Iliov v Trinity Grammar School Kew (Ruling No 2)
[2025] VCC 1458
•17 October 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-22-02310
| LORETTA ILIOV | Plaintiff |
| v | |
| TRINITY GRAMMAR SCHOOL KEW (ACN 004 056 660) | Defendant |
---
JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 June 2025 | |
DATE OF RULING: | 17 October 2025 | |
CASE MAY BE CITED AS: | Iliov v Trinity Grammar School Kew (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1458 | |
RULING
---
Subject:LIMITATION OF ACTIONS
Catchwords: Limitation of actions – extension of time application – workplace injury – specific incident – course of employment
Legislation Cited: Limitation of Actions Act 1958 (Vic), s5(1), s23A; Wrongs Act (Vic), s14B
Cases Cited:Iliov v Trinity GrammarSchool [2024] VCC 1150; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Winter-Cooke v Winter-Cooke [2022] VSCA 264; Tsiadis v Patterson (2001) 4 VR 114; WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2) [2020] VSC 639; Davies v Nilsen [2015] VSC 584; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517; Griffiths v Nillumbik Shire Council [2022] VSCA 212; Alcan Gove Pty Ltd v Zabic (2015) 257 CLR 1; WardleyAustralia Ltd v Western Australia (1992) 175 CLR 514; Drew v Patricks Stevedores Holdings Pty Limited (No 2) [2017] VSC 352; Tregilgas v Victorian WorkCover Authority (Ruling) [2021] VCC 1780; Karatzidis v Victorian Railways Commissioners [1971] VR 360; Bell Radiology v McGaw (Unreported, VSCA, 7 February 1996, BC9600138); Collopy v Parks Victoria [2024] VCC 159; Basile v Pugh [2024] VSCA 280; Arisoy v Yoogalu Pty Ltd [2012] VSC 631; Transport Accident Commission v Murdoch [2020] VSCA 98; Delai v Western District Health Service [2009] VSC 151
Ruling:Application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison KC with Ms S Fernando | Just Injury Lawyers |
| For the Defendant | Mr A D Clements KC with Ms M Williams | MinterEllison |
HER HONOUR:
Introduction
1This proceeding has a long history which is summarised below.
2In June 2022, the plaintiff, Loretta Iliov, issued a common law proceeding for both pain and suffering and economic loss damages with respect to injuries to her spine (and consequential psychological sequalae) that she alleged she sustained in a specific incident on 2 October 2002 (“the October 2002 incident”) in the course of her employment as a hospitality assistant, kindergarten aide and a boarding house worker employed by Trinity Grammar (“the 2002 claim”). No description of the October 2002 incident was pleaded.
3In paragraph 10 of the Defence filed on 29 June 2022, the defendant pleaded that the cause of action alleged in the plaintiff’s Statement of Claim had accrued more than six years before the proceeding was issued and was barred by s5 of the Limitation of Actions Act 1958 (Vic) (“the Act”).
4On 28 August 2023, the plaintiff issued a Summons seeking the following orders:
“1.Under s23A of the Limitation of Actions Act 1958, the plaintiff is granted an extension of time to 17 June 2022 to commence proceedings for the recovery of damages in respect of injuries sustained throughout the course of her employment with the defendant and on or around 2 October 2002 [‘the extension application’)] and
2. Paragraph 10 of the defendant’s defence be struck out [‘the strike out application’].”
5The hearing of the Summons was delayed. On 21 August 2024, Judge Tsikaris granted the plaintiff leave to file and serve a proposed Amended Statement of Claim (“ASOC”).[1]
[1]Iliov v Trinity Grammar School [2024] VCC 1150
6The proposed ASOC amended paragraph 5 to include a “course of employment claim” as follows:
“As a consequence of an incident which occurred on or about 2 October 2002, when the Plaintiff fell which placed undue strain upon her upper body whilst man[o]euvering a trolley downstairs, and thereafter throughout the course of her employment when the Plaintiff was required to regularly cart food in and out of the hospitality department using the trolley or by manually handling heavy foodstuffs, the Plaintiff continued to place undue strain upon her upper body, and in consequence, the Plaintiff sustained injury (‘the injury’).”
(emphasis in original.)
7An ASOC was filed on 22 August 2024. In addition to the amended paragraph 5, it included:
· allegations of breaches of the Occupational Health and Safety (Manual Handling) Regulations 1999;
· allegations of breaches of the Occupational Health and Safety (Manual Handling) Regulations 2007;
· allegations of breaches of the Occupational Health and Safety (Manual Handling) Regulations 2017; and
· unparticularised allegations of breaches of s14B of the Wrongs Act 1958 (Vic) (“the Wrongs Act”).
8Although the ASOC goes beyond what was ordered by Judge Tsikaris by including allegations of breaches of various Occupational Health and Safety (Manual Handling) Regulations and alleging breaches of s14B of the Wrongs Act, neither party addressed the Court on this point.
9The defendant filed a Defence to the ASOC dated 24 March 2025 and an Amended Defence to the ASOC dated 13 June 2025. It is not apparent to me why two Defences to the ASOC were filed.
10In the Amended Defence to the ASOC, the defendant specifically pleaded:
“13.Further, or alternatively, any cause of action arising out of an incident on or about 2 October 2002 alleged in paragraphs [5], [7], [7A] and [10] of the amended statement of claim accrued more than six years before this proceeding was issued and is barred by section 5 of the Limitation of Actions Act 1958 (Vic).
14.Further, or alternatively, any cause of action arising out of the plaintiff’s course of employment alleged in paragraphs [5], [7], [7A], [8],
[9]and [10] of the amended statement of claim accrued more than six years before this proceeding was issued and is barred by section 5 of the Limitation of Actions Act 1958 (Vic).”
11The extension of time application was not argued before Judge Tsikaris.
12The plaintiff’s Summons seeking the extension of time was heard on 17 June 2025. Mr Harrison KC and Ms Fernando appeared on behalf of Mrs Iliov, and Mr Clements KC and Ms Williams appeared on behalf of the defendant.
13The Court was informed that the plaintiff’s strike out application was not being pursued.
