Kaur v Toyota Motor Corporation Australia Limited (Ruling)
[2015] VCC 266
•20 March 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-05005
| HARBINDER KAUR | Plaintiff |
| v | |
| TOYOTO MOTOR CORPORATION AUSTRALIA LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 6 March 2015 | |
DATE OF RULING: | 20 March 2015 | |
CASE MAY BE CITED AS: | Kaur v Toyota Motor Corporation Australia Limited (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 266 | |
RULING
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Subject: LIMITATION OF ACTIONS
Catchwords: Application for extension of time pursuant to Limitation of Actions Act 1958 – nature and extent of the knowledge of the plaintiff – general and specific prejudice – conduct of the solicitors for the plaintiff and defendant
Legislation Cited: Limitation of Actions Act 1958, s23A; Accident Compensation Act 1985
Cases Cited:Bell v SPC Limited [1989] VR 170; Taylor v Western General Hospital [1986] VR 250; Tsiadis v Patterson (2001) 4 VR 114; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Koumorou v State of Victoria [1991] 2 VR 265; Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614
Ruling: Leave to the plaintiff to extend the period within which the Writ be issued.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G A Lewis QC with Mr M X Carey | Slater & Gordon Ltd |
| For the Defendant | Ms K E Judd QC with Ms P R Riddell | Minter Ellison |
HIS HONOUR:
Preliminary
1 This is an application pursuant to s23A of the Limitation of Actions Act 1958 (“the Act”) brought by the plaintiff by Summons dated 18 December 2014 for an extension of time within which the plaintiff’s Writ may be issued.
2 By her Statement of Claim filed with the Writ dated 30 September 2013, the plaintiff claims that during the period from 2000 until May 2002, she suffered injury, in particular to her spine, as a result of the negligence or breach of statutory duty of the defendant. According to the plaintiff’s affidavit sworn 10 February 2015,[1] she first suffered pain in her back on a date in May 2002 in the course of her work duties, inspecting vehicles on the “final 2 line”. She initially received treatment at the medical centre at Toyota and, from the date of the injury, was restricted to lighter alternative duties until she left employment by taking a voluntary redundancy package in 2010.
[1]Exhibit A
3 According to the affidavit of her solicitor, Michael Tanner, sworn 10 February 2015,[2] the plaintiff first sought legal advice in April 2010 and at the time, it was said she was unaware of the time limits within which to bring a common law action.
[2]Exhibit D
4 In July 2010, the plaintiff’s solicitors brought an application for impairment benefits pursuant to the Accident Compensation Act 1985 and the matter was subsequently referred to a Medical Panel which provided an Opinion and Reasons dated 4 November 2010.
5 In September 2011, the plaintiff’s solicitors served an Application pursuant to the provisions of the Accident Compensation Act upon the Victorian WorkCover Authority. The Application was rejected.
6 In January 2012, the plaintiff’s solicitors filed an Originating Motion in this Court seeking leave to bring common law proceedings pursuant to the provisions of s134AB of the Accident Compensation Act (“the serious injury application”).
7 On 22 May 2013, the serious injury application came on for hearing before his Honour Judge Brookes. In the course of the hearing, the matter was resolved, and a ‘Serious Injury Certificate’ was granted.
8 Subsequent to the issue of the plaintiff’s Writ and Statement of Claim on 30 September 2013, the defendant filed and served a Defence on 8 November 2013, which did not seek to rely on the limitation provisions of the Act. Subsequently, on 31 July 2014, the defendant served an Amended Defence alleging the plaintiff’s cause of action was barred by reason of s5(1) of the Act.
9 The trial of the common law proceeding came on for hearing before judge and jury on 5 March 2015. It was agreed that I determine the question of the extension of time before the jury was empanelled.
Legislation
10 The application is brought by the plaintiff pursuant to the provisions of s23A of the Act. That section provides:
“23A Personal injuries
(1)This section applies to any action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contract or any such provision) where the damages claimed consist of or include damages in respect of personal injuries to any person.
(2)Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines.
(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.
(4) … .”
