Kelaart v Coca-Cola Amatil (Aust) Pty Ltd (ACN 076 594 119) (Ruling)
[2020] VCC 1219
•5 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-17-05919
| CHRISTOPHER BLAIR KELAART | Plaintiff/Applicant |
| v | |
| COCA-COLA AMATIL (AUST) PTY LTD (ACN 076 594 119) | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 and 4 October 2019 (defendant to file and deliver written submissions to those acting for the plaintiff by close of business on Friday 11 October 2019 and the plaintiff to file and serve written submissions on those acting for the defendant by close of business on 16 October 2019) | |
DATE OF RULING: | 5 August 2020 | |
CASE MAY BE CITED AS: | Kelaart v Coca-Cola Amatil (Aust) Pty Ltd (ACN 076 594 119) (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1219 | |
RULING
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Subject: LIMITATION OF ACTIONS
Catchwords: Statement of Claim alleging negligence, breach of statutory duty and breach of contract – defendant alleging that the various causes of action are statute barred – whether limitation period should be extended – issues of reason for delay and prejudice
Legislation Cited: Accident Compensation Act 1985, as amended; Limitation of Actions Act 1958 (Vic); Occupational Health and Safety (Manual Handling) Regulations 1999 and 1995
Cases Cited:Delai v Western District Health Service & Anor [2009] VSC 151; Welsh v Adecco [2017] VSC 44; Koumorou v State of Victoria [1991] 2 VR 265; Repco Corporation Limited v Scardamaglia [1996] 1 VR 7; Tsiadis v Patterson (2001) 4 VR 114; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Bell v SPC Ltd [1988] VR 123; Prince Alfred College Inc v ADC [2016] HCA 37; House v The King [1936] HCA 40; (1936) 55 CLR 499; R v Lawrence [1982] AC 510; Commonwealth of Australia v Smith [2005] NSWCA 478
Ruling: Summons dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff/Applicant | Mr J Brett QC with Mr L B R Allan | Lennon Mazzeo |
| For the Defendant | Ms R Annesley QC with Ms K Manning | Wisewould Mahony |
HIS HONOUR:
1 By way of Summons filed on 10 July 2019,[1] the plaintiff seeks an order pursuant to s23A(2) of the Limitation of Actions Act 1958 (Vic) (“the LAA”) that the period in which he may bring his damages action in relation to personal injuries be extended to allow that action to proceed.
[1]Exhibit 5 – the Plaintiff’s Court Book(“PCB”) at page 15
2 The plaintiff issued a common law proceeding against the defendant on 15 December 2017, claiming damages for personal injury allegedly suffered during the course of his employment over the period from “early 2001 to 13 January 2003, [when] the plaintiff was required to perform repetitive and strenuous duties which placed stress and strain upon his spine”.[2] In particular, the plaintiff alleges that on 19 December 2001, he was attempting to unjam a pallet in the hoist section of the palletiser machine; on or around 30 September 2002 to 3 October 2002, he was required to remove bottles from the bottle reject bin; and on or about 13 January 2003, he was crouching in the hoist area of the palletiser machine and attempting to free a jammed pallet when his left foot slipped, causing him to fall and twist his lower back.
[2]Exhibit 5 – paragraph [6] of the Statement of Claim, PCB at pages 1-10
3 The injuries suffered by the plaintiff include an aggravation of degenerative changes in his lumbar spine, sciatic symptoms, consequential altered gait, consequential bladder dysfunction, consequential erectile dysfunction, consequential Adjustment Disorder, Anxiety and Depression and chronic pain, and generally, pain and suffering.
4 The plaintiff relies on the following causes of action – negligence, breaches of the Occupational Health and Safety (Manual Handling) Regulations 1999 and 1995; and a breach of the Employment Contract.
5 By way of a Defence delivered by those acting on behalf of the defendant, paragraph 15 pleads:
“Insofar as the plaintiff’s cause of action arose on or before 13 January 2009, the plaintiff is barred by the provisions of the Limitation of Actions Act 1958 (Vic) from relying on that cause of action.”[3]
[3]Exhibit 5 at page 14 PCB
6 Such Defence relies on s5(1)(a) of the LAA, which provides that actions founded on simple contract or tort (including actions for damages for breach of a statutory duty) “shall not be brought after the expiration of six years from the date on which the cause of action accrued”.
7 At the hearing of this application, an issue arose between the parties as to when the cause of action accrued – whether it be on 19 December 2001, the date of the first incident of injury, or 13 January 2003, being the last incident of injury.
8 In my view, not much turns on the difference. Either date gives rise to the limitation period being well and truly past. For present purposes, I will refer to 13 January 2003 as being the date on which the cause of action accrued. If one takes the view that the cause of action accrued on 13 January 2003, any common law proceedings should have been issued on or before 13 January 2009. However, in the circumstances of this matter, common law proceedings were not issued until 15 December 2017. The delay is approximately one month shy of fifteen years. If one did take the accrued period commencing on 19 December 2001, the delay is slightly over sixteen years.
9 However, two matters must be borne in mind when calculating the period of delay:
(a)those acting on behalf of the plaintiff lodged an impairment benefit application under the provisions of the Accident Compensation Act 1985, as amended (“the ACA”), on 11 October 2011. The impairment claim was finalised by a Medical Panel determination made on 6 May 2013.[4]
[4]Exhibit 7
Section 134AB(4A) of the ACA then provided that when a worker made an impairment benefit application, there could be no application for a serious injury until such claim had been determined. However, pursuant to s134ABA of the ACA, the period from when the applicant lodged his impairment claim to the date thirty-eight days after the insurer’s impairment determination must be disregarded for the purposes of determining a limitation period. It is to be noted that it was not necessary for the solicitors for the plaintiff to lodge an impairment benefit application – that is, it was not a prerequisite to a serious injury application. However, once the impairment benefit claim was made, a serious injury application could not be made until the impairment claim had been determined;
(b)I refer to the decision of Beach J in Delai v Western District Service & Anor,[5] which involved a claim for personal injuries suffered allegedly as a result of the negligence of a hospital and medical practitioner. Issues arose as to whether and also when the limitation period had expired. At paragraph [22] of that Judgment, Beach J stated:
[5][2009] VSC 151
“Section 27L(1)(a) and (b) requires the Court to take into account ‘the length of and reasons for the delay on the part of the plaintiff’ and ‘the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant’. These sections are equivalent to s 23A(3)(a) and (b). The authorities concerning the meaning of delay in ss 23A(3)(a) and (b)47[6] hold that the delay referred to in those sections is delay between the accrual of the cause of action and the making of the application for an extension of time … .”
[6]Reference was made to Koumorou v State of Victoria [1991] 2 VR 265; and Repco Corporation Limited v Scardamaglia [1996] 1 VR 7
However, I also refer to Welsh v Adecco,[7] which involved the plaintiff seeking damages for injury arising out of the course of her employment and governed by s134AB of the ACA. T Forrest J stated, at paragraph [6](d):
[7][2017] VSC 44
“The relevant delay is the delay ‘between the accrual of the cause of action and the making of the application for an extension of time’.[8] For present purposes, I accept this to be upon the submission of the s 134AB serious injury application to the VWA … .”
It was accepted by both parties that the principle enunciated in Welsh[9] was applicable.
On 9 June 2016, the plaintiff’s serious injury application was filed with the Victorian WorkCover Authority and service was acknowledged by the Victorian WorkCover Authority on 10 June 2016. On 6 October 2016, the firm acting on behalf of the plaintiff received the defendant’s decision to refuse to issue the plaintiff with a serious injury certificate, stating that the insurer was not satisfied the plaintiff had suffered a serious injury pursuant to s134AB of the ACA.
On 28 October 2016, those acting on behalf of the plaintiff filed an Originating Motion and served various copies of documents on Messrs Wisewould Mahony, lawyers for the defendant.
The Originating Motion was set down for hearing on 3 August 2017 and on 13 July 2017, the defendant granted the plaintiff a serious injury certificate for both heads of damages.
[8]Reference was made to Delai (op cit)
[9]Op cit
10 Accordingly, the period of delay must be reduced by approximately nineteen months, given the application for the impairment benefit, and a further eighteen months, being the difference from when the serious injury application was made, to the date of the issue of the proceedings. If one accepts that the cause of action accrued on or about 13 January 2003, the delay is approximately twelve years, whereas if one takes the cause of action to have accrued on 19 December 2001, the delay is slightly over thirteen years.
The relevant legal principles
11 Pursuant to s5(1)(a) of the LAA, the plaintiff had six years from the date of accrual of the cause of action within which to commence proceedings.
12 However, pursuant to s23A(2) of the LAA, the times with which the proceeding may be brought may, subject to ss(3), be extended if it is just and reasonable to do so. I refer to s23A of the LAA, which states:
“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 powers conferred on a court by subsection (2) may be exercised at any time notwithstanding—
(a) that—
(i) in the case of an action to which section 5(1AA) or (1A) applies (not being an action to which section 23(1) applies), more than 3 years has expired since the cause of action accrued; and
(ii) in any other case more than 6 years has expired since the cause of action accrued; or
(b) that an action in respect of such personal injuries has been commenced.
(5) An application under this section shall be made by summons in the jurisdiction in which an action has been or is proposed to be brought and a copy of that summons shall be served on each person against whom the claimant claims to have the cause of action, provided that the Supreme Court may give leave to bring an action in any court which seems to it appropriate.
(6)Except as provided by section 27M(2), this section does not apply to an action to which Part IIA applies.”
13 The task for the Court on such an application was described in the Victorian Court of Appeal decision of Tsiadis v Patterson[10] by Buchanan JA, with whom Ormiston and Callaway JJA agreed, at paragraph [33]:
“The matters which the Court is required by s.23A to take into account cannot all be weighed against each other. For example, prejudice to the respondent in being unable to recover any compensation cannot be measured against prejudice to the appellant in conducting her case.[11] Rather, the Court must synthesize a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the respondent bears the onus of persuading the Court that it is just and reasonable to extend the limitation period. I agree with Brooking, J. in Bell v. S.P.C. Ltd[12] when he said:
‘The question posed by s23A is whether, having regard to all the circumstances of the case, including the circumstances mentioned in paras (a) to (f) of subs(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. ... It is for the plaintiff to satisfy the Court that it is just and reasonable to extend the period.’
… .”
[10][2001] VSCA 138
[11]Reference was made to Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (“Taylor”) at pages 549-50 per Toohey and Gummow JJ
[12][1988] VR 123 at pages 125-126
Background facts
14 The plaintiff relies on the following affidavits in support of his application for extension of time:
(a)an affidavit by him affirmed on 1 July 2019.[13] Such affidavit also contains exhibits, consisting of a statutory declaration declared by the plaintiff on 19 March 2012[14] and an earlier affidavit of the plaintiff affirmed on 6 June 2016;[15]
(b)a further affidavit of the plaintiff affirmed on 1 October 2019.[16]
[13]See exhibit 5 at pages 17-49 PCB
[14]See exhibit 5 at pages 22-26 PCB
[15]See exhibit 5 at pages 28-49 PCB
[16]See exhibit 5 at pages 277-516 PCB
15 The plaintiff also relies on an affidavit from the solicitor, Thomas McCredie (“McCredie”), a partner of Mazzeo Lawyers (formerly Lennon Mazzeo Lawyers), sworn on 13 August 2019.[17]
[17]See exhibit 5 at pages 62-276 PCB
16 I was informed by Senior Counsel for the plaintiff that the affidavit sworn by McCredie on 13 August 2019 came about in an attempt to exhibit only those documents which are relevant to this proceeding in one affidavit. McCredie has sworn other affidavits, the first one being on 9 July 2019.