14The subsequent claim was described by the plaintiff as a “defective work process” claim,[2] or a “course of employment“ claim. It is not a gradual process claim.
[2]See: Outline of Plaintiff’s Submissions, paragraph 19
15According to paragraph 5 of the ASOC, the plaintiff alleges she sustained injury as a consequence of an incident which occurred on or about 2 October 2002. It is further alleged that after that event, throughout the course of her employment, the plaintiff was required to regularly cart food in and out of the hospitality department using a trolley or by manually handling heavy foodstuffs which placed undue strain upon her upper body.
16On the pleading, it is clear that the plaintiff alleges that the genesis of the course of employment claim started with the specific incident on 2 October 2002 and not when she commenced employment in January 2000.
17The defendant submitted that other than the October 2002 incident, there was no medical evidence to suggest that there had been any other incident which had caused injury to the plaintiff.
18The plaintiff made no submissions on this point.
19I accept the defendant’s submission, having reviewed the medical reports tendered in this case.[3]
[3]Reports of Dr To dated 2 April 2010 (Defendant’s Exhibit D15) and 26 May 2010 (Defendant’s Exhibit D16); Report of Dr Khan dated 4 May 2023 (Defendant’s Exhibit D17); Report of Mr Lau dated 10 May 2023 (Defendant’s Exhibit D18); Report of Dr Mutton dated 18 June 2008 (Defendant’s Exhibit D19); Report of Dr Bowles dated 6 January 2010 (part of Plaintiff’s Exhibit P2)
20For the reasons set out below, I find that the cause of action relating to the 2002 claim accrued on 2 October 2002 – which was the date of the initial injury.
21Further, I have assumed that the cause of action relating to the course of employment claim also accrued on 2 October 2002.
Short history
22I shall consider the evidence in more detail later in these reasons, but before doing so, it is convenient to set out a short history of the relevant facts which are non-contentious.
23The plaintiff is now aged sixty-five. She was married and had four children, who were born in June 1980, January 1983, March 1986 and August 1992. The relevance of these dates will appear later in this judgment.
24The plaintiff completed Form 4 at Fitzroy High School. In the past she had worked as a ward assistant, a medical secretary, hospitality assistant and a kindergarten aide. She divorced in 1996 and her mother moved in with her.
25The plaintiff commenced work at Trinity Grammar in January 2000 as a hospitality assistant. Her mother died in 2004.
26On 3 December 2002, an entry was made in the defendant’s Register of Injuries. The document was also called an Incident Report form – it referred to an incident on 2 October 2002 which occurred while the plaintiff was pulling a trolley down steps. It referred to soft tissue injury to the right elbow – which was corrected to left elbow.[4]
[4]Part of Plaintiff’s Exhibit P2
27The plaintiff completed a Claim for Compensation form dated 16 August 2005 in relation to the October 2002 incident. The date of injury was identified as 2 October 2002. The injury was described as “muscular strain to left arm near elbow region”.[5] In the section of the form which asked, “How exactly were you injured?” the plaintiff wrote “The weight of the trolley pulled my arm in an awkward position as the trolley overturned”.[6]
[5]Defendant’s Exhibit D6
[6]Defendant’s Exhibit D6
28Neither the Register of Injury form or the Claim Form mentioned a neck injury.
29The plaintiff underwent CT scans of her neck on 25 July 2003, 7 January 2008 and 25 February 2010 – the reasons why the scans were commissioned were not stated. The Court has inferred that the scans were commissioned in relation to the 2002 claim.
30The plaintiff sustained a separate injury to her legs in the course of her employment on 14 November 2016 (“the November 2016 injury”). She attended Adviceline Injury Lawyers in February 2019 and was given legal advice about the November 2016 injury.
31The plaintiff had spinal surgery on 18 December 2019 in the form of a discectomy and fusion of C5/6/7. She did not return to work after the surgery.
32After the surgery, she consulted her current lawyers, S and V Lawyers, in February 2020. There has been no explanation as to why she changed lawyers from Adviceline Injury Lawyers to S and V Lawyers or why there was a four-year gap in instructing lawyers.
33The plaintiff instructed her current lawyers to pursue a common law claim relating to the November 2016 injury.
34On 31 August 2020, she signed a Release settling her common law claim relating to the November 2016 injury.
35She was formally retrenched by the defendant in October 2020.
What is in dispute?
36The proceeding is subject to the provisions of the Act and, in particular, s5(1), which sets a six-year limitation period.
37Two separate questions arise:
· When did the relevant causes of action accrue?
·Is just and reasonable to extend the period of limitation for either or both claims?
What are the legal principles?
38The application is made under s23A of the Act which permits the Court to extend the limitation period, provided that it is just and reasonable to do so, subject to regard being had to all the circumstances of the case including the non-exhaustive list of matters set out at s23A(3).
39Section 23A(3) of the Act 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.”
40The fundamental rationale and purpose of limitation periods is set out in the oft-cited statement of McHugh J in Brisbane South Regional Health v Taylor,[7] and was summarised as follows by the Court of Appeal in Winter-Cooke v Winter-Cooke:[8]
“The first observation is that there is a general public interest in ensuring that litigation is brought, prosecuted and resolved in a timely manner. A statutory limitation period represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within that period, notwithstanding that the enactment of that period may result in a good cause of action being defeated. The discretion to grant an extension of time should be seen as requiring the person applying for it to show that his or her case is a justifiable exception to the rule that the welfare of society is best served by the limitation period in question. Statutory limitation periods advance the administration of justice because they ensure that members of the public are able to order their personal and business affairs on the basis that, once a limitation period has expired, their rights and interests are no longer at risk of litigation. … .”[9]
(Footnotes omitted.)
[7](1996) 186 CLR 541 (“Brisbane South”) at 552-553
[8][2022] VSCA 264 (“Winter-Cooke”)
[9]Winter-Cooke at paragraph [89] (per Kyrou and Macaulay JJA, J Forrest AJA)
41The plaintiff bears the onus of establishing that it is just and reasonable to extend the relevant limitation periods applicable to her common law proceedings.