The evidence
11 The following affidavits were tendered on behalf of the plaintiff:
(a) Affidavit of the plaintiff, sworn 10 February 2015 – Exhibit A
(b) Affidavit of the plaintiff, sworn 23 February 2015 – Exhibit B
(c) Affidavit of the plaintiff’s solicitor, Mr Michael Tanner, sworn 10 February 2015 – Exhibit D
(d) Affidavit of Mr Tanner, sworn 20 February 2015 – Exhibit E
(e) Affidavit of Mr Tanner, sworn 4 March 2015 – Exhibit F.
12 On behalf of the defendant, the following was tendered:
(a) Affidavit of the defendant’s solicitor, Mr Ramanan Rajendran, sworn 3 March 2015 – Exhibit 3.
13 The plaintiff, her solicitor, Mr Tanner, and the defendant’s solicitor, Mr Rajendran, were cross-examined.
14 According to the plaintiff’s affidavit, she first suffered pain in her lower back in the course of her work duties in May 2002. In evidence, she said the date was 7 May 2002.[3] She said she reported the matter to her supervisor, Mr Brian Hou, and was taken to the Altona Medical Centre, where she saw a nurse. According to the defendant’s Work Injury Register,[4] the plaintiff reported her injury on 17 May 2002 to “OHC”. The injury was said to be a strain to the left side of her lower back. According to notes of the Toyota Medical Centre,[5] the plaintiff was seen on 27 June 2002. While the note is difficult to decipher, it refers to sudden onset of lower back pain in the course of the plaintiff’s inspection duties. The plaintiff said that she had continued working and was seen by a physiotherapist, who prescribed exercises, and was said to be “getting better”. According to a “Member Recovery Plan” dated September 2004, the plaintiff suffered a musculoligamentous lumbar back strain/sciatica. The plan recorded limitations as to what the plaintiff could do, including undertake “yellow zone” work, avoiding work in a “red zone” and avoid twisting, pulling and prolonged sitting or standing. The plaintiff was referred to a physiotherapist, and the injury was said to be work related. It would appear around this time, the plaintiff was also seen by a number of other health practitioners at the Toyota Clinic.
[3]In other documentation, the date the plaintiff first suffered pain was 17 May 2002. Nothing turns of the issue of the precise date of the onset.
[4]Exhibit MLT7 to the affidavit of Mr Tanner, sworn 10 February 2015
[5]Exhibit MLT7 to the affidavit of Mr Tanner, sworn 10 February 2015
15 From the time of the injury, the plaintiff claimed to work only modified duties and had medical treatment, including icepacks and visits to a nurse and physiotherapist. She said she received physiotherapy during work hours once per week. At some point, she attended the Western General Hospital at the referral of a doctor from the medical centre, and a CT scan was undertaken. She remained on light duties until she accepted a voluntary redundancy package in 2010. She said she did not know of any potential entitlement to damages in respect of the spinal injury until April 2010, when she was told by a lawyer to whom she had been referred by her general practitioner. According to the affidavit of Mr Tanner, sworn 10 February 2015, at that time she saw Mr Gary Clark of the firm Clark Toop & Taylor[6], it was said that at the initial meeting, “the plaintiff was unaware of strict time limits to commence an action for damages at common law”.
[6]That firm subsequently merged with Slater & Gordon, the plaintiff’s current practitioners
16 The plaintiff was cross-examined. She acknowledged that she did not complete a claim form until May 2005 as she had not thought to fill one in earlier. She had been getting treatment at the Toyota Medical Centre where a doctor had suggested she fill in a claim form. She only saw a doctor at Toyota until 2005, and she did not go to see her general practitioner, Dr Navani, until 2005. She had not seen any lawyer before seeing Mr Clark.
17 The plaintiff and her husband had a taxi business from 1998. They had a number of taxis over the years and retained drivers to drive them. After she left Toyota in 2010, she started doing some of the paperwork for the taxi business. She had done a bit of paperwork earlier. Her son assisted her in making a submission to the Taxi Industry Inquiry.[7] Her son had obtained a Master of Laws degree in 2011 and subsequently, undertaken an MBA at Harvard University in 2013. He gave her some advice about the insurance relating to taxis. He was aware she had suffered an injury at work. He had not provided any legal advice nor had he suggested she go to a solicitor.