17 The plaintiff is aged sixty-one years (having been born in April 1959 in what was then Ceylon), and is married with two sons, aged approximately twenty-three and twenty. He attended primary school in Ceylon, and after his family migrated to Australia in 1967, he attended the Clayton North Primary School, and later completed high school at Monash High School in 1977. After concluding his HSC, he attended the Caulfield Institute of Technology and then Swinburne Institute of Technology, undertaking a Bachelor of Science Degree, as well as working various casual jobs for short periods, while studying, to support himself.
18 Senior Counsel for the defendant referred to the curriculum vitae of the plaintiff.[18] In particular, the following cross-examination occurred:
[18]See exhibit 5 at pages 103-111 PCB
Q:“Mr Kelaart, it is fair to say you’re a very intelligent man, isn’t that right?---
A: Thank you, yes, I guess so.
Q: And you’re highly literate?---
A: M’mm.
Q:And your education, you completed your HSC in Australia in 1977?---
A: That’s right that’s correct.
Q: And you commenced a Bachelor of Science?---
A: I didn’t finish it, yes.
Q: No, but you did two years of it?---
A: M’mm.
Q: And you studied chemistry during that time?---
A: Correct.
Q:Then you commenced work and some years later you commenced and completed a Bachelor of Business at Monash University?---
A: Correct, by correspondence, yes.
Q:And you did that in a double major in management and marketing?---
A: Correct.
Q:And you were able to complete those while you continued to work, correct?---
A:I wasn’t working at the time when I started that. The marketing degree – the business degree rather is incomplete still.
Q: When did you finish your Bachelor of Business?---
A: Early 2000.
Q:And you have taken many opportunities throughout your career to do additional studies, haven’t you?---
A: Work-related studies, certainly, yes.”[19]
[19]Transcript (“T”) 38, Lines (“L”) 30 – T39, L20
19 Indeed, through a thorough cross-examination, I found the plaintiff to be highly intelligent and articulate, and also pedantic when clarifying issues. Although he gave his evidence in a reasonably flat tone, he clearly understood the questions and had no difficulty responding to the cross-examination.
20 The plaintiff also agreed that he had been involved at senior levels, in both domestic as well as foreign businesses, government departments and public and related professional associations.[20]
[20]T41, L19-24
21 Furthermore, he agreed he had had considerable project management experience, had proficiency, in general, in financial management, proficiency in the analysis and formulation implication for computer systems, operational and other communication systems and in personal recruitment orientation training and development.[21]
[21]Again, see generally, T41, L19 – T42, L18
22 When queried about his awareness of the ability to bring negligence claims against someone, he answered:
“In a general context certainly I’m aware, yes.”[22]
[22]T45, L29-30
Further:
Q:“And you knew in relation to that, if you hurt yourself, for example, that you could bring an action in negligence against the person who hurt you?---
A: Yes, I would have been aware of that, yes.”[23]
[23]T46, L2-3
23 Again, the following evidence was given:
Q:“In any event you would accept, would you not, that you didn’t need to have your hand held in terms of any claim that you wished to make against anyone, would you agree with that?---
A:No, I wouldn’t, I wouldn’t know the process to do something like that.
Q:You certainly accept though that if you thought you were injured, you knew that you could go and see a solicitor about it?---
A:Again, no, you have to understand my mentality to injury, at no stage did I envisage making any sort of a claim.
Q:I’m not asking you about whether you envisaged it, I just want to know about your knowledge at this stage. What I’m asking you is you knew before you were injured that you could go and see a solicitor if you were to be injured?---
A:Again, in a superficial sense I’m aware of things like that, certainly.
Q:And certainly you knew once you were injured that you could go and see a solicitor?---
A:Again, I imagine that’s the process but if you want to talk about my specific circumstance, again, it’s not something I pursued, no.”[24]
[24]T47, L27 – T48, L15
24 The plaintiff commenced employment with the defendant, initially on a temporary basis, on 9 January 1996 and later was employed full time in the capacity of the afternoon shift team leader of production line four, situated at the premises of the defendant in Levanswell Road, Moorabbin. The plaintiff began to experience some pain in his lower back in around 2000, which “partially recovered with rest”.[25] Over time, pain began to refer to his legs, with both his back and leg pain gradually increasing in intensity. The increase in pain was exacerbated by two reported work-related incidents, which occurred in October and December 2002. In early January 2003, the plaintiff sought treatment from a Joshua Free, chiropractor, because of the pain he had been experiencing. The plaintiff also confirmed that he did not lose any time off work until the incident in January 2003.
[25]See exhibit 1, which includes the statutory declaration made by the plaintiff on 19 March 2012, at paragraph [3]
25 On 13 January 2003, the plaintiff asserts he was injured at work while attempting to free a pelletiser that had become jammed. Because of the design of the pelletiser restricting access to the problem, he was required to squat down in the hoist area, and while attempting to lift and manoeuvre the pallet back onto the tracks to remove it, his left foot slipped and fell further into the machine and he twisted his back. He immediately felt significantly increased pain in the lower back and legs, and numbness around his genital area and coccyx.
26 The plaintiff ceased work as a result of this incident and initially attempted a return to work on or about 28 March 2003, and on that date, completed a WorkSafe Worker’s Claim Form[26] in relation to the incident on 13 January 2003. In that document, there are a variety of questions to which there are written responses. In particular, I refer to the following questions and the answers given by the plaintiff:
[26]Exhibit 5 at pages 66-68 PCB
“19] HOW EXACTLY WERE YOU INJURED?
…
Twisted boot in an awkward manner due to the confines : design of the palletiser.
20] EXACT LOCATION WHERE THE INJURY/CONDITION OCCURRED …
In the area of the pelletiser.
21] WHAT HAPPENED THAT CAUSED OR CONTRIBUTED TO YOUR INJURY/CONDITION? …
Manual handling necessitated by pallet jam ups, hindered by the design of the palletiser.
22]DID YOU BELIEVE YOUR INJURY/CONDITION WAS CAUSED/CONTRIBUTED TO BY A THIRD PARTY SUCH AS A MANUFACTURER/SUPPLIER? ...
Yes.
Jam-ups are very frequent occurrence primarily due to poor quality & old pallets.”[27]
[27]Exhibit 5 at pages 66-67 PCB
27 Senior Counsel for the defendant also queried the plaintiff about an investigation carried on by the insurer of the defendant immediately after the January 2003 incident. That investigation was by Lyonswood Investigation Services and dated 23 April 2003.[28] That document contains photographs of machinery, various statements, including those of the plaintiff, and a variety of other documents.
[28]See exhibit 5 at pages 70-127 PCB
28 In particular, Senior Counsel queried the plaintiff about his knowledge of the safety of the system of work. In particular, the following evidence was given:
Q:“You’re given an opportunity to read the statement, and you requested some changes to be made. [This is the statement compiled by the investigator]. Then: ‘Throughout the reading of the statement the claimant stopped reading to advise that of further management inadequacies and often referred to them as being less than caring’, can you recall saying that?---
A:I don’t recall those exact words, no, but if I did express frustration it was because the problem had existed for so long, and other people had also suffered injuries because of the same problem.
Q:So you thought it was an endemic problem with the system, did you?---
A:It wasn’t an endemic problem, it was a solvable problem.
Q:But one that had been longstanding as far as you were concerned?---
A:If you read the documents, the problem persists into - - -
Q:I just want to know what you felt at the time, at the time you thought it had been a longstanding problem?---
A:The problem was everybody was aware of the problem and like I said, people had been previously injured there prior to my accident. So - - -
Q:Did you then go on and say, ‘He also believed the degenerative changes in his lower back have caused through sheer negligence on the insured’s behalf’?---
A:Look, I can honestly not call saying something along those lines.
Q:Did you think that though?---
A:Again, I can’t tell you what I thought in 2003, I would be making it up.
Q:Well, you never thought that you were at fault for your injury, did you?---
A:No, no, I did not.
Q:And you always thought your employer was at fault for the injury?---
A:The nature of production, stuff happens, mechanical systems break down. That issue from managing the line was not common knowledge, it was a solvable issue, a very easily solvable issue, but for whatever reason the company didn’t resolve the problem.
Q:You always thought it was the employer’s fault, didn’t you, you always thought it was your employer’s fault?---
A:No, you’re putting words in my mouth, no, I wouldn’t think that I said that or articulated that, no.
Q:I’m not saying that, I put to you that you always thought it was your employer’s fault, didn’t you?---
A:I suffered an accident in the workplace because of a problem that hadn’t been addressed, that was my thinking.
Q:It was your employer’s fault?---
A:No, you’re again trying to put words into my mouth. I just told you, I suffered an accident with a problem that was pre-existing.
Q:And that problem was that in the control of your employer?---
A:It could have been resolved by the employer.
Q:And you put it down in your WorkCover claim form - - -?---
A:It should have been resolved.
Q:- - - to the design and confines of the palletiser?---
A:Sorry?
Q:In your claim form you put to down to the confines and design of the palletiser?---
A:Access to the problem was dictated by the design of the machine, correct.
Q:And you knew from your experience previously in your work life that the person who was responsible for fixing the problem was the employer?---
A:Of course, turning around and saying I articulated it’s your fault, that’s again not that accurate.
Q:Well, you certainly say that now?---
A:Again, I tell you, the problem was - people were aware of the problem, people had been previously injured by the problem, it could have been remedied.
Q:So you’re saying it is not your employer’s fault, is that what you’re saying?---
A:What?
Q:Do you say now it is not your employer’s fault?---
A:No, you’re playing with words. No, I’m not saying that at all, I just told you what I said.
Q:I suggest you’re playing with words, Mr Kelaart, and that you are trying to avoid admitting what you have always believed, was that it was your employer’s fault?---
A:I was injured in a machine in a workplace. That was the extent of my fault, okay - sorry, what am I trying to say? My thinking was injured in a workplace by a machine. The employer certainly owned the premises, owned the machines, so if you want to draw a long bow yes, okay. But no, it’s not something I articulated, no.
Q:You thought it though?---
A:No, I told you just now, okay.”[29]
[29]T87, L14 – T90, L2
29 The plaintiff gave this evidence in relation to his return to work in March 2003:
Q: “Then you’re off work to about March 2003?---
A: Yes.
Q: What happened then?---
A:I went back - the accident caused significant injury. I don’t know if you want an explanation as to what the problems were.
Q:What I want to know though, did you go back to work in March 2003?---
A:I went back to work for one reason only, not because I was able to, I went back to work because I had run out of sick leave.
Q:You needed the money, okay. You have lasted a week and then you stop again?---
A: I beg your pardon?
Q: Did you stop after one week?---
A: No, I stayed there, I modified how I worked.