42In determining whether the plaintiff has discharged her onus, the Court is required to take into account all of the circumstances of the case and to synthesise all of the relevant considerations, including those set out in s23A(3)(a) to s23A(3)(f) (inclusive) of the Act.[10]
[10] Tsiadis v Patterson (2001) 4 VR 114 (“Tsiadis”) at paragraph [33] (per Buchanan JJA)
43The question whether the defendant is able to have a fair trial is a relevant consideration. The test is whether a defendant is able to have a fair trial, not a perfect trial.[11] In Davies v Nilsen,[12] J Forrest J cited the following passage from his earlier decision in Gordon v Norwegian Capricorn Line (Australia) Pty Ltd:[13]
“… in determining whether there is significant prejudice, what is to be considered is whether there can be a fair trial. A fair trial does not mean an ideal trial, but one that is ‘acceptably fair’. A Court has to make an assessment of what might occur at the trial in terms of whether an acceptably fair trial can be had. The applicant must satisfy the Court that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely. ... .”
[11]WCB v Roman Catholic Trusts Corporation for the Diocese of Sale (No 2) [2020] VSC 639 per Keogh J at paragraph [204]
[12] [2015] VSC 584 (“Davies”) at paragraph [108]
[13] [2007] VSC 517 at paragraph [79]
44An extension of time is not to be granted easily. As the Court of Appeal said in Griffiths v Nillumbik Shire Council:[14]
“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.”
(Emphasis added.)
[14][2022] VSCA 212 (“Griffiths”) at paragraph [66]
When did the cause of action accrue?
45The High Court held in Alcan Gove Pty Ltd v Zabic[15] that –
“… actual damage or injury is an essential element of a cause of action in negligence for personal injury.”[16]
[15] (2015) 257 CLR 1
[16]Williams v Milotin (1957) 97 CLR 465 at 474; [1957] HCA 83; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 526 per Mason CJ, Dawson, Gaudron and McHugh JJ; [1992] HCA 55; Harriton v Stephens (2006) 226 CLR 52 at 102 [161] per Hayne J, 115 [218] per Crennan J (Gleeson CJ, Gummow and Heydon JJ agreeing at 58 [1]-[4], 113 [208]); [2006] HCA 15.
46The High Court established in Wardley Australia Ltd v Western Australia[17] that in negligence claims for pure economic loss, the cause of action accrued when damage is first suffered, even though damage may continue to accrue. In such cases, time commences to run when the damage is first suffered irrespective of whether the plaintiff has discovered the loss. This issue has remained contentious in more recent years with respect to personal injury claims.
[17] (1992) 175 CLR 514 (“Wardley”) at 531 and 540
47It is instructive to note that Wardley was not a personal injury case. Wardley was a case dealing with misleading and deceptive conduct under the Trade Practices Act (Cth).There was no capacity to make an application to extend time. There was no equivalent of Section s23A.
48Course of employment claims involve a variety of possible scenarios in relation to the order in which breach/es and injury/ies are alleged to have occurred. These scenarios may introduce complexities into the issue of an appropriate accrual date. For instance, it may be pleaded that the injury/the damage appeared at some time after the alleged initial breach. It may be alleged that there were multiple injuries over the course of employment, with some occurring in a discrete incident, and others alleged to have arisen as a result of the system of work. Further, different particulars of breach may be alleged to have occurred at different times.
49In Drew v Patricks Stevedores Holdings Pty Limited (No 2),[18] the approach taken was that the cause of action accrued when the plaintiff first suffered injury.
[18] [2017] VSC 352 (“Drew”)
50It is worth noting that in Drew, the plaintiff was employed as a stevedore from 2000 until 2014. He first complained of lower back pain and neck pain as a result of his work in October 2002, with a discrete incident occurring in November 2002 before further discrete incidents and injuries occurred over the following years.
51The plaintiff in Drew argued that he had sustained multiple physical and psychological injuries over a number of years during his employment which should be dealt with as a single cause of action in negligence, but asserted that the cause of action did not accrue until he ceased employment.
The 2002 Claim
52The plaintiff alleges she sustained injury in a specific incident on or about 2 October 2002.
53I find that the cause of action accrued when the specific injury occurred.
54Accordingly, the limitation period expired on 1 October 2008.
The course of employment claim
55The plaintiff’s primary position was that the extension application was not strictly necessary as the time commenced “probably, when all the evidence comes in, probably when she [the plaintiff] ceases work or very shortly before she ceases work and goes off and has the procedure”.[19]
[19]T143, L29 – T144, L1
56To put it slightly differently, the plaintiff’s primary position was that the cause of action did not accrue until late 2019.
57The plaintiff submitted that the analysis in Drew was wrong and that the Court should follow the decision of Tregilgas v Victorian WorkCover Authority (Ruling).[20]
[20][2021] VCC 1780 (“Tregilgas”)
58Tregilgas was a case in which the plaintiff sought to strike out part of the defendant’s defence. In that case, the plaintiff pleaded that he had sustained injury throughout the course of his employment due to arduous physical work. The Court in that case determined that the plaintiff’s cause of action did not become complete until February 2014 when he ceased employment. The Court was referred to a number of cases but was not referred to Drew’s case.
59In the strikeout application of Tregilgas’ case, the argument before his Honour Judge Misso was whether a gradual process injury could be pleaded as a single cause of action and whether such cause of action was divisible. His Honour was not dealing with an extension of time application. This of itself is sufficient to dispose of any argument as to whether it should be followed if it was found not to be in conformity with other decisions.
60I reject the plaintiff’s submission that the analysis in Tregilgas should be preferred.
61There have been a number of cases[21] which have determined that course of employment cases are one cause of action.
[21]Karatzidiis v Victorian Railways Commissioners [1971] VR 360; Bell Radiology (A firm) v McGraw (Unreported, VSCA, 10302 of 1993, 7 February 1996, BC9600138); Drew (supra)
62If there is a difference between the cases of Tregilgas and Drew, I prefer the Drew analysis. I adopt what was said in that case:
“If the Court were to accept Mr Drew’s submission that time did not commence to run on his cause of action until the cessation of his employment, the consequence would be that a person suffering multiple injuries over the course of their employment due to the negligence of their employer does not have a complete cause of action until their employment ceases. That simply cannot be so. It would be completely contrary to the well-established principle that a person will have a cause of action in negligence when compensable injury is suffered.” [22]
[22]Drew at paragraph [26]
63For the purposes of this interlocutory application, insofar as the course of employment claim is concerned, I have concerns as to whether the Court is bound by the matters raised in Wardley.