[7]Exhibit 1
18 The plaintiff went to see Mr Clark in 2010 as her physiotherapy payments had been stopped. She was not aware of any time limits within which to bring claims. When she saw the solicitor in 2010, she relied on him to provide advice. She was unaware she had to move quickly in the circumstances. She denied she was downplaying her knowledge of the legal system, in particular as to time limits.
19 Mr Tanner, the plaintiff’s solicitor, swore a number of affidavits.
20 In July 2010, an application for impairment benefit was served upon the defendant, and in September of that year, Xchanging, the defendant’s insurer, determined the plaintiff had a permanent impairment of five per cent. This assessment was referred to the Medical Panel, which provided a Determination and Reasons dated 4 November 2010.[8]
[8]Section 134ABA of the Accident Compensation Act provides that the period during which the degree of impairment is being assessed, including up to the decision of the Medical Panel, is to be disregarded in the calculation of any limitation period. The parties have agreed that such a period is from 20 July to 8 December 2010.
21 In September 2011, the plaintiff’s solicitor served the plaintiff’s Application pursuant to s134AB(4) upon the Victorian WorkCover Authority.
22 In January 2012, the plaintiff’s solicitor caused an Originating Motion to be filed in the County Court.[9]
[9]Pursuant to the provisions of s134ABA(b) of the Accident Compensation Act, the time from the commencement of the application until the issue of proceedings is to be disregarded in the calculation of the limitation period.
23 The plaintiff’s Originating Motion came on for hearing on 22 May 2013 before his Honour Judge Brookes. In the course of the hearing, the defendant granted a Certificate pursuant to s134AB of the Accident Compensation Act. On 30 September 2013, the current Writ and Statement of Claim was filed in the Court. Subsequently, the defendant discovered documents including the Injury Register and Toyota medical centre notes. Annexed to Mr Tanner’s affidavit, sworn 20 February 2015, is a statement of a co-worker of the plaintiff, Mr Huu Nghia Dang. According to that statement, Mr Dang worked with Toyota for over twenty years having commenced in May 1994. He worked upon the “final 2” work line which involved the inspection of completed vehicles. He said the plaintiff worked on the “network inspection” job on the line. His duties were rotated each two hours or so. From his observations, the plaintiff’s duties were not rotated. In 2002, the plaintiff was the only person working on the “network inspection” job. After her injury, rotation duties were introduced on the network inspection area and he thought there were four people involved in the job, rotating each two hours. The network inspection work required repetitive bending, twisting and working in awkward positions.
24 In a final affidavit of 4 March 2015, Mr Tanner responded to a number of matters referred to in the affidavit of Mr Rajendran, sworn 3 March 2015.
25 In 2010, the plaintiff’s previous solicitors obtained various documents from Xchanging which were made available to the defendant’s solicitors.
26 Mr Tanner was cross-examined. Despite reference in his first affidavit to the plaintiff being unaware of any time limits, there was no file note to that effect. He was questioned as to the delay after the Medical Panel determination in late 2010, and said that it was necessary to have the plaintiff re-examined by a number of doctors. It was suggested that he ought to have either brought an application for extension of time under the Act, or have the writ issued at the time the serious injury application was filed. He noted that in January 2011, an orthopaedic surgeon, Mr Schofield, recommended the plaintiff undergo a particular vertical MRI scan in Sydney. This was not obtained until March 2011 and it was then necessary to provide the report of that scan to various other doctors for their assessment. He said that a worker is unable to commence a proceeding for damages until the completion of the serious injury process under s134AB.
27 In his affidavit, sworn 3 March 2015, Mr Rajendran detailed investigations made on behalf of the defendant in relation to the plaintiff’s claim.