Q: Then how long did that last for?---
A:It lasted for as long – there is a series of events that precipitated all this. I went back to work, nobody approached me, I had been away for months and nobody approached me.
Q: Just tell me the sequence about work, please?---
A:So I went back to my job, I was doing that, I pursued a WorkCover claim. As soon as that happened, as soon as I had lodged the WorkCover claim the company then took me off the line and put me on administrative duties. I started at that stage redesigning some of the operating manuals.
Q: How long did that last for?---
A:That lasted as long as WorkCover – well, it lasted until WorkCover approved my claim and as soon as WorkCover approved my claim the company then asked me to leave.
Q: They asked you to leave?---
A: M’mm.
Q: So what date was that?---
A: That was May, I believe, 2003.
Q: 2003?---
A: 2003, correct.
Q:And at the time you were asked to leave, you were doing the alternative supervisory duties?---
A: Yes and no, I was doing administrative.”[30]
[30]T55, L7 – T56, L4
30 The plaintiff also gave evidence that he found it upsetting when procedures were not followed when he attempted to get his WorkCover claim started when he was disabled at home. The plaintiff asserted that the employee relations manager informed him that his claim would be unsuccessful because of the time lapse since the incident; however, he accepted that he ignored that advice and lodged the claim in any event. In particular, the plaintiff was asked:
Q:“The point being, Mr Kelaart, is that when you were told, as you say, this information by the ER Manager, you took it upon yourself to act anyway, didn’t you?---
A: I asked her for the forms and in her presence we completed them.
Q: You say you insisted upon it, you insisted?---
A:It is a process, I spent three months and used up all my sick leave and yes, there were costs involved in the treatment that I was receiving. So certainly, I was doing what I should have been doing.
Q:You insisted upon it because you knew they were your rights and you were going to pursue them?---
A: Certainly.”[31]
[31]T62, L8-19
31 The plaintiff confirmed that he did not return to work with the defendant after May 2003 and, indeed, his employment was terminated on 10 August 2007. In May 2003, the plaintiff was advised that his WorkCover claim had been accepted and it was at this time he was told there were no longer any duties available to him because he was considered too much of a risk.
32 Weekly payments of compensation commenced and were backdated and have continued to date. It was put to the plaintiff that he has had 828 weeks of weekly payments amounting to approximately $777,000, to which he answered he would have to assume that is correct. He denied the reason that he had not brought an earlier common law claim was because he did not want to interrupt his ongoing weekly payments. In particular, he said:
“No, that’s not correct, no, sorry, that is not correct. … .”[32]
[32]T76, L1-3
33 I refer to the statutory declaration of the plaintiff declared on 19 March 2012[33] and the affidavit of the plaintiff sworn on 6 June 2016 wherein the plaintiff described the treatment that he has experienced since being off work. The plaintiff states that, “reluctantly” in early January 2003, he sought treatment from a chiropractor, Dr Joshua Free. After January 2003, he continued to see Dr Free on a weekly basis from 2003 to 2004 and over time, Dr Free referred the plaintiff to a general practitioner, Dr Primo Bentvigena, who also worked at the same clinic as Dr Free. The plaintiff believes he saw Dr Bentvigena on or about four or five occasions during 2003 and that he arranged for a CT scan.
[33]See exhibit 5 at pages 22-26
34 Since March 2003, the plaintiff has been treated by his family general practitioner, Dr Yean Haw, who in turn referred the plaintiff to the Metropolitan Spinal Clinic where he was seen by Dr Paul Verrills, a musculoskeletal physician. The plaintiff considers he saw Dr Verrills on about six occasions during 2003 and as part of his treatment, Dr Verrills referred the plaintiff to Ms Dale Stevens, an exercise physiologist. He was seen by her over the same period that he was treated by Dr Verrills.
35 The plaintiff reports that he had no significant improvement as a result of the treatment of Dr Verrills, and Dr Verrills then arranged for him to undertake an MRI scan, following which a number of different medical procedures were offered to the plaintiff.
36 In July 2003, Dr Haw referred the plaintiff to the neurosurgeon, Mr Myron Rogers, who saw the plaintiff on about four occasions and recommended a multilevel discectomy and fusion. The plaintiff states that he was “not completely comfortable with the treatment he suggested” and then was referred to a further neurosurgeon, Mr Brendan O’Brien, by Dr Haw in late 2003.
37 By mid 2003, the plaintiff was having increasing difficulty in voiding and suffered from a lack of bladder sensation and an erectile dysfunction. “Reluctantly”, he was referred to Mr John Kourambas, urologist, by Dr Haw. He was only seen once by Mr Kourambas as the plaintiff was not comfortable with the treatment he was proposing.
38 The plaintiff was treated by Mr Brendan O’Brien on about twenty occasions between late 2003 and 2008. In particular, Mr O’Brien suggested a course of treatment which involved a surgical procedure that the plaintiff was “comfortable with” and applications were made to the insurer of the defendant, Allianz, to cover the payment for surgery. Such application was rejected.
39 In early 2004, Mr O’Brien referred the plaintiff to another neurosurgeon, Mr Graeme Brazenor, for a second opinion. The plaintiff was seen by Mr Brazenor on or about four occasions, and he ordered a further MRI scan of his lumbar spine and concurred with Mr O’Brien as to the best course of treatment.
40 Given the support of the neurosurgeon, Mr Graeme Brazenor, for the type of treatment recommended by the neurosurgeon, Mr O’Brien, the plaintiff, through Union Assist, went to “conciliation”, where there was found to be a “genuine dispute”. Such a finding permitted the plaintiff to issue proceedings before the Magistrates’ Court, if he so chose, to have the issue determined by that Court. The plaintiff did not make any application to the Court to have this issue determined.
41 In late 2007, after no significant improvement, another MRI scan was arranged and Mr O’Brien concluded that because of the time that had elapsed, his originally suggested treatment was no longer suitable, including that a multi-level discectomy laminectomy was now his only option.
42 The plaintiff reports that he was “verbally advised” by the insurer that they were unlikely to approve any surgery and therefore an application was never made. The plaintiff notes that Mr O’Brien has since been unable to assist any further as his course of treatment was centred on him having the operation he proposed.
43 The plaintiff was queried why he did not proceed with the application to have the surgery (recommended by the neurosurgeons, Mr O’Brien and Mr Brazenor) that he said he needed. He stated:
A:“Because I had to take it to the Magistrates’ Court and I couldn’t at that stage, do that, I couldn’t afford the process, so I didn’t do it. I also spoke with the representative of the insurer that was there at conciliation and he pointed out that – please correct me if I’m wrong, but it wasn’t – the procedure wasn’t recognised by PBS or whatever - - -
Q:It was radical sort of surgery, was it?---
A:New-ish.
Q:Okay, just going back though, you have had a genuine dispute at conciliation, so that gave you the right, if you wanted to, you understood you could go to the Magistrates’ Court and get a Magistrate to determine whether the insurer should pay the costs of this surgery recommended by Mr O’Brien, is that correct?---
A:Correct.
Q:And you chose not to follow that course because of why?---
A:More financial, I was made aware of the costs involved, what would happen if I lose.
Q:You were on weekly payments then though, weren’t you?---
A:M’mm.
Q:Does your wife work?---
A:Yes, she does, yes.
Q:Is she a professional person?---
A:She works within childcare.
Q:Full-time?---
A:Up until recently, yes.”[34]
[34]T68, L7-29
44 Again, when pushed as to why he did not use Slater and Gordon – who are associated with Union Assist – to follow through with the application for the surgery to be undertaken, given what he had described as deteriorating symptoms, the plaintiff again stated:
“Perhaps if I didn’t understand, the choices I was given was go to Magistrates’ Court or wait and re-apply in the future. I chose the latter option, perhaps a mistake of mine but again, from my perspective, Slater & Gordon weren’t advising me, they weren’t my lawyers, I had not signed any agreement with them. It was part of the union process, it is where I got sent to, and at that stage I had no intention period of pursuing anything other than treatment. There was no intention to pursue any common law rights or whatever the case may be ... .”[35]
[My emphasis.]
[35]T70, L13-23
45 Mr O’Brien also referred the plaintiff to a urologist, Mr Owen Niall, who treated him on four occasions from mid to late 2004. After examination and tests, the plaintiff was taught how to self-catheterise and advised that the proposed surgery may resolve the problem but there was nothing further he could do except monitor him.
46 On 16 December 2003, Dr Haw referred the plaintiff to Cabrini Centacare and he began treatment with Ms Flora Gomes, psychologist, and treatment was initially on a weekly basis. Over time, this gradually became fortnightly, and eventually treatment ceased with Mr Gomes in June 2004 due to financial constraints.
47 From about mid to late 2004 until late 2007, the plaintiff was treated by Professor George Mendelson, psychiatrist, on referral from Ms Gomes, and was seen by Professor Mendelson on a four to five-weekly basis.
48 In 2006, Dr Haw referred the plaintiff to the Caulfield Pain Management and Research Centre, where he was treated concurrently by Dr Jason Teh, Ms Janet Firth, a musculoskeletal physiotherapist, and Ms Pauline Gardner, a psychologist. Apparently, Dr Jason Teh oversaw the program and saw the plaintiff on about six occasions between 2006 and 2008. The plaintiff continued to see Ms Firth weekly during this time, and Ms Gardner weekly until early 2009.
49 Since mid 2007, the plaintiff had been receiving treatment from Mr Richard Iredale, a Chinese medicine massage therapist/acupuncturist, on a weekly or monthly basis, depending on his financial ability to fund the treatment.
50 Also, from September 2010 until January 2011, the plaintiff received treatment from Dr Stephanie Willis, a chiropractor, on a weekly basis, until she left the practice.
51 The plaintiff was diagnosed with Stage 4 lung cancer in May 2014. The plaintiff commenced treatment of intense chemotherapy, surgery and radiation therapy to treat the lung cancer. He notes that the effect of the cancer treatment was that he was very fatigued.
52 In April 2018, the plaintiff was advised by his oncologist that he had approximately one to two years to live. On receiving this opinion, the plaintiff barely slept for a week, trying to process such information.
53 The plaintiff also reported that in April 2018, he began experiencing sharp and overwhelming pain in his head, which makes it impossible for him to concentrate. He notes that despite various investigations, doctors have been unable to find a cause and treat this new condition, which he believes is associated with the medication for his cancer treatment.
54 On 17 December 2018, the plaintiff had keyhole surgery to remove a tumour that had developed on his left adrenal gland, and received confirmation of success of this particular surgery on 1 April 2019.
55 As at October 2019, the plaintiff was having immunotherapy treatment every fortnight, and had been told by his doctors, and understands, that his condition is currently stable.
The various matters set out in Section 23A(3) of the LAA
56 Section 23A(3) of the LAA directs that in exercising the power conferred by ss(2), the Court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the matters which are set out in paragraphs (a) to (f) of that subsection.
57 I set out those paragraphs:
(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 the 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 out of, or after, the date 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.
58 I consider that all such paragraphs are potentially relevant, save for paragraph (c), which involves the extent, if any, to which the defendant had taken steps to make available to the plaintiff the means of ascertaining facts and the like. Those acting for the plaintiff made no submissions on this paragraph.