64Both parties took the view that the Wardley approach was appropriate and addressed the Court accordingly. Given this, in an abundance of caution, despite my reservations regarding the application of Wardley in cases such as this, I adopt and endorse the pragmatic approach of Judge Tran in Collopy v Parks Victoria[23] in relation to finally determining limitation issues in an interlocutory proceeding where she declined to make a formal finding as to the actual date of accrual but made an assumption as to when the accrual occurred.
[23][2024] VCC 159
65I have therefore assumed, for the purposes of this interlocutory application, that the cause of action relating to the course of employment claim[24] accrued on 2 October 2002.[25]
[24]The date upon which the plaintiff first sustained injury: Alcan Gove Pty Ltd v Zabic (supra)
[25]Drew at paragraphs [26]-[27] per Ierodiaconou AsJ
What is the relevant delay?
66The plaintiff issued these proceedings on 17 June 2022 – nineteen years and eight months after the accrual of the cause of action relating to the 2002 claim.
67The plaintiff issued the Summons seeking an extension of time on 28 August 2023 – twenty years and ten months after the accrual of the cause of action relating to the 2002 claim.
68Both of these dates represent a very long period of delay.
Evidence
69The plaintiff tendered three Affidavits with exhibits sworn by her on 18 August 2023, 11 December 2023 and 18 October 2024.[26] The plaintiff’s 18 August 2023 Affidavit adopted (and annexed as exhibits) two earlier Affidavits sworn by her on 13 August 2021 and 1 May 2020.
[26] Plaintiff’s Exhibits P2, P3 and P4
70The plaintiff gave evidence and was cross-examined. She was the only witness called.
71In addition, she also tendered an Affidavit from her solicitor, Daniel Vissenjoux, sworn 16 August 2023 with exhibits,[27] a bundle of pleading documents[28] and an Employer Injury Claim Form dated 6 September 2005.[29]
[27] Plaintiff’s Exhibit P1
[28]Plaintiff’s Exhibit P5
[29]Plaintiff’s Exhibit P6
72The plaintiff handed up an Outline of Plaintiff’s Submissions dated 18 June 2025.
73The defendant tendered two Affidavits from solicitors, Jared McCunnie, affirmed 4 September 2023, and Casey Duong, affirmed 20 December 2024, together with exhibits,[30] as well as, inter alia, interrogatories for the examination of the Plaintiff and her Answers,[31] various pieces of correspondence, medical certificates and reports, radiology and extracts from clinical notes.
[30] Defendant’s Exhibits D2 and D3
[31]Defendant’s Exhibit D1
74For the purpose of this ruling, I have considered all the evidence in the context of the oral submissions.
Evidence of the Plaintiff
75In her Affidavit sworn 18 August 2023, the plaintiff confirmed that she had reviewed her Affidavits of 1 May 2020 and 13 August 2021 and that they were true and correct. She relied upon the contents of those Affidavits to support the extension of time application.
76In her Affidavit sworn 13 August 2021, the plaintiff described the October 2002 incident as follows:
“On or about 2 October 2002, I parked at the carpark near the entrance to the school. I removed my trolley from the car and then put groceries onto the trolley. The groceries were for a function that day. ….”[32]
[32] Plaintiff’s Exhibit P2, Plaintiff’s Amended Court Book 16, paragraph [7]
77In addition to the matters set out above under the heading “Short history”, the plaintiff said that in the period following the incident in October 2002, she was supporting her three younger children whilst they were completing secondary school and obtaining tertiary qualifications. She also said that her eldest child (daughter) had significant psychiatric issues and that she looked after her grandchildren from time to time. She also said that she had gynaecological issues over the years which required medical review.
78In her Affidavit sworn 18 August 2023, the plaintiff made the positive assertion that the October 2002 incident occurred on 2 October 2002. She said that she had made a claim for compensation in August 2005 and that her claim was actively managed. She said that she had attended medico-legal examinations in June 2008 and January 2010.
79In cross-examination, the plaintiff said:
· the first time she suffered injury was on 2 October 2002;
· she was unable to recall the details of the function she was preparing for on 2 October 2002;
· she could not recall whether it was an afternoon or evening function or whether the function was at some other time;
· when shown the defendant’s school calendar for 2002 which did not record a function scheduled for 2 October 2002, she said, “So there was no function, but I could have made an error in the dates”;[33]
· if there was no function on 2 October 2002, she said she “would have been carting all the groceries for all the classes that were going to start”;[34]
· when pressed as to when the incident actually occurred, she said, “It would have occurred the date I said that it occurred; around that date”;[35]
· she reported the incident to John Darbyshire, payroll officer, on the day it happened;
· she suggested that she should have been provided with certain keys so she could have obtained access via a loading bay;[36] and
· she said she had to enter the building in the way she did with the trolley because her access to the main door of the building was restricted by a number of maintenance people performing work in the entrance area/hallway of the building.[37]
[33]T9, L13-14
[34]T7, L14-16
[35]T10, L20-21
[36]These allegations were unpleaded but were contained in the Plaintiff’s Answers to the Defendant’s Interrogatories: Defendant’s Exhibit D1
[37]These allegations were unpleaded and were partly contained in the Plaintiff’s Answers to the Defendant’s Interrogatories: Defendant’s Exhibit D1
80There was further cross-examination about entries in her General Practitioner’s (“GP”) notes which showed that she had attended her GP, Dr To, on three occasions between 3 October 2002 and 17 October 2002 and there was no record of her reporting any specific incident at work. She said:
“That I thought because of my situation at work as in being afraid to say something I just soldiered on and thought I will - this will - it'll be fine, it's - I'm not gonna (sic) report anything as in to my doctor I'm not going to say anything, it'll be fine, it'll just go away.”[38]
[38] T22, L27 – T23, L1
81The plaintiff confirmed that she first told Dr To about the specific incident on 2 November 2002 and that by early December 2002, she was aware that the October 2002 incident was significant enough to bring to the defendant’s attention and that she continued to suffer from pain in her left arm, elbow and neck in the months and years after the October 2002 incident.[39]
[39]T26, L4-9
82The plaintiff agreed that she had a CT scan of her neck on 25 July 2003 and submitted a Worker’s Compensation Claim Form on 16 August 2005 in relation to the October 2002 incident. She said that the Claim Form was submitted three years after the incident because she wanted to get treatment for her injuries.