28 When the plaintiff first made a claim in March 2005, liability for reasonable medical and like expenses was accepted by the authorised insurer. Following the lodgement of the serious injury application, Mr Rajendran’s firm attempted to locate documents relevant to the plaintiff’s claim. The insurer’s claim file was sought which he said may contain medical reports, but it could not be located. In relation to the Work Injury Register, he said it could not be determined who completed the document or what accident investigation occurred. He said the defendant did not accept that the plaintiff performed only light duties after her back injury in May 2002. He said enquiries had been made to locate various documents, including worksheets, risk assessment documents, safety committee meeting minutes and other documents, but, despite representatives of the defendant undertaking a search in various areas, no documents had been located. He said the defendant had advised that work rosters are generally kept for a period of three years. Documents detailing the tasks undertaken on the defendant’s work line are only retained for the life of the model of a particular car and were not available in respect of those cars produced in 2002. He said there would have been meetings of occupational health and safety committees and these were not retained. Records of risk assessments were generally disposed of after five years.
29 He obtained statements from a number of employees of the defendant. Mr Ray Kelly had worked for the defendant from approximately 1997 and had performed a safety role for approximately the last five years. He made enquiries at the request of an investigator and sought to locate worksheets for the duties the plaintiff undertook over the period from 2000 to May 2002 on the “trim 2” line. He also sought accident/investigation hazard identification forms in relation to that line. He said he searched for the relevant documents and could not locate any information.
30 Mr Randy Sweet has worked at Toyota since approximately 1994 and had been a general foreman for approximately ten years. He was asked to locate standardised worksheets for the duties performed by the plaintiff over the period from 2004 to 2010, together with risk assessment documents over the same period and in respect of duties performed in 2000-2001 and 2005-2006. He was unable to obtain any such information.
31 Mr Brian Hou had been a group leader at the defendant’s line for twenty years. He worked with the plaintiff for two years from early 2000 when she was employed on the trim 2 line. He was her group leader for a period until she requested a transfer to the final 2 line, where he had little contact with her. During the period he was her group leader, she did not report any injury or incident. He said there were no Toyota accident investigation reports in respect of the plaintiff for the period 2000 to 2002. He said the plaintiff did not report any injury to the defendant while she worked on the trim 2 line. He said there would have been rosters in respect of her employment for the period May 2001 to May 2002 but these were kept for a period of approximately three years. There would further have been documents relating to the system of work on the trim 2 line, and minutes of occupational health and safety meetings which were no longer available. Such documents were only kept for a limited time.
32 Mr Sam Gerges is an ergonomics and compliance specialist working for the defendant. He made a search of all relevant documents held by the ergonomics team but was unable to locate any in respect of the trim 2 line for the period from January 2000 to January 2003. He said he liaised with other shop members who were unable to locate any standardised work documents for that period.
33 Mr Romeo Odon has been a group leader, rehabilitation group, at the defendant company since 2008. He made a search of the “assembly archive room” but was unable to obtain any investigation reports for the period prior to 2002.
34 Mr Rajendran was then cross-examined. According to his file, an email of 3 October 2011 was sent to Toyota which in turn sought information from the insurer, Xchanging. The email sought a number of items – the Xchanging claims file, the HR personnel file and the Toyota WorkCover file. Subsequently, a letter of 20 October 2011 was sent to Toyota seeking the WorkCover file, medical centre records and Xchanging claims file. The WorkCover file was provided and then returned. Mr Rajendran himself had not seen the WorkCover file, and had not asked for it to be returned. He said it was likely the material in the WorkCover file related to claims documents and medical material.
35 In 2014, the defendant’s solicitors had received a claims file from Toyota. Mr Rajendran had not seen that file. Subsequently, he obtained a circumstances report which contained statements which he subsequently annexed to his affidavit.
36 As to the Work Injury Register, the defendant’s authorised officer was unable to say who completed the document, but Mr Rajendran did not make any further enquiries as to who that person was. Toyota were unable to give him details as to who completed investigation reports at the relevant time. He did not make any enquiries as to who the occupational health and safety person was on the relevant line in 2002, but he spoke to a WorkCover manager, Mr Quarrell, who was unable to advise who that person was.
37 In relation to paragraph 7 of Mr Rajendran’s affidavit, he was unable to say where the information came from that the defendant’s position was that the plaintiff had not performed light duties after injuring her back in May 2002. Mr Rajendran took over the file in February 2014. He spoke to Mr Quarrell about these matters, but did not take a file note. He requested Mr Quarrell to make an investigation as to the circumstances surrounding the plaintiff’s injury. He requested Mr Quarrel undertake an investigation as to occupational health and safety matters relating to the claim. Mr Rajendran did not make specific enquiries about the people who may have been present in 2002 but rather made enquiries about managers and co-workers. He was advised that after an investigation, no co-workers could be identified. Mr Rajendran caused enquiries to be made about rotation of work duties and risk assessments.