59 I have already set out details of the period from the date of the accrual of the cause of action to when the application for serious injury was made. In order to evaluate the reasons for the delay, several events must be understood.
60 When the plaintiff was injured, he was working in an unionised work area, which had various consequences – for example when interviewed by the investigator by Lyonswood Investigations (to which reference has already been made), he was accompanied by an union representative, who also purported to speak on his behalf and, secondly, had the assistance of an organisation referred to as Court Assist in such things as conciliation and the like (again to which reference had been made when he sought to have proposed surgery paid for by the insurer).
61 Court Assist was related to Slater and Gordon and although the plaintiff maintained that he never formally instructed Slater and Gordon, he had some discussions with them and, furthermore, had correspondence sent to him.
62 I refer to exhibit 4, which is essentially the Slater and Gordon file in relation to the plaintiff. In particular, I refer to the following:
(a)a letter from Slater and Gordon to the plaintiff dated 21 August 2003, wherein there is reference to a discussion between the writer of the letter and the plaintiff on 28 July 2003. Such letter is a short summary of the events giving rise to his injury, and the plaintiff was requested to contact someone at the offices of Slater and Gordon to have a further discussion;
(b)a letter from Slater and Gordon to the plaintiff dated 8 September 2003, wherein it is confirmed that a partner of Slater and Gordon (Mr David Moody) engaged in discussion with the plaintiff on 3 September 2003. The letter goes on to talk about various entitlements the plaintiff may have as a result of his injury.
One of the headings is “Common Law Negligence Claim”, which sets out the circumstances wherein the WorkCover legislation permits an injured worker to claim common law damages. The writer of the letter breaks the issue down to subjects of negligence, serious injury certification and loss or damage. There is one particular heading which states “Time Limits for Common Law Negligence Claims”, which states:
“You have six years from the date of your injury to issue proceedings for damages, after which time your right to bring a common law negligence claim expires. As you were injured on 20 January 2003, the last date you may bring court proceedings is 19 January 2009. As considerable preparation is needed before a claim can be issued, you should take steps to protect your interest at an early stage, if you elect not to pursue a claim but your condition significantly deteriorates in the future, even outside the six year period, you should seek legal advice as to whether some exception to the six year rule may then apply to you.”
(c)in a letter dated 7 September 2005, a senior associate of Slater and Gordon, Monika Henke, also wrote to the plaintiff, noting that “numerous letters” had been forwarded to him and that she had not received a signed copy of the Legal Costs Agreement that was enclosed with a letter dated 3 March 2005. In that letter, she also advised the plaintiff that he may have a “viable claim for compensation” but would be unable to act for him or protect his rights until she has received a copy of the Legal Costs Agreement signed by him.
In that letter, the writer also indicated that if nothing was heard within twenty-eight days of the letter, his file would be closed and no further steps taken to protect his legal rights.
Again, the writer of that letter advised the plaintiff in writing that he had six years from the date of his injury to issue proceedings for damages, after which his right to bring a common negligence claim expired. The writer also expressed that considerable preparation was needed before a claim can be issued.
In between these letters were other letters from Slater and Gordon offering assistance to the plaintiff to litigate the issue as to the cost of surgery proposed by Mr O’Brien for the plaintiff and which had been subject of a conciliation giving rise to a “genuine dispute”. There was no response to any of this correspondence from the plaintiff.
63 I refer to exhibit 1 which exists, in part, of an affidavit of the plaintiff affirmed on 1 July 2019 to which is exhibited a statutory declaration declared by the plaintiff on 19 March 2012, and also an earlier affidavit declared by the plaintiff on 9 May 2016.
64 I initially refer to the statutory declaration declared on 19 March 2012, wherein, at paragraph 21, the applicant states that on or around 21 August 2003, he had a meeting with Slater and Gordon Lawyers in order to assess his legal rights in relation to his work-related injury. The plaintiff noted that Slater and Gordon had initially assisted him with the conciliation process regarding application for surgery, which was rejected by the insurer. The plaintiff goes on to say in the statutory declaration that:
“22. I was assisted by Slater & Gordon in my efforts to obtain weekly payments from Workcover. I was advised generally in relation to bringing a serious injury application, however I never received specific instructions as to how I should proceed with my matter.
23.At the time of my dealings with Slater & Gordon I did not imagine that my injury would continue to be debilitating without respite. I did not envisage the duration, or fully understand the gravity or implications of my injury. I expected to recover from my injuries and therefore did not believe that the general course of action outlined to me by Slater & Gordon was applicable.
24.Furthermore, I was struggling to cope with the difficulties, both mental and physical created by my injuries. Thus my primary motivation, at that time, was to find a suitable course of treatment, and subsequently all other issues became secondary, namely my pursuit of any potential recourse I may have had. I gave little thought to my legal situation prior to and especially after Slater & Gordon advised me that they were closing my file on or about 7 September 2005, until my employment with Coca Cola was terminated.”[36]
[My emphasis.]
[36]See statutory declaration of the plaintiff declared 19 March 2012, at page 25 PCB
65 I also refer to the affidavit of the plaintiff sworn on 1 July 2019, wherein, at paragraph 3, he stated:
“Supplementary to my Statutory Declaration dated 19 March 2012 and my Affidavit dated 6 June 2016, I note the following: -
(i)When I was dealing with Slater and Gordon in the period 2003 to 2005 I do not recall being advised about whether I may have a common law claim. My sole focus at that time was on my health and attempting to obtain Allianz’s funding for the surgery I required. It was always my intention to return to work and at that time I believed that would return to work once my injury was treated. I certainly never envisaged that I would still be suffering from this injury.”[37]
[My emphasis.]
[37]Affidavit of the plaintiff dated 1 July 2019, at page 18 PCB
66 Under cross-examination, the plaintiff accepted that he was wrong when he stated in his statutory declaration that his meeting on 21 August 2003 with Slater and Gordon was about obtaining weekly payments because he had already achieved that by that time.[38] When he was queried about paragraph 3(i) in the affidavit affirmed on 1 July 2019, the following evidence was given:
[38]T105, L30 – T106, L2
Q:“And it was always your intention to return to work. When you say you do not recall being advised about it, you don’t say to His Honour you weren’t advised, do you?---
A:Again, I imagine they did their job, I can’t recall.”
HIS HONOUR:
Q:“I appreciate you haven’t got it now, but there is a letter in existence from Slaters addressed to you where they talk about in the last couple of paragraphs, about the common law claims or serious injury. You have sighted that, haven’t you, since this all started? No doubt people will show it to you. But the fact is you have seen this in your declaration, haven’t you? Slater & Gordon talked to you as you have said in your declaration about generally in relation to being a serious injury application?---
A:They may well have but I think I mentioned earlier, I had no intention of pursuing. Slater & Gordon was the - the union because of my membership they introduced me and they were following what they do. But from my perspective I had no intention of doing anything like that, regardless of the advice I was given. Slater & Gordon.”[39]
(sic)
[My emphasis.]
[39]T108, L11-31
67 I do find the plaintiff was advised by Slater and Gordon of a potential common law claim and the limitation period of six years by way of, in particular, the letter dated 8 September 2003, but also other correspondence sent by them to the plaintiff over the period from 2003 to 2005. Furthermore, I also find that the plaintiff knew that he had such a right, which had to be prosecuted within six years from the date of injury.
68 I also refer to the evidence of the plaintiff when pressed about whether the defendant was at fault in respect of the January 2003 incident.[40] In particular, I refer to paragraphs [25], [26], [27] and [28] of this Ruling, which deal with the evidence of the plaintiff in respect to his injury on 13 January 2003.
[40]See T87, L14 – T90, L2
69 I do find that given the background of the plaintiff, his obvious intelligence and experience of workplaces, that he would have had a clear appreciation that there was an “act or omission by the defendant to which the injury ... was attributable, might be capable ... of giving rise to an action for damages”.
70 I consider that such a finding is relevant to paragraph (e) of s23A(3) of the LLA. I consider that the plaintiff was not being frank when answering those questions, well realising the content of paragraph (e).
71 I now refer to exhibit “C”, which is a folder containing a bundle of documents from the legal firm of Lennon Mazzeo. There is no issue that the plaintiff attended at the offices of Lennon Mazzeo, together with his wife, and conferred with Mr Pat Lennon on or about 22 August 2007. Initially, the plaintiff gave evidence that such a meeting came about because he was introduced to Mr Pat Lennon by a mutual friend.[41]
[41]T90, L31 – T91, L1
72 The next morning, he changed that evidence and told the Court that the reason he had gone and consulted Pat Lennon was that he had been terminated by the defendant (on 10 August 2007) a short time prior to that meeting.
73 It was that firm that recommended at a later time that the statutory declaration be made by the plaintiff to explain why he had not issued proceedings within the relevant time limit. Again, I refer to the statutory declaration declared by the plaintiff on 19 March 2012, and in particular, paragraphs 25 to 27, wherein the plaintiff states:
“25.On 10 August 2007 my employment with Coca-Cola Amatil (Aust) Pty Ltd was terminated.
26.On or about 22 August 2007 I met with Mr Pat Lennon of Lennon Mazzeo Lawyers in order to assess my legal rights in relation to my work related injury. I was verbally advised by Mr Lennon that I had a good claim and that I ought to pursue and prosecute it.
27.I did not adopt Pat’s initial advice and pursue my claim at that time because I was not followed up by Lennon Mazzeo as to how I should proceed with this claim.”[42]
[My emphasis.]
[42]See statutory declaration of the plaintiff, at pages 25-26 PCB
74 I refer to the following evidence in relation to these events. It must be borne in mind that as at the date of the meeting with Mr Pat Lennon – 22 August 2007 – time had not expired for issuing common law proceedings, subject to a successful serious injury application. I set out the following evidence:
HIS HONOUR:
Q:“Sorry, I just want to hear a little bit about this particular document [the statutory declaration]. So this is a statutory declaration declared by you on 19 March 2012, is that right?---
A:Correct.
Q:What I just want to ask at this stage because I asked it this morning, and I want you to look at paragraph 26 and 27 of that document, please?---
A:Yes.
Q:26 reads, ‘On or about 22 August 2007 I met with Mr Pat Lennon of Lennon Mazzeo Lawyers in order to assess my legal rights in relation to my work-related injury, I was verbally advised by Mr Lennon that I had a good claim and I ought to pursue and prosecute it’. When you talk about a good claim, is that a good common law claim or what were you referring to there?---
A:I’m met Mr Lennon through a mutual friend.
Q:No, listen to my question. When you say that you were verbally advised by Mr Lennon, ‘That I had a good claim’, what is the claim you are referring to there?---
A:I’m assuming a common law claim, I can’t recall the discussion.
Q:Okay, so you want to reader of this document to understand that in August 2007 you had a discussion with Mr Pat Lennon and that discussion obviously involved what you believe to be about your common law claim?---
A:Correct.
Q:And you were told by Mr Lennon at that stage that you had a good claim, and you ought to pursue and prosecute it, that’s what you have declared there?---
A:Yes.