83The plaintiff could not recall whether she had attended a lawyer around the time she submitted the Claim Form but later said that she did not go to a lawyer about the October 2002 incident because she: “… didn’t want to stir the boat. I had commitments and I love my job, so I didn’t go to any lawyer.”[40]
[40]T31, L28-30
84The plaintiff accepted that she was certified by her GP as fit for light duties due to the October 2002 injuries in September 2005 and that the certificates covered a period of about four to five months. She agreed that her GP provided her with further light duties certificates for several months in June 2007 and for an unspecified period in 2007. She was adamant that she worked her normal duties despite the certificates.
85The plaintiff agreed that she underwent a further CT scan of her neck in January 2008 and was having physiotherapy for her neck approximately twice per week during this period.
86The plaintiff confirmed that she had ongoing problems with her neck and underwent a further CT scan on 25 February 2010.
87The plaintiff also confirmed that she had suffered a prior work injury in January 1998 when employed by Manningham City Council and had instructed lawyers, Giasoumi Papasavas Zervos, in relation to that claim.
88The plaintiff agreed that since the late 1990s, she was aware that monetary compensation was available to injured workers.[41]
[41]T51, L16-19
89The plaintiff agreed that she had received a letter from Adviceline Injury Lawyers in 2019 explaining that there were time limitations for damages claims (referring to the November 2016 injury). Despite agreeing that she received the letter, she said she did not read it.
90The letter from Adviceline Injury Lawyers was a comprehensive seven-page letter summarising the plaintiff’s instructions and provided advice in relation to the November 2016 claim. It included advice regarding statutory benefits and common-law benefits and stated the following:
“Time limits for the making of a common law damages claim
For injuries which occurred in Victoria, you generally only have six years from the date of injury to pursue a common law claim.
As your injury occurred on 14 November 2016, you have until 14 November 2022 to commence a common law claim.”[42]
[42]Adviceline Injury Lawyers’ letter addressed to the plaintiff dated 19 February 2019 – Exhibit to the plaintiff’s Affidavit dated 18 August 2023: Plaintiff’s Exhibit P2
91The plaintiff confirmed that she had also previously instructed family law lawyers to represent her in family law proceedings.
Affidavits of the Defendant
92The defendant filed two Affidavits:
· Affidavit of Jared McCunnie, solicitor, affirmed on 4 September 2023;
· Affidavit of Casey Duong, solicitor, sworn on 20 December 2024.
93Mr McCunnie deposed that the defendant first became aware of the October 2002 incident when a Register of Injures form was completed on 3 December 2002 and signed by John Darbyshire, payroll officer.
94Mr McCunnie said he had spoken to the following people:
· John Darbyshire – no longer employed by the defendant and retired. He could recall the plaintiff but did not remember the Register of Injures form signed by him on 3 December 2002;
· Rupert Dalley – former head of the defendant’s Hospitality Department. He is no longer employed by the defendant. He was on leave on 2 October 2002 and said it was unlikely that a function would have been arranged in his absence. He maintained that if a function had been arranged, it was likely that external caterers would have been engaged;
· Don McLeish – employed by the defendant from February 2002 until March 2013. Mr McLeish was the temporary replacement for Mr Dalley whilst he was on leave in 2002. He could not recall a function on 2 October 2002;
· Rohan Brown – former teacher who retired in 2023. He was responsible for organising events for the Old Trinitarians. He did not recall an event scheduled for 2 October 2002; and
· Kate Hall – assistant principal – daily administration. She held that position from around 2001. She was responsible for the allocation of keys to staff members.
95Mr McCunnie said he spoke to the witnesses “recently” but did not say exactly when he spoke to them. Given his use of the word “recently”, I have inferred that his discussions took place in mid 2023.
96Mr McCunnie deposed:
· he had been instructed that the defendant had not retained records relating to building works, repairs or maintenance prior to January 2009;
· the plaintiff had made two claims against Manningham City Council relating to an injury of 7 January 1998; and
· the plaintiff was pursuing a total and permanent disability claim in the County Court, and Maurice Blackburn solicitors were acting on her behalf.[43]
[43]The plaintiff was not cross-examined about this claim – accordingly, I have not taken it into account for the purpose of this application.
97Ms Duong also contacted John Darbyshire and spoke to him on 6 November 2024 when he confirmed that he recalled the plaintiff but not the circumstances of the injury. On 18 November 2024, Ms Duong arranged a Zoom call with John Darbyshire as she intended to show him a copy of the Register of Injuries form. John Darbyshire did not attend the Zoom call. In a subsequent telephone conversation, Ms Duong was informed by a person who identified herself as John Darbyshire’s wife that John Darbyshire was unable to assist because he had Alzheimer’s disease.
98In relation to documentation, Ms Duong said that a copy of the defendant’s school calendar for the year 2002 did not show any functions scheduled on 2 October 2002.
99Ms Duong deposed that the defendant had searched for documents relating to:
· the key register for 2002;
· maintenance records for 2002; and
· access records relating to school entrances.
100Ms Doung deposed that no such documents were located.
101In relation to the ”course of employment” claim, Ms Duong noted that she had served a Request for Further and Better Particulars on the plaintiff’s solicitors on 4 November 2024,[44] in which the plaintiff was asked to provide further particulars of paragraph 5 of the ASOC relating to manual handling allegations and, inter alia, details of the allegation of “regularly cart[ing] food in and out of the hospitality department using the trolley”. The request had not been answered.