Relevant legal Principles
38 In considering an application under s23A of the Act, the relevant legal principles may be summarised as follows:
(a) The plaintiff has the onus of satisfying the Court that it is just and reasonable to extend the limitation period;[10]
[10]Bell v SPC Limited [1989] VR 170
(b) The plaintiff’s prospects of success in the proposed proceeding is not a relevant factor providing the Court is satisfied that a plaintiff has a cause of action which does not amount to an abuse of process;[11]
[11]Taylor v Western General Hospital [1986] VR 250
(c) The availability of a cause of action to the plaintiff against his or her solicitor is a relevant factor to be taken into account;[12]
[12]Tsiadis v Patterson (2001) 4 VR 114
(d) The question posed by s23A of the Act is whether, having regard to all the circumstances of the case, including the circumstances mentioned in paragraphs (a) to (f) of ss(3), it is just and reasonable to extend the period. This requires consideration of the conduct and position of both parties, including the effect of the outcome of the application on each of them;[13]
[13]Bell v SPC Limited (supra)
(e) The Court should synthesise the 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;[14]
[14]Tsiadis v Patterson (supra)
(f) The Court should have regard to the principles relating to prejudice established in Brisbane South Regional Health Authority v Taylor,[15] in particular:
[15](1996) 186 CLR 541
(i) as time goes by, relevant evidence is likely to be lost; parties and their insurers have a significant interest in being able to arrange their affairs and utilise their resources in the knowledge they have no liabilities beyond a defined period;
(ii) it is in the public interest that limitation periods remain in place to ensure disputes are settled as quickly as possible;
(iii) general prejudice may be occasioned merely by the effluxion of time;
(iv) time may diminish the significance of a known fact or circumstance and the longer the delay, the more likely it is the case there will be less evidence available to a party than at the time when the cause of action arose.[16]
[16]See Tsiadis v Patterson (supra), in particular, the observations of Buchanan JA at paragraph [31] which distinguished some of the principles
Conduct of the Plaintiff
39 Ms Judd, for the defendant, submitted I should have reservations about accepting the evidence of the plaintiff that she knew nothing about the time limitations in the bringing of her claim before she saw Mr Clark in 2010. She referred to the plaintiff’s involvement in the family taxi business, including employing drivers and being aware of the need for WorkCover insurance. Further, her son had a legal qualification, knew of her injury, and assisted to some extent in the taxi business prior to 2010, including helping the plaintiff make a submission to the Taxi Industry Inquiry.[17]
[17]Exhibit 1
40 I had the opportunity to observe the plaintiff in cross-examination. I assessed her as a witness of truth giving a fair account of the events which transpired over the relevant period. She answered questions in a manner I would expect of an honest witness. There were no significant credit issues put to her. I accept her evidence that she had no knowledge of time limitations, in fact she knew little of her right to obtain common law damages as a result of injury. She was prompted to go to a general practitioner who in turn referred her to a solicitor, because payment of physiotherapy expenses had ceased. I accept that it was not until 2010 that she had any idea of her entitlement to bring a claim, and time limitations which may apply.
41 Ms Judd criticised the plaintiff for not calling her son as a witness. However, it is clear that the issue of the knowledge and involvement her son did not transpire until she was cross-examined. I see no reasonable basis upon which it could be said the plaintiff’s son should have provided an affidavit or been called as a witness. I accept her evidence her son did not provide any advice as to time limitation periods.
42 To the extent any criticism was levelled at the plaintiff for failing to take urgent steps to prosecute her claim once it became known, in 2010, that her claim was out of time, I accept her evidence that with her limited knowledge of the legal system, she relied upon her solicitors to take all steps necessary. In my view, there could be no criticism of the plaintiff for any delays in the prosecution of her claim.