Q:Then if I go to 27, ‘I did not adopt Pat’s initial advice and pursue any claim at that time because I was not followed up by Lennon Mazzeo as to how I should proceed with this claim’; so am I to understand that by saying that, you have seen fit to go to solicitors, you got some advice from Pat which was positive advice about a good likelihood of success in your common law claim, but the reason you didn’t do it, go any further, is because, ‘It was not followed up by Lennon Mazzeo as to how I should proceed with the claim’, is that your evidence?---
A:That is what happened. If I recall correctly the meeting was informal, like I said, it was really I just happened to have a mutual friend. The meeting was informal, yes, he did advise that I have a good claim, I should pursue, but if I recall correctly he was supposed to send me out the relevant documentation, the agreements et cetera, that I never ever received.”[43]
[My emphasis.]
[43]T90, L18 – T91, L31
75 In answer to the next couple of questions, the plaintiff emphasised that “Pat” was not a friend but he had been introduced to “Pat” by a mutual friend who had told him about “Pat” and perhaps he should go and talk to him. The following further evidence was given:
Q:“Just going back, I just find this a little bit difficult to understand, I may be not understanding the way you want it to be understood, I don’t know. The picture I have here now is at that time you have been told by this person introduced to you by a mutual friend in a solicitor’s office during discussion about your legal rights, that you had a potential common law action which is likely to be successful?---
A:M’mm.
Q:And the reason that you didn’t do anything about it, ‘I did not follow Pat’s initial advice and pursue any claim at that time because I was not followed up by Lennon Mazzeo as to how I should proceed with this claim’?---
A:That is correct because the discussion we had, there was documentation that he was going to forward and that never happened.
Q:But did you think of ringing him, did you think of saying, ‘Where is this advice?’, or get your wife to ring him or get your mutual friend to chase up Pat and say where is this information; you don’t do anything?---
A:Yes, again, I defer back to lack of rational thought, okay.
Q:The rational thought didn’t stop you going to the solicitor and discussing it with him?---
A:I wouldn’t have done that if not for probably - like I said, Sarah said, ‘I know somebody’, blah blah, and that’s how the contact was made.
Q:Just so I understand then, you’re saying to me, are you, and it is very important, Mr Kelaart, that I understand at least your thinking process at the time. If I don’t understand that it is very difficult to make a decision. It is very helpful to me to what your thinking process is. It is not the be all and end all, I have to look at other surrounding events, but it is, I can tell you, of great assistance to you that I understand what your thinking process was. And the context I have got right now, you are sitting in a solicitor’s office discussing a potential common law claim which you have been advised yes, verbally, no document yet, that it is likely to succeed. You’re an intelligent man, you knew what he was talking about?---
A:M’mm.
Q:And this is in, as I say, 2007. And then following that, with that advice albeit informal, you don’t do anything on the basis that it was not followed up by Lennon Mazzeo, is that the answer why nothing happened after that?---
A:However silly that sounds, that essentially is what happened. I didn’t pursue anything, I didn’t hear from him, I consequently just didn’t pursue it.”[44]
[My emphasis.]
[44]T92, L25 – T94, L9
76 Later, the plaintiff was also queried as to whether there was any reason in his mind around 2007 that he did not want to make a common law claim, to which the plaintiff responded:
“It’s not something I do, honestly, I have hurt myself so many times and yes, it’s what I do.”[45]
[45]T97, L16-18
after which the following evidence was given:
Q:“It’s not your way, you say. Okay, well, can I ask you then- - -?---
A:That honestly was my thinking all the way along.
Q:What changed then, obviously you do want to make a common law claim now, and this is part and parcel on that road as it were. What changed and when did it change that you say you wanted to make a common law claim?---
A:I’m not sure if I wanted to make a common law claim, but what changed was I have said a couple of times now, doors kept being shut in my face. And when the surgical options closed off yes, I think that’s when I started thinking - not so much I wanted to make a common law claim, it was more - I guess, yes, trying to see what I can do. Yes, look that was my thinking.”[46]
[My emphasis.]
[46]T97, L19 – T98, L1
77 Under cross-examination, Senior Counsel for the defendant referred to exhibit “C” – that is, the Lennon Mazzeo file – and suggested to the plaintiff that the meeting with Mr Lennon on 28 August 2007 was far from an informal matter. When it was suggested to the plaintiff that Mr Lennon obtained a history of the plaintiff’s employment, his qualifications, his details of his salary and weekly payments, details of the injury and the circumstances of the injury, the plaintiff gave evidence that he could not recall any details. When it was suggested to him that the various pages of notes covered such things, the plaintiff ultimately said that he was “not debating it” and that if he “was doing his job correctly”, he would have done what was suggested but he – that is, the plaintiff – he could not recall any detail.
78 It was also put to the plaintiff that Mr Lennon specifically raised with him the issue of negligence of the defendant and, again, the plaintiff said he could not recall those discussions.
79 As I have recorded, the following day, with the plaintiff still under cross-examination, he gave evidence that he made a mistake the day before as to the reason he attended Pat Lennon in 2007. The plaintiff asserted, after a consideration overnight, that his motivation for attending the solicitor, Mr Pat Lennon, was that shortly before, he had been retrenched by the defendant. In particular, the following evidence was given:
Q:“What was your major - no-one likes losing their job, I understand that, but you had been off for four and a half years?---
A:True, but I was still chasing resolution of the medical issues and I still had avenues that were around me to go back to the workforce and that was always my motivation. The WorkCover payments and whatnot, certainly it supported me, but relying on it indefinitely was never my intention. My intention was always complete resolution of this issue.
Q:When you say complete resolution, are you talking complete resolution of your legal rights - - -?---
A:No.
Q:Or are you talking about complete resolution of your medical issues?---
A:Medical issues, yes.
Q:But what did you expect to go to a solicitor about to have a complete resolution of your medical issues?---
A:Look, I didn’t go to the solicitor for my medical issues, I just went there to talk to them about the fact that I lost my job and have a look at what I could do.
Q:Yes.”
MSANNESLEY:
Q:Mr Kelaart, that’s just complete reconstruction, isn’t it, that evidence?---
A:It is not a reconstruction, I acknowledge that I was wrong yesterday, I think I said I went to Pat again through a mutual friend, I think I said I went to Pat when my surgery was rejected, and I was sitting around last night trying to think what the timeframe was and, you know, based on my memory it was shortly after I had lost my job.
Q:You were at pains yesterday to explain to His Honour that you went there because you had - although it still wasn’t your motivation to issue a common law motivation, a friend had recommended you go so you thought you would go, and it was about the surgery; that’s what you were at pains yesterday to explain. And now today you’re saying that well, look, actually I have thought about it again and on the timeline this is where it fits in. So were you just simply wrong yesterday?---
A:I believe I was - - -
Q:And you had no basis for that evidence at all then, what you said - - -?---
A:I’m sorry?
Q:Your evidence yesterday had no basis at all, is that right?---
A:It was based on my recollection at the time.
Q:So what you’re saying now is just complete reconstruction?---
A:It is not intended to be reconstruction because I went home last night and I was trying to think what happened when, including Slater & Gordon, and to the best of my knowledge in trying to remember, that’s what I came up with.
Q:You were at pains yesterday to say that you couldn’t remember any of the discussions that you had with Mr Lennon other than what you put in your statutory declaration, that you had a good claim and you should prosecute it?---
A:I can’t recall the detail of discussions, no.
Q:No, so you can’t recall, as you sit there now that you raised anything at all with him about the fact that you had been terminated from your employment?--- Can you?---
A:I imagine I would have if that was why I went in, I imagine I would have.
Q:But you can’t say that because you don’t have a recollection of that, do you?---
A:No, I’m - - -
Q:No, and indeed if you look at Mr Lennon’s notes, there is no information there at all that you were recently terminated from your employment?---
A:I have not seen Mr Lennon’s notes.
Q:No, but we have and what I’m putting to you is that there is no note in there that you have been recently terminated from your employment, and if this is why you had gone to see him, that would have been one of the things he would have recorded?---
A:I would think so, yes.
Q:Indeed, instead what he has done is take a comprehensive history from you in relation to your employment, your injury, your qualifications, your treatment and he has a note that he was given you advice in relation to negligence?---
A:I’m sorry, is that what the note says?
Q:That’s what his notes say, and I suggest to you that is consistent with you going to see him in relation to your common law claim?---
A:I went to see him as to what my rights would have been, certainly, and again, he would have done his job, I imagine, I can’t recall the content of the meeting but I imagine he would have done his job.
Q:And he would have advised you about your time limits, wouldn’t he?---
A:Lennon Mazzeo consistently advised me about that.
Q:Can you turn to page - - -.”
HISHONOUR:
Q:They consistently advised you about that?---
A:Yes, based on all the delays that I created, yes.”[47]
[My emphasis.]
[47]T135, L6 – T138, L1
80 I again refer to exhibit “C” and in particular, the handwritten notes of Mr Lennon taken on 22 August 2007. Although the handwriting is not always clear, it does appear to be a record of such issues as the employment of the plaintiff, his injury and the course of treatment. In particular, there were notes taken of the difficulties with the palletiser and its role in the causation of injury. There does not appear to be any direct reference to the plaintiff’s termination of employment in those notes.
81 On the evidence before me, I am satisfied that the plaintiff did attend Mr Pat Lennon on 22 August 2007 and that the substance of the conversation was in relation to a potential common law claim. I also find that the plaintiff would again have been informed of the limitation period for issuing such a proceeding.
82 In this respect, I refer to the following evidence:
Q:“Did you ever raise the issue about the time limit with your solicitors at Lennon Mazzeo when you went and saw them either in 2007 or later in 2011?---
A:They have advised me about the time limits, yes.
Q: So did they advise you in 2007?---
A: I would think so.
Q:You would think so. And what about in 2011, they certainly advised you then, didn’t they?---
A:They have chased me - - -
Q:They advised you in 2011 that you had a six year time limit and that your claim was statute barred, didn’t they?---
A:Lennon Mazzeo have repeatedly chased me about time limits, yes.”[48]
[48]T127, L17-28
83 The reference to 2011 is a reference to 25 September 2011, when the plaintiff apparently again contacted the then firm of Lennon Mazzeo Lawyers, and, in particular, Mr Lennon – there would appear to be no correspondence from Messrs Lennon Mazzeo to the plaintiff.
84 In this respect, I refer to the affidavit of Thomas McCredie sworn 9 July 2019[49] and in particular, from paragraph [11] to paragraph [62], which sets out various events occurring between the plaintiff and Messrs Lennon Mazzeo. That affidavit also makes reference to the firm of Lennon Mazzeo being dissolved on 1 July 2017. Consequently, there were two firms, being Lennon Lawyers and Mazzeo Lawyers. From that point, the plaintiff has been represented by Mazzeo Lawyers.
[49]See exhibit 5 at pages 50-61
85 Those events have occurred since then:
· On 26 September 2011, the plaintiff again met with Mr Pat Lennon in which full instructions were obtained from the plaintiff.
