James Sullivan v Pomakis Investments Pty Limited (ACN 091 535 296) - [2010] ACTSC 66

JAMES SULLIVAN v POMAKIS INVESTMENTS PTY LIMITED (ACN 091 535 296)
[2010] ACTSC 66 (9 July 2010)

LIMITATION OF ACTIONS – personal injury claim – claim by employee against employer – workers’ compensation paid shortly after injury – extension granted

Limitation Act 1985 (ACT)

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Brozinic v PHC Operations Pty Limited [2008] ACTSC 20
Laws v Web Scaffolding Pty Limited [2010] ACTCA 3
Noja v Civil and Civic Pty Limited (1990) 26 FCR 95
Sessions v Phengsiaroun [2008] ACTSC 132
Workers Compensation Act 1951 (ACT)

No. SC 833 of 2009

Judge: Master Harper
Supreme Court of the ACT

Date: 9 July 2010

IN THE SUPREME COURT OF THE )
) No. SC 833 of 2009
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:JAMES SULLIVAN
Plaintiff

AND:POMAKIS INVESTMENTS
PTY LIMITED
(ACN 091 535 296)

Defendant

ORDER

Judge:  Master Harper
Date:  9 July 2010
Place:  Canberra

THE COURT ORDERS THAT:

The time within which the action may be brought be extended to 30 September 2009.
The defendant’s costs of the application be paid by the plaintiff.
Costs not be recoverable until final orders are made in the action.