Conduct of the Plaintiff’s solicitor
43 Ms Judd was critical of the failure by the plaintiff’s solicitor, Mr Tanner, and others representing the plaintiff, to act speedily once it was known, in 2010, that the period within which the plaintiff might bring a common law proceeding had expired. In particular, she submitted that in the period between 8 December 2010 and 15 September 2011 there was no satisfactory explanation for delay. Clearly, s23A of the Act contemplates delay on the part of the plaintiff and her lawyers as a matter to be taken into account in determining whether it is just and reasonable to extend the limitation period.[18]
[18]See s23A(3)(a), (e)
44 The “delay” referred to in s23A of the Act means delay from the date of occurrence of the injury, not from the expiration of the limitation period.[19]
[19]Koumorou v State of Victoria [1991] 2 VR 265
45 Much of 2010 was taken up by the plaintiff’s application for assessment of permanent impairment, which continued until November with the handing down of the Medical Panel Reasons. This is a period specifically to be excluded from consideration of the limitation period. Likewise, the period from the commencement of the application until the issue of the originating motion is to be disregarded. I accept the evidence of Mr Tanner that in early 2011, at the suggestion of a consultant orthopaedic surgeon, it was necessary to have the plaintiff examined with a special vertical MRI scan in Sydney. The report was not obtained until March 2011 and then it was necessary to provide the report to various other consultant and treating practitioners. In the circumstances, this was a reasonable step to take.
46 The serious injury application was then lodged in January 2012 and came on for hearing in May 2013 when a certificate was granted. Subsequently, the Writ was issued in September 2013. In my view, it was reasonable for the plaintiff’s solicitor to complete the serious injury process in the manner which was undertaken. Save until the end, the process was contested and s134AB(1) provides that a worker has no entitlement to damages unless the Victorian WorkCover Authority grants a certificate, or a certificate is awarded by a court.
47 While it might be said that the application for an extension of time might have been brought on earlier, the defence was not taken by the defendant until its Amended Defence of July 2014.
48 In the circumstances, I am not satisfied that the conduct of the plaintiff’s legal practitioners was unreasonable.
General and specific prejudice
49 The real issue to be determined in this application is the extent to which the defendant suffers general or specific prejudice in defending the plaintiff’s common law claim.
50 In determining this issue, it is necessary to understand something of the plaintiff’s claim. Her Statement of Claim is pleaded generally and claims that over the period from 2000 until May 2002, she was required to undertake various tasks including “constantly bend and twist in awkward circumstances for prolonged periods of time while working upon an assembly line, as a result of which undue stress was placed upon her back and she thereby suffered injury”. The Particulars of negligence are somewhat general and plead an array of failures by the defendant, few of which give the defendant any precise indication as to the place where the injury occurred, or the precise work activities which were said to cause injury.
51 In opening the case, Mr Lewis, for the plaintiff, focussed the incident which gave rise to injury as having occurred in May 2002.[20] At this point, the plaintiff was working on “network inspection duties” on the “final 2 section” of the defendant’s assembly line. The particular detail of the tasks the plaintiff undertook were agreed to by the defendant in Answers to Interrogatories.[21]
[20]Transcript (“T”) 5, L12
[21]See the plaintiff’s Interrogatory 6 – PCB 52 and the defendant’s sworn Answers – PCB 59
52 Further, in an expert report of Ms Christine Aickin, ergonomist and safety consultant, of 7 February 2013,[22] it was stated the plaintiff suffered injury in May 2002 working on the final 2 line. That report clearly indicated the plaintiff suffered injury in an incident on 7 May 2002 while undertaking a range of inspection tasks over a period of several hours. The report went on to examine whether those various tasks breached the provisions of the Manual Handling Regulations, or other general principles of ergonomics and manual handling. I was informed the report was subsequently served upon the defendant’s solicitors. The report concluded that the risk of manual handling could be significantly reduced if the following control measures had been implemented:
[22]PCB 184-214
“● implementing rotation between jobs every two hours during the shift; [I am told that this measure is now in place.]
● providing two operators for tasks that have been identified and assessed as providing manual handling injury risk;
● providing additional team leaders to both manage the process and assist as required;
● reducing the number of vehicles checked each day; [I am told that 202 rather than 315 vehicles are checked per day now.]