· Mr Pat Lennon sought advice from the barrister, Stephen McCredie, and such advice was forwarded on 2 October 2011. In that advice, Mr McCredie, amongst other things, advised that the circumstances surrounding the January incident is “indicative of a very poor system of work that has caused the client’s injury”. Furthermore, Mr McCredie considered there are “good prospects of establishing negligence, breach of conduct, breach of statutory duties in respect of manual handling regulations applicable under the Occupational Health and Safety Act. Mr McCredie also noted that the claim was then statute barred and that it would ultimately be necessary for an application to be made under s23A of the LAA. In particular, Mr McCredie recommended that a claim be made under s98C of the ACA and also make preparations for an application for serious injury under s134AB of the ACA.
· It is also to be noted that the barrister, Ms Caroline Mills, conferred with the plaintiff in her chambers on 17 July 2012, seemingly in order to prepare an affidavit for the plaintiff in support of a serious injury application pursuant to s134AB of the ACA, together with a proposed statement of claim. Ms Mills, of course being well aware that any claim was, at that stage, statute barred, highlighted the process under s23A of the LAA. Ms Mills records that the plaintiff instructed her during conference that:
“He has had difficulty coming to terms with the permanence of his condition and has, up until very recently, refused to accept that he is unlikely to improve significantly. He instructed he has been very depressed at times and unmotivated to pursue any claim as a result. He further instructed that he dreaded the process of litigation and never wanted to be the centre of attention in a common law claim and therefore delayed taking any such action.”[50]
[50]See exhibit “C” at page 29 of that exhibit and in particular, paragraph 22(a) of the advice of Ms Mills
86 I again refer to the affidavits of Thomas McCredie sworn on 9 July 2019[51] and also sworn on 13 August 2019[52] which sets out various exhibits and some corrections in relation to his earlier affidavit sworn on 9 July 2019.
[51]See exhibit 5 at pages 50-61
[52]See exhibit 5 at page 62
87 In particular, I refer to paragraphs [11]-[62] and, in particular, paragraph [49], wherein Mr McCredie deposes that the plaintiff’s serious injury application was filed with the Victorian WorkCover Authority and acknowledged by the Authority on 10 June 2016.
88 The paragraphs to which reference has been made set out the various “difficulties” which ensued from 25 September 2011 (the date on which the plaintiff again contacted Pat Lennon) until 9 June 2016 when the serious injury application was made.
89 I again refer to the statutory declaration declared on 19 March 2012[53] wherein the plaintiff states:
“It is only now that I have contacted Lennon Mazzeo Lawyers, as of 26 September 2011, that I realise the gravity of my injuries and their impact on my life. I understand that I am unlikely to be able to return to any gainful employment, and the many freedoms that I use to enjoy are unlikely to return. I now understand that it is therefore imperative that I pursue my legal rights m order that I obtain some compensation for the purpose of supporting my young family and myself.”[54]
[53]See exhibit 5 at pages 22-26 PCB
[54]See exhibit 5, statutory declaration, and in particular, at paragraph 28, page 26 PCB
90 Notwithstanding the comments of the plaintiff in that quote, one only has to read the various paragraphs referred to in the affidavit of Thomas McCredie which are dotted with material whereby the plaintiff was chased up to provide material, to contact the firm and in general, progress his serious injury application.
91 As I have already recorded, the serious injury application does not get filed until 9 June 2016. Of course, for reasons which are not clear, those acting for the plaintiff lodged an impairment benefit application on 11 October 2011 (seemingly on the advice of Mr Stephen McCredie of counsel). In that circumstance, no serious injury application could be made until twenty-eight days after 6 May 2013 (the date on which the Medical Panel determination occurred).
92 Even in that context, there was a further gap between that time until the serious injury application made on 9 June 2016. Such a delayed course of action is inconsistent with what was said by the plaintiff in his statutory declaration declared on 19 March 2012, to which reference has been made – that is, as at the date of that declaration, the plaintiff realised the gravity of his injuries and their impact on his life and now understood that it is therefore “imperative that I pursue my legal rights in order that I obtain some compensation for the purpose of supporting my young family and myself”.
93 Furthermore, again, this must be compared to other evidence of the plaintiff. I refer to the following evidence:
(a)When queried about his intention when attending Lennon Mazzeo in 2011:
Q:“Does it follow then that when you did have the intention to do it, is that when you went back to Lennon Mazzeo in whatever year it was, 2011?---
A:Perhaps - I think the motivation behind that was I just wanted all this to finish. It is an amazing process of attrition, WorkCover, and I just wanted - I guess in honesty I just wanted to finished.”[55]
(b) When queried about the process of attrition, the plaintiff gave evidence:
A: The mental health issues I suffer is part and parcel of that process.
Q: Yes, I understand that?---
A: Periodically I get sent to somebody that is there to try and shoot holes in my story. It is an amazingly humiliating process to go through.”[56]
[55]T109, L1-7
[56]T110, L8-13
94 Shortly after that excerpt of evidence, the plaintiff confirmed that he has been on WorkCover payments since ceasing work, they have never been ceased throughout his period of time off work, that medical and like expenses have been paid, save for the dispute about surgery, and that at one stage, he was told by Slater and Gordon, and later by another solicitor, that he has a common law right. The following evidence was then given:
Q:“But it comes back to whatever year it is, you decide you are going to pursue that, and you’re telling me, as I understand it, that in part that’s because you want to finish everything up with WorkCover?---
A:Yes, I think that was my primary motivation. Yes, I just want it finished, I - I was advised just recently, I think you mentioned it, surveillance, all sorts of things like that, that is not a nice way to live. It is, like I said, a war of attrition, it is and it was, I did - - -
Q:I suppose I can’t dispute people get surveilled, I understand that, and I agree that would not be pleasant, but is that what you’re really saying to me, you want to get out of the system?---
A:Pretty much, yes. You asked me when I was diagnosed with cancer whether that was a motivation and I said no, it wasn’t, it was absolutely not. Again, a little while ago my oncologist who lack bedside manners, saying two years, two weeks, I would just like to enjoy whatever time I have left free from any of this. So yes, I think - like I said earlier on, sorry, I’m a different sort of person, I take responsibility for things I do, I hurt myself. And I have mentioned it, there are the incident reports that I have gone in the next day in a sling whatever, I do things like that. Slater & Gordon for want of a better word, their lack of - I suppose they pursued me as used car salesman, I had no interest in doing anything. Whatever documentation they sent me I can pretty much guarantee that I ignored it because that wasn’t what I was all about. 2011, my mental health issues dominate over and above at times – the pain’s the icing on the cake but my mental health issue - - -
Q:Let’s assume for the purposes of this immediate discussion your mental health issues are ongoing, but what’s the point you’re making there, that your mental health issues are driving you not to do something, or mental health issues are driving you to do something, I’m not quite sure what you’re saying?---
A:I still have this thought process that once I finish all this I will improve, and I sincerely believe that. Yes, and that is - I will say my motivation. Look, I haven’t thought about it, I have never, never, never thought about numbers or I can get this or whatever, I have never done that. I have never discussed that with anybody, people might have mentioned you can do this, you can do that. It was only just recently that my superannuation just to be able to access that, and whatever time I have left just to be able to access that. So we only just did it and we’re still in the process of doing it. So it was never a money thing, it was never about – I sincerely would love my life back and whatever I can salvage is what I want.”[57]
[My emphasis.]
[57]T110, L29 – T112, L18
95 As I have recorded, the serious injury application does not get filed until 9 June 2016. Of course, for reasons which are not clear, those acting for the plaintiff lodged an impairment benefit application on 11 October 2011 (seemingly on the advice of Mr Stephen McCredie of counsel). In that circumstance, no serious injury application could have been made until twenty-eight days after 6 May 2013. Even in that context, there was a further gap between that time until the serious injury application made on 9 June 2016 – slightly over three years later.
96 In relation to the mental health of the plaintiff over the various years, I make reference to the following evidence:
(a)The plaintiff gave evidence that his last treating psychologist was a Ms Pauline Gardner, who ceased treating the plaintiff in about mid to late 2009.[58] Since then, he has seen a psychiatrist, though that was following the cancer diagnosis and specifically for that condition. The plaintiff confirmed that over the period since 2009, he had no treatment from a psychiatrist or a psychologist other than that pertaining to the advent of the cancer;[59]
[58]T172, L13-17
[59]T172, L27-29
(b)His treating general practitioner is Dr Haw, and the plaintiff gave evidence that he is prescribed antidepressants by that doctor to the effect of 300 milligrams of Effexor daily. He has also, of recent times, been prescribed Fentanyl patches, which is a pain medication, and recently stopped taking Mobic and Nexium – both pain medications – because of side effects.
The plaintiff was also cross-examined about attending Dr Haw on 7 October 2011 (shortly after his return to Lennon Mazzeo on 26 September 2011), where he complained to Dr Haw that he was “tired of WorkCover and its policies and had yet another examination referral and has been in increased pain from examination again”. It was put to him that he was getting down in mood “[d]ue to his perception that he is being treated as a bludger”,[60] to which the plaintiff replied:
[60]T173, L26-27
“I think I mentioned yesterday, I find WorkCover just an attrition process. And I have been to some medical examinations that are very demeaning, I have had people pat me on the head. I find the process demeaning.”[61]
[61]T173, L22-31
(c)As already recorded, the plaintiff was treated by psychiatrist, Professor George Mendelson. In this respect, I refer to the report of Professor Mendelson dated 8 October 2012,[62] wherein Professor Mendelson confirmed that he initially consulted with the plaintiff on 4 May 2006 and later on 17 May 2006, 1 November 2006, 6 December 2006, 24 January 2007, 1 March 2007 and a final attendance on 4 April 2007. On that date, a follow-up appointment was made, but according to Professor Mendelson, such an appointment was cancelled by the plaintiff.
[62]See exhibit “B”
In that report, Professor Mendelson opines that the plaintiff had developed an Adjustment Disorder with Mixed Anxiety and Depressed Mood, which was secondary to persistent pain. Professor Mendelson treated the plaintiff with antidepressant medication and considered there was some slight improvement in his emotional state.
Professor Mendelson considered the plaintiff’s overall prognosis “was that of his physical condition”.[63] Furthermore, Professor Mendelson stated:
[63]See page 10 of his report.
“In response to your question concerning Mr Kelaart’s capacity for work, it was my opinion that his emotional symptoms would not have per se prevented him from undertaking gainful employment within the limitations of his physical condition if that were considered reasonable.”[64]
[64]See page 10 of his report.
When initially seen, the plaintiff informed Professor Mendelson that his “usual daily activities” involved picking up his children from school and also “trying to learn share trading”.[65]
[65]See page 9 of his report.
It was put to the plaintiff that he has conducted a significant share-trading business from 2005, which he denied. In particular, the plaintiff asserted that he has “investments and shares”, but not a share-trading business. In particular, the following evidence was given:
Q: “You traded shares actively, did you not?---
A: Not - I buy and sell shares, it is not a business, I don’t sit in front of my computer all day, I have been doing this since I was, what, 29 or something, 1990 I think I first bought my first share.
Q: Do you have a registered ABN number back when you were doing it, did you have a registered ABN number, Australian business number?---
A: No.