[44]Part of Exhibit P5
Section 23A(3) considerations
Section 23A(3)(a): The length of and reasons for the delay on the part of the Plaintiff
Plaintiff’s submissions
102The plaintiff submitted she had not been advised of her legal rights regarding the 2002 claim and had not been informed of the six-year limitation period relating to it.
103The plaintiff maintained she did not bring proceedings earlier and was unable to engage in litigation because:
· she feared losing her employment if she made a common law claim;
· she was caring for and then grieving for her mother;
· she was dealing with her daughter’s significant psychiatric issues;
· she was supporting four children – it was suggested that at least one of her children attended the defendant’s school and that she was entitled to a discount on school fees because she was an employee of the defendant; and
· she was dealing with health concerns including rehabilitation for the injury sustained in 2002.
104It was conceded that the plaintiff’s youngest son ceased school in approximately 2010 but it was said that the plaintiff was financially supporting her daughter and her youngest son up to December 2019.
105The plaintiff submitted she was not aware of the severity of her neck injury until she ceased work in December 2019 and had surgery.
106The plaintiff made no further submissions regarding the course of employment claim.
Defendant’s submissions
107The defendant submitted that limitation periods exist and apply even to persons who do not know about them.[45]
[45]Basile v Pugh [2024] VSCA 280 at paragraph [45]
108The plaintiff’s explanations for delay were unsatisfactory, including her explanation for not consulting lawyers until 2020.
109Substantial parts of her evidence were implausible and not credible and some parts were misleading.
110The plaintiff conceded that prior to the October 2002 incident, she was familiar with the process of consulting lawyers about work injuries.
111The plaintiff was aware that she had sustained an injury in October 2002 and had ongoing problems which were significant enough for her to submit a WorkCover claim in 2005.
112Her explanation that she feared losing her job (or that she might be provided with less hours or not promoted) if she complained about her injuries or made a claim was implausible. It was said this was particularly implausible in circumstances where she said that she reported the incident on the day it happened, submitted a Register of Injuries form in December 2002 and had made a formal claim for compensation in 2005 and pursued a common law claim against the defendant for the November 2016 injuries. She accepted that she had been treated no differently by the defendant after she had submitted claims in 2005 and 2016.
113The defendant submitted the plaintiff’s evidence that she feared losing a school fee discount was misleading as she did not have any children at the school by 2010.
114The defendant also said that any concern regarding her daughter’s health did not prevent the plaintiff from working four to five days per week between 2002 and 2019.
Findings on delay
115The plaintiff is an intelligent woman who held responsible positions such as a ward assistant, a medical secretary, hospitality assistant and a kindergarten aide before commencing work with the defendant.
116There is no evidence before the Court that the plaintiff had been made specifically aware of the relevant limitation periods relating to the October 2002 incident, prior to attending upon her current solicitors.
117When considering the plaintiff’s ability to obtain legal advice, the evidence confirmed that she instructed solicitors for other injuries and in relation to family law matters. She pursued a common law claim against the defendant for the 2016 injury.
118She is not an uneducated person ignorant of the law.
119Lack of knowledge of a limitation period is no excuse. The plaintiff took no steps to protect her own interests for many years.
120The plaintiff’s oral evidence regarding the 19 February 2019 letter from Adviceline Injury Lawyers, specifically her evidence that she did not read the letter, was opportunistic and did not reflect well on her reliability.
121I do not accept that she did not read the 19 February 2019 letter from Adviceline Injury Lawyers. I do not accept that she would attend lawyers for the purpose of obtaining advice about her rights relating to the November 2016 incident and then ignore the letter containing that advice.
122It is also inconsistent with what she said in her Affidavit dated 18 August 2023, where she said:
“I consulted with Adviceline Injury Lawyers, now known as Redlich’s Work Injury Lawyers on 6 February 2019 regarding any potential entitlements I may have arising from the Second Incident. Now produced, shown to me and marked ‘LI-9’ is a copy of correspondence I received from Adviceline Injury Lawyers dated 19 February 2019. … .”[46]
[46]Plaintiff’s Exhibit P2, paragraph 27
123There is no suggestion in her Affidavit dated 18 August 2023 that she did not read the letter from Adviceline Injury Lawyers.
124Dealing with each specific explanation in turn:
· There is no evidence supporting the plaintiff’s asserted fear of losing her job – if she held such a fear, I find that it was not rational and was inconsistent with the facts which included her making claims in 2005 and 2016 and remaining in employment;
· The plaintiff’s mother died in 2004. I accept the submission made by the defendant that even if the plaintiff had grieved the passing of her mother for some time after 2004, this was not a reason why she could not seek legal advice – noting that the plaintiff was able to seek and obtain legal advice for other issues in the period after 2004;
· There is no independent evidence regarding her daughter’s psychiatric health. I accept the defendant’s submission that this factor did not prevent her from working for seventeen years; and
· As at October 2002, the plaintiff’s children were aged ten, sixteen, nineteen and twenty-two. At the time of the expiration of the limitation period (October 2008), the plaintiff’s children were aged sixteen, twenty-four, twenty-five and twenty-eight. Whilst a concern about a school fee discount may have been held by the plaintiff during the limitation period as it may have been relevant for her youngest child, it is not a compelling explanation for the delay. There was no evidence that the defendant had ever threatened to interfere with the school fee discount or that it was at risk. I find that her claimed fear of losing a school fee discount is not founded.
· Insofar as the explanation that she “was not aware of the severity of [her neck injury until she] ceased work in December 2019 and underwent an operation” – I find this is not a compelling explanation, as set out in paragraph 81 above, the plaintiff conceded in cross-examination that she was aware in October 2002 that she had hurt her neck, consulted a doctor in December 2002 and accepted that her neck had been an ongoing and constant issue for her from that time on.
125There has been no compelling reason provided to explain why she took no steps relating to her 2002 injury for nearly eighteen years.
126I find it significant that despite the explanations proffered, the plaintiff was not deterred from pursuing the 2016 November claim in a timely way.
127I find that the plaintiff was somewhat cavalier in her approach to the October 2002 incident.
128There has not been a clear explanation for the delay.