● implementing electronic levers for the horizontal adjustment of the seat. I am told that the newer models have this facility and that awkward postures involved in testing are no longer required;
● training process workers in manual handling hazard identification, hazard and work related symptom reporting along with the manual handling skills relevant to their work;
● encouraging workers to report manual handling hazards to the supervisor;
● training team leaders to appropriately address hazard and symptom reporting and to identify hazards themselves; and
● fully implementing a manual handling risk management system in the final 2 area.”[23]
[23]PCB 202-3
53 From all of this information, it ought to have been clear to the defendant’s lawyers that the real thrust of the plaintiff’s case was in respect of those inspection duties, identified in the plaintiff’s Interrogatories and in the report of Ms Aickin, on the final 2 line.
54 The defendant’s position is that by reason of the lapse of time since the incident occurred, it is now not able to obtain documents which may relate to the system of work in place in 2002, nor identify persons whose evidence may relate to those systems. In particular, the following documents are no longer available or persons cannot be located:
· It is not possible to identify who completed the “Work Injury Register”[24];
[24]Paragraph 7 of the affidavit of Mr Rajendran – PCB 73B
· It has not been possible to obtain the accident investigation report of the injury;[25]
[25]Paragraph 7 of the affidavit of Mr Rajendran – PCB 73B
· The entirety of the plaintiff’s file is no longer available, in particular as to whether she performed light duties after May 2002;[26]
[26]Paragraph 7 of the affidavit of Mr Rajendran – PCB 73C
· The following documents have been sought from the defendant but none were found:
§ Standardised worksheets for the plaintiff’s duties over the period 2000 to May 2002
§ Risk assessments and countermeasure documents for the same period
§ Safety Committee meeting minutes
§ Training documents relating to the plaintiff;[27]
[27]Paragraph 8 of the affidavit of Mr Rajendran – PCB 73C
· The defendant has conducted searches for any other relevant documents in a range of areas, but none have been available;[28]
[28]Paragraph 9 of the affidavit of Mr Rajendran – PCB 73C
· The plaintiff’s work rosters were kept only for a period of three years;
· Documents relating to the plaintiff’s performance of duties in the assembly plant are available only for the life of a particular model;[29]
[29]Paragraph 10 of the affidavit of Mr Rajendran – PCB 73D
· Minutes of occupational health and safety committee meetings have not been retained;
· Risk assessments are no longer available;
· Training records have not been retained.[30]
[30]Paragraph 10 of the affidavit of Mr Rajendran – PCB 73D
55 All of these documents, submits the defendant, are necessary to enable it to properly defend the matter, in particular to answer allegations that her work duties were not rotated and that from the date of injury, the plaintiff was forced on to light duties.
56 In Lord v Australian Safeway Stores Pty Ltd,[31] the Court of Appeal considered the question of delay and prejudice to a respondent. In that case, a WorkCover file relating to the incident could no longer be located; secondly, a truck upon which the worker was working when he suffered injury had been altered significantly and, further, the worker had suffered further injury or aggravation on a number of occasions after the subject injury. The trial judge gave little weight to the claims of prejudice. There was no evidence as to when the file was lost and as such, the loss of the file could not be said to be related to the delay. Further, alterations to the truck occurred before the expiration of the limitation period and any prejudice could not thus have been avoided if the worker sued within the proper period. In relation to the subsequent injury, the trial judge found there was prejudice to both sides as a result.
[31][1996] 1 VR 614
57 The Court of Appeal was not persuaded it should take a different view.[32]
[32]Lord v Australian Safeway Stores Pty Ltd (supra) at 623
58 Notwithstanding the principles established by Koumorou[33] that “delay” relates to delay from the occurrence of the cause of action to the present time, in my view, Lord does establish that in its enquiries into documentation which may no longer be in existence, or personnel who cannot be identified, some attempt should be made to determine whether that documentation would have been available, or the persons able to be identified, within the limitation period. Otherwise, any prejudice to be suffered by a defendant would have occurred in any event.