Q: Did you declare it in your tax returns as being a business?---
A: My advice from my accountant is that - - -
Q: Did you did you declare it?---
A: My advice from my accountant is that’s how you have to present those earnings.”[66]
[66]T164, L11-22
The plaintiff was taken to various taxation returns for the financial years ending 2006 to 2011. In particular, he was shown his 2005-2006 taxation return, wherein at page 11 of that return, there is a paragraph headed “Description of Main Business Activity” and it is described as “Investment operation, own account”.
The following evidence was also given:
Q: “And what I’m going to suggest to you is that from that time forward you conducted a significant business activity that you had in the financial year 2006, you had business income of $50,448?---
A: M’mm.
Q: In 2007/2008 you had business income of $39,796?---
A: M’mm.
Q: In 2008/2009 you had business income of $215, 715. In 2009/2010 you had business income of $410,510. In 2010/2011 your business income was $69.533, and the financial year 2011/2012 you had business income of $181,665.”
HIS HONOUR:
Q: “Can I just pause and ask you this, by referring to it as business income, is that the actual turnover, that is not necessarily - - -.”
MS ANNESLEY:
A: “Yes, I accept, I’m not saying that is profit, Your Honour.
Q: There are certain expenses but you were trading shares and producing business income in the amounts that I have suggested, weren’t you?---
A: I wasn’t trading shares, I buy and sell shares and I’m not a - I don’t sit in front of my computer 24 hours a day. I buy and sell shares and I still have a share account. I will give you an example, I can sell one share I own and that would net me a profit in excess of $100,000-odd now, and that was based on how long I have been sitting on it and what it was worth when I bought it and what it is worth today. So there is those sort of fluctuations within these numbers. Also margin banking and the like where you trade offers - - -.”
HIS HONOUR:
Q: “Over that time where, as you say not trading but buying and selling, did you employ the technique of margin lending?---
A: I have used margin lending, yes, but I used it for a few years.
Q: Do you engage in short sales and things like that?---
A: No. I buy looking for capital gain, I still do, that’s what I have been doing for - since I starting doing this.”
MS ANNESLEY:
Q: “And you trade on E-Trade, don’t you?---
A: I do trade on E-Trade.”[67]
(d)I also refer to exhibit 6, which is the report of the consultant psychiatrist, Dr David Weissman, dated 17 May 2007. Dr Weissman examined the plaintiff on 17 May 2007 at the request of the insurer of the defendant. Dr Weissman diagnosed the plaintiff to be suffering from a Moderate Adjustment Disorder with Depressed an Anxious Mood. Dr Weissman also noted that the plaintiff came across as someone with a number of pre-existing personality and ego strengths.
In particular, considering that his psychiatric condition was secondary to his physical condition, the prognosis was dependent on his physical condition outcome. However, and in particular, Dr Weissman was of the opinion that on purely psychiatric grounds alone, taking into account the plaintiff’s psychiatric condition or mental injury, there was no actual incapacity for employment.
Such opinion is similar to that of Professor Mendelson;
(e)Those acting for the plaintiff also sought to rely on a Medical Panel Opinion received on 30 August 2012 in respect to the impairment assessment made by the plaintiff. Although the psychiatrist(s) who examined the plaintiff at the time of the Medical Panel examination were of the view that the plaintiff suffered a psychiatric condition, such condition was reactive to his physical condition and thus secondary (again, similar to that of Professor Mendelson and Dr Weissman). In the opinion of the Panel, the plaintiff was suffering from a Major Depressive Disorder with features of agitation and psychosis relevant to the accepted psychiatric condition injury. It is also to be noted that the Panel recorded that they had available a medical examination from the psychiatrist, Dr Norman Rose, dated 2 April 2012, wherein Dr Rose did not describe the plaintiff experiencing auditory hallucinations. I should add there was no evidence before this Court of the plaintiff suffering auditory hallucinations.
[67]T166, L2-T167, L7
97 The plaintiff has also, on frequent occasions, asserted that he did not wish to entertain a common law claim because his injuries had not stabilised, or that he thought he would improve in time. It is to be remembered that a treating neurosurgeon, with the support of another consultant neurosurgeon, recommended a particular sort of treatment which was initially applied for at the conciliation stage of the compensation process, giving rise to a “genuine dispute”. At that time, the plaintiff was being “assisted” by Slater and Gordon and advised that he could take a “genuine dispute” finding to court and seek a determination that he be entitled to the treatment recommended. For reasons which are not entirely clear, the plaintiff did not follow that course and, indeed, has had no surgery to his back.
98 It is in this context that the plaintiff sometimes now claims that he has only recently realised that he is not going to improve anymore and that is why, now, he seeks to bring a common law claim.
99 Again, one refers to what the barrister, Ms Caroline Mills, has recorded the plaintiff to be saying, that he has been unable to pursue any claim as a result of not accepting the permanence of his condition. Ms Mills also recorded that the plaintiff dreaded the process of litigation and never wanted to be the centre of attention in a common law claim, and therefore delayed taking any such action.
100 Again, the plaintiff has more recently suggested that effectively he wanted to get out of the system because it is like a war of attrition with WorkCover – by this I understand him to mean the requirement to go to medicals, being poorly treated at medicals and being surveilled on occasion.
101 Before returning to the various matters set out in ss3 of s23A of the LLA, I refer to some decisions involving the exercise of the discretion for leave to extend time under a Limitation Act.
102 Initially I refer to the High Court decision of Prince Alfred College Inc v ADC[68] which was considering s48 of the South Australian Limitation of Actions Act 1936. That Act gave a court a discretionary power to extend the time prescribed for instituting an action.
[68][2016] HCA 37
103 The claimant was required to show that it was just in all of the circumstances for the court to extend the limitation period and that the other party would not be significantly prejudiced if the discretion was exercised in his favour. Under the heading “The Exercise of the Discretion”, the majority of the Court (French CJ, Keifel, Bell, Keane and Nettle JJ) stated:
“In considering the exercise of the discretion under s48(3) of the Limitations Act, two fundamental propositions established by this Court’s decision in Brisbane South Regional Health Authority v Taylor[69] must be borne in mind. First, an applicant for an extension of time must prove the facts which enliven the discretion to grant the extension and also show good reason for exercising the discretion in his or her favour.[70] An extension of time is not a presumptive entitlement which arises upon satisfaction of the pre-conditions that enliven the discretion.[71] The onus of persuasion is upon the applicant for an extension of time.[72] The exercise of the discretion to grant an extension of time must take account of the reasons for the limitation regime, and the discretionary nature of the decision to be made must be respected when conducting appellate review of a primary judge’s decision.[73] In Brisbane South Regional Health Authority v Taylor, McHugh J said:[74]
‘The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates.’[75]
Secondly, the purpose of the legislative conferral of the discretion is to ensure a fair trial on the merits of the case. The loss of evidence which will tend against the prospects of a fair trial will usually be a fatal deficit in an argument that good reason has been shown to exercise the discretion to grant an extension. As McHugh J pointed out in Brisbane South Regional Health Authority v Taylor,[76] the justice of a plaintiff’s claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of the delay, is unable fairly to defend itself or is otherwise prejudiced. His Honour had earlier observed[77] that, in cases of long delay, prejudice may exist without the parties or anyone else realising that it exists.”
[My emphasis.]
[69]Op cit
[70]Reference was made to Taylor (op cit) per Dawson J at page 544, per Toohey, Gummow JA at page 547, McHugh J at pages 551, 553-554 and per Kirby J at page 573
[71]Reference was made to Taylor (op cit) per Dawson J at page 544 and per McHugh J at page 554
[72]Reference was made again to Taylor (op cit) per Dawson J at page 544, per Toohey and Gummow JA at page 547, per McHugh J at pages 551, 553-554 and per Kirby J at page 567
[73]House v The King [1936] HCA 40; (1936) 55 CLR 499 at pages 504-505
[74]At page 551
[75]R v Lawrence [1982] AC 510 at page 517
[76](Op cit) at page 555
[77]Taylor (op cit) at page 551
104 I also refer to the New South Wales Court of Appeal decision of Commonwealth of Australia v Smith,[78] wherein the New South Wales Court of Appeal stated, at paragraph 123, that:
“The judges constituting the majority in Brisbane South (Toohey and Gummow JJ in a joint judgment, Dawson and McHugh JJ) agreed that, since the purpose of limitation periods is to preclude stale claims which the defendant would find it difficult to defend given the effluxion of time, it is prima facie prejudicial to the defendant to allow the commencement of an action outside that period. The defendant suffers presumptive prejudice where an extension of the limitation period is granted. Presumptive prejudice of itself may not disentitle a plaintiff to the leave sought … .”[79]
[78][2005] NSWCA 478
[79]Reference was made to Taylor (op cit) per McHugh J at 555; Salido v Nominal Defendant (1993) 32 NSWLR 524 at page 538
105 In Smith, the Court noted that the judges constituting the majority in Taylor[80] appeared to have divergent views as to whether the existence of “actual or significant prejudice to the defendant” (as opposed to presumptive prejudice) was decisive of the plaintiff’s application to proceed out of time, such that the application should be refused. In particular, I refer to the judgment of Santow JA, with whom Handley JA agreed. Those two judges constituted the majority decision with Basten JA dissenting. However, Basten JA, under the heading “Discretionary considerations”, stated that the principles relevant to the exercise of the discretionary power were discussed by Santow JA at paragraphs [122]-[129] above and commented that he differs from Santow JA in the application of those principles. I refer to paragraphs [128]-[129] of the judgment of Santow JA, whereat he states:
[80]Op cit
“‘Significant prejudice’ means such prejudice as would make the chances of a fair trial unlikely. As Hodgson JA, with whom Beazley JA and Rolfe AJA agreed, said in South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477 at [33] (a case concerning s60G Limitation Act 1969):
‘the true issue on this matter is whether or not the applicant for the extension discharged the onus of satisfying the Court that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely.’
Moreover, for a trial to be fair, it need not be perfect or ideal: Holt v Wynter per Priestley JA at 142; McLean v Sydney Water Corp [2001] NSWCA 122; Gabriel. It is not the case that in the absence of proof of significant prejudice the Court is bound to grant leave to commence proceedings as it must still be shown that it is just and reasonable to grant the necessary extension … .”
[My emphasis.]
106 I now return to the matters set out in ss3 of s23A of the LAA. I consider that paragraphs (a), (b), (e) and (f) can be dealt with together, as much of the relevant evidence relates to each of those factors.
107 As I have already pointed out, I do not consider that factor (c) has any relevance to this proceeding and after a consideration of factor (d), I do not consider that factor (d) has any particular relevance to this proceeding.
108 One can appreciate that factor (d) may be relevant to circumstances where a person suffers significant injuries preventing them from making a claim within the relevant six years – for example being placed in a coma. My initial thoughts were that the words “any disability” may well extend to someone having a psychiatric reaction to the extent they are incapable of making a claim for that reason. If that be right, I am of the view that the evidence in this matter does not permit a finding that the plaintiff had such a disability, the duration of which impacted on his ability to make a claim. I might add, no submissions were made in relation to paragraph (d), save that there were submissions that the plaintiff’s psychological state made it difficult for him to do certain things or getting around to doing certain things.
109 After a consideration of all of the evidence, including the psychiatric evidence before the Court, the demeanour of the plaintiff in Court, and his ability to be involved in other activities during periods off work, I do not consider that, to the extent that there is psychological or psychiatric injury of any duration, it impacts on this proceeding.
