to advance things. The defendant is able to understand the injuries alleged to have been suffered and to investigate them further should it choose to do so. These are all relevant factors that I have synthesised to arrive at my conclusion.
54There will be an order extending the limitation period to the causes of action set out in the plaintiff statement of claim against the defendant to 7 January 2022.
55I will hear the parties as to the appropriate orders to make, including in respect to costs.
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