[33]Supra
59 On the face of it, the investigations undertaken by the defendant’s solicitor and the investigators he retained, were significant. However, upon closer inspection, there were a range of steps which were either not taken, or not adequately taken, as a result of which I am not satisfied those investigations were sufficient or appropriate in the circumstances. Those matters include the following:
· The focus of the enquiry directed to various of the defendant’s employees, including Messrs Kelly, Sweet, Hou and Gerges, were all directed to the defendant’s “trim 2” line where the plaintiff had earlier worked, and not to the “final 2” line where she suffered injury. Documents relating to work practices on the “trim 2” line would be of little relevance in the damages proceeding;
· While the defendant claims there is no one available to interpret the Toyota Medical Centre records, in particular the phrase that the plaintiff was “getting better”, there is little evidence as to investigations made as to who precisely worked in the medical centre over the relevant period, in particular nurses or physiotherapists to whom the plaintiff was referred. In any event, it is difficult to accept that a witness who made the entry would have any recollection as to what was said, other than the written entry itself;
· The defendant’s investigations have been directed primarily to documentation as to the work processes in 2000 to 2002. There is little evidence as to precise enquiries to be made of those persons who worked on the final 2 line at the relevant time. It is difficult to believe an organisation the size of the defendant would not have kept records of its employees over that period. While the plaintiff says she was the only person working as a network inspector, it is difficult to believe that there were no other workers in the surrounding areas at the relevant time who could give evidence about rotations and the nature of duties undertaken on the final 2 line. That is particularly so, given the plaintiff’s solicitors were able to obtain a statement from Mr Dang, who worked in the area, and provided details of the plaintiff’s work duties;
· According to Mr Rajendran’s affidavit, the defendant did not accept the plaintiff “performed light duties after suffering her back injury in May 2002 …”.[34] That statement presumes there is some basis for the defendant’s view, as a result of some investigation. However, there is no detail of any such investigation;
[34]Paragraph 7 of the affidavit of Mr Rajendran
· There is some confusion about precisely what files of the defendant, or its insurer, were provided to the defendant’s solicitors. It would appear at least a WorkCover file was provided and then returned. A “claims file” of the defendant was also obtained in 2014. There is no precise description of what was contained in these files relevant to the issues in the damages proceeding. Mr Rajendran’s evidence that he had not sought to obtain these files of more recent times, when the limitation issue became prominent, was less than impressive. The plaintiff’s solicitors were able to obtain documents relating to a number of claim numbers from the insurer, Xchanging;[35]
[35]Paragraphs [5], [6] and [7] of the affidavit of Mr Tanner – PCB 68B
· According to the defendant’s Further Answers to Plaintiff’s Interrogatories,[36] the defendant “conducted risk assessments of the tasks being performed on the assembly line in the period during which the enquiry is made”. There was no evidence as to how or from whom that information was obtained. Further, in Answer to Interrogatory 11, the defendant said:
[36]Answer to Interrogatory 6 – PCB 64
“In the Trim 2 area, the system provided that the plaintiff’s duties be rotated regularly, approximately every two hours. In the final 2 area, there was similarly a system of job rotation; however, the plaintiff’s preference was to work as a Network Checker only.”[37]
There was no evidence as to how or from whom that information was obtained, and whether the same information was available in relation to the final line.
[37]Answer to Interrogatory 7 – PCB 66
60 By reason of these matters, I am of the view that even notwithstanding the matters set forth in Mr Rajendran’s affidavit, the investigation was somewhat superficial. While investigations of this type are often carried out by contracted investigators and some central supervisor or manager, in my view, the defendant’s solicitor ought to have taken a more “hands on” approach and, in particular, specifically directed enquiries to the “final 2” line and to all the various personnel involved.
61 While there will be some prejudice to the defendant, both specific and general, by reason of the lapse of time since the injury occurred, and some difficulty in obtaining documentation as to her duties, I am not satisfied that that prejudice is sufficient to provide any significant barrier to the defendant to properly defend the common law proceeding. Further, to the extent there is prejudice, I am not satisfied from the evidence that would not have been present in any event by the expiration of the limitation period. In my view, it is just and reasonable, taking into account all of the matters referred to in s23A(3) of the Act, to extend the time within which the writ may be issued.
62 I shall hear the parties as to further orders.
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