This is an application for extension of a limitation period. On 30 September 2009 the plaintiff commenced the present action for damages for personal injury against his employer at the time. The defendant has filed a defence saying that the claim is statute-barred, not having been brought within the three-year period fixed by section 16A of the Limitation Act 1985 (ACT).
The plaintiff relies on an affidavit sworn on 11 June. He lives in a government flat in the inner suburbs of Canberra. He left school after year 10 to complete an apprenticeship as a glazier. He worked in that occupation for most of his life, and is now in his middle fifties. He swore in his affidavit that he worked at Mitchell Aluminium, a business then owned by the defendant company, from mid-2003 until September 2004. He started to feel some pain in his arms a few months after he started work there. He went to his general practitioner a few times in 2004 for treatment. He was told that he had tendinitis in both arms and that there was nothing that could be done about it. By September 2004 the pain in both arms was agonising. He says he suffered from anxiety and depression as well as the pain in his arms. He could not keep working and gave up his job. He was then off work for about six months. He saw a sports medicine specialist in October 2004. She treated him for some three months and reported in January 2005 that he had made a full recovery.
He returned to work at Mitchell Aluminium in March 2005. By that time the defendant company had sold the business to new owners, but it was in the same premises and otherwise the same as before. The plaintiff worked there until July 2005. He gave up work after a meeting with his supervisor, and was then off work for about a year. From about July 2006 he worked in a casual capacity in the community sector until June 2009 when he gave up work altogether.
He did not think that he about making a claim for his injuries because the doctors had told him that there was nothing that could be done about his arms and that he had made a full recovery. He was referred during 2009 to a psychiatrist, but did not seek any further physical treatment because he could not afford it. In mid-2009 he saw a new general practitioner on the recommendation of a friend. That doctor told him that his injuries were serious and that he might require surgery. A friend recommended a firm of solicitors, whom he consulted in August 2009. He was unaware of any time limit for making a claim until the solicitors told him.
The plaintiff was cross-examined before me. He was very vague about dates and was not a particularly impressive witness, but I had no reason to doubt his honesty or genuineness.
His solicitor affirmed an affidavit from which it appears that a workers’ compensation claim was lodged, including a worker’s report of injury signed by the plaintiff, in December 2004, giving 3 June 2004 as the notional date of injury, described as tendinitis in both elbows caused by lifting heavy glass in the factory and on job sites. The claim was supported by a medical certificate from the general practitioner, and accepted by the insurer, QBE Insurance (Australia) Limited, who paid $139.00 in medical expenses and some $10,000.00 in capacity payments.
The solicitor deposes to the fact that the business is still carried on, now at different premises in the same general area but using the same plant and machinery, by another company who permitted access for an expert witness to evaluate the system of work in December 2009.
The solicitor with conduct of the matter for the defendant deposes that QBE was the workers’ compensation insurer on risk for the defendant until 10 July 2004, when the risk moved to another insurer, GIO General Limited. That company knew nothing about the claim until January 2010.
Enquiries of the defendant confirm that the business was sold in late 2004. All employment and other records in respect of the business have been disposed of. The sole director of the defendant company, Mr Pomakis, has no recollection which might assist the defendant in defending the action. He is presently in Greece but is expected to return at the end of July 2010. Mr Pomakis had some recollection of the plaintiff as an employee and would apparently be in a position to contradict some of the evidence likely to be given by the plaintiff, for example as to the capacity in which the plaintiff was employed, and as to the lifting procedures utilised by his company.
The defendant has also obtained an affidavit from a glazier formerly employed in the business. He recalls working with the plaintiff, who he says was employed as a fitter/labourer. He says that the plaintiff’s work did not involve lifting heavy sheets of glass, except occasionally as a third person assisting the two main lifters who would bear any significant weight. His recollection was that the plaintiff “had carpal tunnel problems with his wrists when he commenced employment, and he wore a support bandage. He also wore a back-brace. These were for previous injuries or conditions.” The glazier could not remember the plaintiff ever suffering any injury or complaining of any symptoms caused by his work, or making any workers’ compensation claim during the time he was employed there.
The limitation period is imposed by section 16A of the Limitation Act 1985, inserted with effect from 1 July 2002. The section applies to a cause of action for personal injury compensable under the Workers Compensation Act 1951 (ACT), and provides that such an action is not maintainable if brought three or more years after the day the injury happened.
Section 36 of the Limitation Act confers a discretion on a court to extend the limitation period under section 16A, although not in relation to other claims for personal injury, in respect of which section 16B imposes a time limit which cannot be extended. Section 36 has been part of the Limitation Act for many years, and is mirrored in the legislation of other Australian jurisdictions. The section provides that the court may order an extension of a limitation period where it is just and reasonable to do so. The court is to have regard to all the circumstances of the case, including, by way of example, the length of and reasons for the delay on the part of the plaintiff; the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant; the extent to which the plaintiff acted promptly and reasonably once he became aware that he might have an action for damages; and any steps taken by the plaintiff to obtain medical, legal or other expert advice, and the nature of such advice.
The principles to be applied in determining an application for extension of time were recently reaffirmed by the Court of Appeal in Laws v Web Scaffolding Pty Limited [2010] ACTCA 3. That appeal arose in circumstances where the plaintiff had suffered a discrete work injury more than six years prior to the commencement of proceedings, the same legislative provisions being applicable. The court at first instance noted that the considerations to be taken into account were finely balanced. The explanation for the delay was not particularly persuasive. As against that, notwithstanding the general presumption that delay inevitably leads to some prejudice, there was not likely to be prejudice to any significant degree caused to the defendant or the insurer if an extension was granted. The court was not satisfied that the delay had resulted in the defendant losing its right to a fair trial. The court on balance concluded that the justice of the case favoured the extension of the limitation period, and ordered accordingly.
The Court of Appeal (Higgins CJ, Refshauge and North JJ) referred to the decision of Higgins CJ in Sessions v Phengsiaroun [2008] ACTSC 132, in which his Honour had set out the principles to be applied in determining an application of this kind. His Honour had referred to the decision of the High Court of Australia in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, and also to the decision of the Federal Court of Australia (Sheppard, Neaves and Miles JJ) in Noja v Civil and Civic Pty Limited (1990) 26 FCR 95, and to previous decisions of this court in Hamilton v Madden [2007] ACTSC 89 and Brozinic v PHC Operations Pty Limited [2008] ACTSC 20, both at first instance. The Court of Appeal noted with approval the focus of the court below on whether or not, in spite of the delay, a fair trial was possible, which their Honours described as the primary issue.
The factors for and against the extension in the present application are, typically, finely balanced. I am satisfied that the plaintiff was unaware that he might have any right to claim damages under the general law until a very short time before he instructed his solicitors, and that both the plaintiff and the solicitors have acted promptly since then.
Both the employer and QBE have been aware of the injury since late 2004 although both could reasonably have assumed that they were extremely unlikely to hear anything more about it. As against that, it must be borne in mind that a claimant for workers’ compensation, in the absence of a redemption or common law settlement, may come back to the employer and the insurer years after the event if there is further incapacity or treatment made necessary by the original injury.
It seems to me that notwithstanding its sale of the business, the defendant still has available to it potential witnesses capable of assisting it in countering the claim by the plaintiff. QBE still has its file from 2004. Although the employer no longer has its written records from that time, there is no basis for any inference that anything in those records would have been relevant to its defence of the plaintiff’s action.
It is a matter for some concern that GIO General Limited, the workers compensation insurer who came on risk in July 2004, may ultimately be found to have some liability if the plaintiff succeeds in the action, in circumstances where that company knew nothing about the injury or the claim until earlier this year. On reflection, I am satisfied that that company will have access to the QBE file and will, by the time of trial, be in as strong a position as QBE itself.
Balancing those considerations, I am satisfied that the defendant has not lost its right to a fair trial. In those circumstances the extension should be granted. The time within which the plaintiff’s action may be brought will be extended to the date on which the originating claim was filed, 30 September 2009.
The plaintiff approaches the court seeking an indulgence and must pay the costs of the application. Recovery of those costs should be postponed until final orders are made in the action.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 9 July 2010

Counsel for the plaintiff:  Mr D P Shillington
Solicitors for the plaintiff:  Blumers
Counsel for the defendant:  Mr A R Muller
Solicitors for the defendant:  Moray & Agnew
Date of hearing:  2 July 2010
Date of judgment:  9 July 2010