129The observations of Macaulay J in Arisoy v Yoogalu Pty Ltd t/a Harvey Norman[47] are relevant. In cases such as this where there has been an unsatisfactory explanation, Macaulay J said:
“Given that an extension of time involves an indulgence, and amounts to an exception to what Parliament has provided to be the general rule, the lack of any clear explanation for the delay, to be weighed in combination with all other factors, is in my view fatal.”[48]
[47][2012] VSC 631
[48]Ibid at paragraph [41]
130Even if I accepted that the plaintiff did not know of the limitation period, she should have acted sooner by seeking legal advice.
131I do not accept the plaintiff’s explanations on delay.
Section 23A(3)(b): The extent to which, having regard to the delay, there is, or is likely to be, prejudice to the Defendant
Relevant principles on assessing prejudice
132In considering the question of prejudice, I have applied the following principles:
· the relevant period of delay for the purpose of assessing prejudice commences from the accrual of the cause of action rather than the expiry of the limitation period;[49]
· it is inherent in the requirement to assess the “extent to which there is or is likely to be prejudice” that the Court must consider not just established prejudice but also potential prejudice. The Court is not limited to considering only prejudice which is more probable than not to occur. Possible prejudice, and the likelihood it will occur, is also a relevant factor; [50]
· there is a general presumption of prejudice that arises when proceedings are commenced outside a statutory limitation period, particularly where there has been a long delay.[51] As said by McHugh J in Brisbane South:
“… sometimes, perhaps more often than we realise, the deterioration in quality [of justice] is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. … 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.”[52]
[49] Transport Accident Commission v Murdoch [2020] VSCA 98 at paragraph [83]
[50] Tsiadis at 120, paragraph [23]
[51] Brisbane South at 556 per McHugh J
[52]Brisbane South at 551 per McHugh J, applied in Delai v Western District Health Service [2009] VSC 151 at paragraph [24]; Tsiadis at 123, paragraph [32]
· there is no requirement on the defendant to identify evidence which has been lost; it is the very nature of the prejudice that it may not be possible to know how much has been lost. This is the presumed general prejudice suffered by the defendant by reason of the delay.
· when a defendant relies upon specific prejudice, it bears the evidentiary onus.[53] If the defendant satisfies that evidentiary onus, the burden rests upon the plaintiff to establish that it is nevertheless just and reasonable to grant an extension of time; and
· the gravity of the prejudice suffered by the defendant may be linked to the question of whether a fair (not perfect) trial can be had.
[53] Brisbane South at 547 and 555-556
133Whilst it is difficult to envisage a circumstance when the Court would grant an extension of time unless satisfied that it was likely that an acceptably fair trial could be had, it does not follow from this that an extension of time should be granted solely on the basis that the Court is satisfied that a fair trial is more probable than not.
Plaintiff’s submissions
134It was conceded that there was general prejudice to the defendant flowing as a result of the passing of time.
135The plaintiff disputed that there had been any specific prejudice and pointed to the following factors:
· the plaintiff verbally reported the incident on the day;
· the plaintiff reported the incident in an Incident Report dated 3 December 2002 (the written submissions refer to this report as being dated 3 December 2022 – which is clearly a typographical error);
· the plaintiff submitted a claim for compensation on 16 August 2025;
· the plaintiff’s claim for statutory benefits was accepted by the employer’s insurer;
· the Court should infer that the insurer had investigated the plaintiff’s claim for compensation with a “sufficient degree of thoroughness to enable it to make a decision to accept that the employer had a liability to pay compensation to the plaintiff in respect of the injuries she suffered in the incident on 2 October 2002”;[54]
· the plaintiff had consulted the same GP from October 2002 to date and the GP’s medical reports and notes were available and the GP was available to give evidence if required; and
· the defendant had been able to contact a number of witnesses (as evidenced by the defendant’s Affidavits).
[54]Outline of Plaintiff’s Submissions, paragraph 19(ii)
Defendant’s submissions
136The defendant has asserted general prejudice as well as specific prejudice by reason of the delay.
137In respect of general prejudice, it was said that the plaintiff’s submission regarding the investigations which would have occurred leading to the acceptance of the WorkCover claim was misconceived, as the nature of investigations for a statutory benefit claim are different from investigations in a negligence claim.
138The defendant pointed to the plaintiff’s oral evidence where she was unable to recall potentially important aspects of the October 2002 event to illustrate its point that the quality of recollection and memory deteriorates over time. The defendant said that this was an example of what had been “lost in the mists of time”.[55]
[55]T112, L30
139The plaintiff’s oral evidence highlighted the specific prejudice faced by the defendant as to whether there was a function on 2 October 2002. It was said that the defendant had been unable to ascertain whether there was any function and whether external caterers were used.
140It was also said that the defendant was not in a position to understand how the plaintiff’s case would be presented at trial given her oral evidence to the Court. There seemed to be a suggestion that the plaintiff was under time pressure on 2 October 2002 and that she had difficulties with access to certain buildings.
141Insofar as the plaintiff may have been saying that the access to the building was made more difficult or restricted because of building or maintenance work, the defendant had not retained any records relating to building or maintenance works prior to 2009.
142There was specific prejudice because the October 2002 incident was not witnessed and whilst the plaintiff asserted that she reported the incident to Mr Darbyshire on the day in question, Mr Darbyshire could not recall that report.
Findings on prejudice
143By the time the proceedings were issued, a period of nineteen and a half years had elapsed since the occurrence of the October 2002 incident.
144In that time, self-evidently, memories would have faded. Relevant documents may have been lost.
145I accept that the defendant has suffered general prejudice by reason of the delay through the presumed fading of memories and possible loss of documents.
146This finding is consistent with observations of the Supreme Court of Victoria in Basile v Pugh[56] when it endorsed what the High Court said in Brisbane South:
“Also, more than lip service must be paid to the observation of McHugh J in Brisbane South as to what is described as general prejudice — that is, prejudice that may exist without the parties or anyone else realising that it exists, and 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 ... 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.’”[57]
(Footnotes omitted)
[56]Supra at paragraph [37]
[57]Ibid at paragraph [37] – citations omitted
147As indicated earlier, the plaintiff gave oral evidence about matters relating to keys, access and maintenance. The defendant was generally aware of the unpleaded allegations as the plaintiff had referred to them, in part, in both the Plaintiff’s Interrogatories for the Examination of the Defendant[58] and the Plaintiff’s Answers to the Defendant’s Interrogatories.[59]
[58]Part of Exhibit P1
[59]Part of Exhibit D1
148I accept that the defendant has suffered specific prejudice relating to the unpleaded allegations regarding keys and maintenance given the loss of documents relating to such matters. Given the loss of documents, the defendant is now unable to respond to the unpleaded allegation that maintenance works were occurring. The plaintiff said this was why she took the route she did on 2 October 2002.
149I find that the defendant has also suffered from specific prejudice as the date of the initial incident is unclear. The plaintiff’s evidence about the date of the October 2002 incident was unsatisfactory. Ultimately she conceded that she may have been wrong about the date.
150This highlights the difficulty faced by the defendant. Given the uncertainty of date and details of the function the plaintiff alleges she was preparing for, it will be difficult for the defendant to respond to the plaintiff’s allegations that she was under time pressure to complete the task. It is probable that the defendant will be unable to establish whether there was a function scheduled on the day in question, whether external caterers had been engaged and whether the plaintiff was under any particular time pressure. I accept the submission made by the defendant on this point.
151Insofar as potential witnesses are concerned, it is noted that the defendant has not produced statements or Affidavits from the witnesses. The defendant has referred to some generalised discussions which took place between the solicitors for the defendant and the relevant witnesses on unspecified dates, other than Mr Darbyshire who was spoken to by Ms Duong on 6 November 2024. No documentation such as a file note has been produced about that conversation. I am not in a position to make any positive findings regarding the specific witnesses referred to in the defendant’s Affidavits.
152The defendant has met its evidentiary onus relating to specific prejudice. However, the cases make it clear even where specific prejudice exists, it may be just and reasonable to grant an extension of time.
153Even though there is general prejudice and some limited specific prejudice, I find that the defendant is nevertheless likely to have an acceptably fair trial, particularly given:
· The plaintiff bears the onus of proof in establishing breach of duty and causation;
· The defendant has available to it a number of witnesses who can give oral evidence in relation to the plaintiff’s duties generally and the defendant’s procedures generally; and
· The defendant has available to it medical evidence dating back to the date of the injury.
Section 23A(3)(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
Findings
154It is not necessary for the Court to make any specific findings, as neither party specifically addressed the Court on this sub-section.
Section 23A(3)(d): The duration of any disability of the Plaintiff arising on or after the accrual of the causes of action
Plaintiff’s submissions
155The plaintiff submitted that the following factors were relevant;
· she underwent a CT scan on 25 July 2003;
· she provided a certificate of incapacity for an injury to her left arm on 5 September 2005;
· she was examined by medical panel on 10 July 2010;
· she consulted Dr Quan on 27 August 2012;
· she was referred to Mr Drnda, neurosurgeon, for a second opinion in September 2015; and
· she returned to Dr Quan who referred to a recent MRI which was reported to show a fairly static neutral compressive pathology with C6 radiculopathy.
156Despite listing these factors, the plaintiff made no further submissions on this point.
Defendant’s submissions
157No specific submissions were made on this point.
Findings
158The plaintiff simply listed a number of factors regarding the plaintiff’s medical treatment. The plaintiff did not make any further submissions.
159There is no evidence to suggest that the plaintiff was suffering from a disability which impeded her ability to instruct lawyers.
Section 23A(3)(e): The extent to which the Plaintiff acted promptly and reasonably once she 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 a rise to damages
Plaintiff’s submissions
160The plaintiff submitted that she was not aware of the ultimate severity of the damage to her cervical spine until she ceased work and had surgery in December 2019. She repeated that she feared that she would lose her job.
161It was said that once she realised the severity of her neck condition she acted promptly by engaging her current lawyers.
Defendant’s submissions
162The defendant submitted the explanation proffered by the plaintiff was not a satisfactory explanation for the delay, as the plaintiff would not have known earlier that she was going to lose her job in 2020.
163There was no evidence that the plaintiff lost her job because of her injury or surgery. The evidence was that the plaintiff lost her job as part of a genuine redundancy, with her catering position becoming redundant during the COVID-19 lockdowns. It was submitted that it was opportunistic and unsatisfactory for the plaintiff to assert that she had been terminated because of her injury when she had worked for many years after October 2002.
Findings
164The plaintiff’s submissions are based on the false premise that s.23A(3)(e) is linked to an individual’s appreciation of the severity of the injury. That is not what the section says.
165I have already found that any fear relating to potential job loss was not rational.
166Contrary to the plaintiff’s submissions, as stated earlier, she said in oral evidence that she was aware in October 2002 and in the following years that she had injured her neck in October 2002.
Section 23A(3)(f): The steps, if any, taken by the Plaintiff to obtain medical, legal or other expert advice, and the nature of any such advice that she may have received
167It is not necessary for the Court to make any specific findings, as neither party specifically addressed the Court on this sub-section.
Conclusion
168The factors set out in s23A of the Act are not exhaustive. Any decision to extend the period of limitation has to be based on all relevant circumstances of the case.
169There is no doubt that there are important policy considerations underlying limitation periods.
170There is force in the submissions of the defendant that limitation periods have a purpose and are a formidable hurdle, and adopting the Griffith analysis, not just some easily movable line in the sand.
171Having said that, the line is also not a fixed line in the sand. The question is whether it is just and reasonable to move it.
172I am required to synthesize the competing considerations.
173I have found that the defendant will suffer general prejudice and some specific prejudice. However, I am not satisfied that a fair trial cannot be and because of this.
174I place particular significance on my findings that the plaintiff has not provided a reasonable explanation for her delay. This weighs against the grant of an extension.
175As previously mentioned, the granting of an extension of time is exceptional.
176In this case, having carefully considered all of the above circumstances, I am not satisfied that it is just and reasonable to grant an extension of time under s23A of the Act for the 2002 claim.177The application is therefore dismissed.
178I will hear from the parties in relation to the appropriate form of order and to costs.
- - -
0
24
0