110 I refer to paragraph (b), which involves a consideration as to whether, because of the delay there is, or is likely to be “prejudice to the defendant”.
111 As I have already recorded, if one accepts that the cause of action accrued on or about 3 January 2003, (the last alleged incident of injury pleaded on the Statement of Claim), the delay is approximately twelve years, taking account of reductions given – that is to say, the application for the impairment benefit and time running up to the serious injury application on 9 June 2016. On the same basis, save for the cause of action commencing on 19 December 2001 (the date of which the first alleged incident of injury is pleaded in the Statement of Claim), the delay is slightly over thirteen years.
112 On either calculation, I find such delay to be inordinate. When one comes to consider “reasons for the delay” on the part of the plaintiff, the following matters must be borne in mind:
(a)There can be no doubt that the plaintiff was aware at all material times that he had suffered injury arising out of or in the course of his employment with the defendant over the alleged period, but particularly on 13 January 2003, at which time he ceased work because of such injury. A short time later, a claim for compensation was made against the defendant, which was ultimately accepted, giving rise to the commencement of weekly payments of compensation which have continued to date, together with the payment of ongoing medical and like expenses (save for the disputed back surgery);
(b)As I have already recorded, I have found the plaintiff would have appreciated, both from his experience and indeed his obvious intelligence that the “injury”, particularly on 13 January 2003, definitely gave rise to the prospect that the defendant had an unsafe system of work by permitting the plaintiff to perform the activities he did on that day. Such a finding is relevant to paragraph (e) when one gauges the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant to which the plaintiff was attributable might be capable at that time of giving rise to an action of damages;
(c)Within the six-year period after injury, I have also found that the plaintiff had been informed, initially by Messrs Slater and Gordon, on or about 8 September 2003, that he had a potential common law claim in relation to what was referred to as an injury on 20 January 2003 (clearly mistaken and should have been 13 January 2003), and that such claim had to be made within six years of its occurrence, and that preparation was needed before a serious injury application could be issued. Again, there was at least one further and maybe more references in letters, again putting the plaintiff on notice that he had a potential common law claim.
Also, as I have already found, the plaintiff attended, with his wife, on Mr Pat Lennon, a partner of Lennon Mazzeo lawyers, on 22 August 2007, at which time there was clearly discussion about a common law claim, and as I found and indeed the plaintiff accepted, he would have been told the time limits for making such a claim. As at 22 August 2007, he was still within time for making a serious injury application;
(d)Nothing was done by the plaintiff from that date – 22 August 2007 – until he re-attended on Mr Lennon on 26 September 2011. The evidence of the plaintiff was inconsistent to what his position was in August 2007. On one hand, he declared in his statutory declaration that his lack of activity following that meeting in August 2007 was that Mr Lennon had not followed up the meeting with any documentation, notwithstanding the plaintiff made no attempt to contact Mr Lennon over that period of time. Throughout this period, leading up to 2011, the plaintiff made various comments at various times that he did not really consider a common law claim because he thought he would improve, that he had psychological issues, and that he had not exhausted all types of treatment;
(e)Even when he returned to Mr Lennon on 25 September 2011, the plaintiff, again, being advised by Mr Lennon and subsequently by the barristers, Mr Stephen McCredie and Ms Caroline Mills, was lacklustre in his pursuit of making a serious injury application. As I have recorded, the serious injury application was not filed until 9 June 2016. Again, as I have pointed out, those acting for the plaintiff lodged an impairment benefit application on 11 October 2011 (seemingly on the advice of Mr Stephen McCredie of counsel) and, accordingly, no serious injury application could even be made until twenty-eight days after 6 May 2013.
However, as the records of his solicitors would indicate, the plaintiff was difficult to contact and took much time to return documentation or answer questions in relation to the preparation of his serious injury application over that period from 6 May 2013 to when the application was filed finally on 9 June 2016;
(g)Even then, the evidence is not clear as to why, or if indeed really the plaintiff wanted to make such an application, as various reasons were now given that he had been worn down by the Victorian WorkCover Authority and had ongoing mental health issues. Although it is clear that the plaintiff did have some ongoing mental health issues, the severity of such condition must be weighed by the absence of direct psychiatric care over this period of time, his ability to be involved with some share trading, take his children to school and to live at home, continuing to receive weekly payments of compensation.
113 I have formed the view that the reasons for the delay on the part of the plaintiff under paragraph (a) are because the plaintiff, although well appreciating the time limits involved in relation to a common law case and the need for the preparation of a serious injury application, made a conscious decision to ignore the limitation date probably – although in no way clearly – because he had the expectation his condition may well improve. This is not a case where the plaintiff had no basis for understanding the limitation limits or the consequences of those limits. As I have noted, the plaintiff was clearly an intelligent and articulate man who would have clearly appreciated these matters.
114 What is also not clearly explicable is that even when seen after September 2011, his solicitors commenced actively pursuing matters on his behalf – for example, making application for the Impairment Benefit – the plaintiff was incredibly slow to respond to many of the matters raised by his solicitors in preparation for the Serious Injury Application.
115 When one looks at paragraph (e), which enquires as to the extent to which the plaintiff acted promptly and reasonably once he knew 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, it cannot be said the plaintiff either acted promptly, which is clearly an objective evaluation, or reasonably, when taking all the evidence into account.
116 Again, when one considers paragraph (f), that is to say, 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, it is clear enough that he did receive expert advice from solicitors on at least two occasions prior to the limitation period, both of which supported making a common law claim and, in particular, the time limits associated with such a claim. In particular, when he saw the solicitor on 22 August 2007 and, indeed, later, when he saw the barrister, Mr Stephen McCredie, he was advised that there was potentially a good common law claim. However, nothing happened until at least 2011 and even then the steps taken by the plaintiff can only be described as tardy.
117 Accordingly, when one considers “the reasons for delay”, I consider that the plaintiff has allowed this to occur, well knowing the statutory time limit, but preferring to follow his own agenda, whatever that might precisely have been.
118 I now refer to paragraph (b) of ss(3) of s23A of the LAA, which directs that a court shall have regard to, among other matters, the extent to which having regard to the delay, there is, or likely to be, prejudice to the defendant.
119 In the circumstances of this matter, there is clearly presumptive prejudice to the defendant based on the principles enunciated initially by McHugh J in Taylor,[81] and later, the High Court Authority of Prince Albert College Inc v ADC.[82] Of course, the longer the delay, which I have found to be inordinate, the greater presumptive prejudice, and in this regard, I note the comments of McHugh J in Taylor when discussing the issue of presumptive prejudice.
[81](Op cit)
[82](Op cit)
120 In respect to actual prejudice, there is no issue between the parties that the actual pelletiser machine which the plaintiff was on at the time of his injury on 13 January 2003 is no longer in operation. However, I refer to the affidavit of the plaintiff affirmed on 1 October 2019,[83] wherein the plaintiff deposes that he attended the premises of the defendant on 13 September 2019 by way of a view in preparation of the forthcoming damages case. He notes that in his statement of claim he alleges injuries on three occasions:
(a)on 19 September 2001, when he was to unjam the hoist section of the palletiser machine;
(b)moving bottles from the bottle reject bin between approximately 30 September 2002 and 3 October 2002; and
(c)an incident on 13 January 2003, in which he was crouching in the hoist area of the palletiser machine, attempting to free a jammed pellet, when he slipped and suffered injury.
[83]See exhibit 5 at pages 277-279 PCB
121 The plaintiff further deposes that when he attended the view he observed that there were bottle reject bins which were very similar to that which he was working on at the time of the second incident and, accordingly, can be inspected so as to investigate the nature of the task he was performing at the time of the second incident.
122 In relation to the first and third incidents, he noted that the pelletising section of the machinery has now been replaced and he states that the machinery on which he was working consisted of a line that started with filling bottles with beverages, capping and labelling the bottles, placing the bottles into cartons and then (on the palletising machine) loading cartons onto the pallets. The pallets were then moved to a machine which stretch-wrapped the pallets. The plaintiff noted the palletiser section has been replaced. However, he deposes that examination of the documents provided on further discovery, which include a large number of photographs of the palletiser which were taken – so he understands – when the palletising section was replaced. He deposes such photographs adequately show such nature of the process performed by the palletiser.
123 In affidavit material relied on by the defendant,[84] Ms Dodgshun raises the issue that a circumstance report dated 23 April 2003 was sought by the insurer following the last incident of injury suffered by the plaintiff. In particular, the report contains a variety of photographs (already referred to), and describes photograph four as follows:
“This photograph depicts the telephone and instructions memo posted following an incident and injury that occurred in this area in September 2002. The telephone was installed to encourage workers to contact a team member or a member of the Maintenance Department should a pallet jam on this line. We were advised that the Claimant failed to contact another staff member for assistance on the day of the alleged incident and injury.”[85]
[84]See affidavits of Anna Kimberley Dodgshun, sworn on 14 August 2019, 12 September 2019 and 2 October 2019 at pages 4-49 DCB
[85]DCB 9
124 Ms Dodgshun notes that the memorandum was apparently included in the original report when it was produced in April 2003, however no copy of the memorandum was attached to the report and investigations with Allianz has failed to locate a copy of the memorandum.
125 Those acting for the plaintiff, in written submissions, assert that the terms of the memorandum are set out in the Plaintiff’s Court Book at page 92 and the terms of the memorandum are set out at page 79 of the Plaintiff’s Court Book (both these references are part of the Lyonswood Investigation Report).
126 Those acting for the defendant also highlight that the cause of action is, in part, based on breaches of the Occupation Health And Safety (Manual Handling) Regulations 1999. It is submitted that a successful defence of such a claim is dependent on the ability to produce documentation as to risk assessments of plant and work systems which, of course, would be relevant to meet any such claim. However, those acting for the plaintiff in their written submissions submitted that the discovery given by the defendant includes what appear to be risk assessments. In this respect, reference is made to the plaintiff’s Court Book at page 451, and it is submitted that there is no reason to suppose that there are other risk assessments that are missing and that it was clear that the defendant had retained significant amounts of contemporaneous documentation of the processes of risk assessment.
127 Again, those acting for the defendant submitted that certain witnesses could not be located, although it would appear that the plaintiff has located many of these witnesses and has contacted them. Of course, it is complete speculation as to what those witnesses may be able to say after the period of time that has now elapsed.
128 Seemingly, the two critical issues are the absence of the palletiser for present inspection and understanding, and the potential lack of risk assessments. Although I accept that the absence of the palletiser is not ideal, it cannot be gainsaid that there are a number of photographs of the palletiser and the ability, no doubt, of people to explain how they worked. Furthermore, I do consider that there has to be some risk as to the availability of all risk assessments and the like, and it is really not that clear as to the contents of the documentation to which the plaintiff now points as evidence of relevant risk assessments.
129 Be that as it may, I have come to the view that there is some actual prejudice, but that such prejudice probably falls short of being significant prejudice in all the circumstances. However, I do stress that given the inordinate time delay, presumptive prejudice carries some weight in a case such as this.
Conclusion
130 Having regard to all the circumstances of the case, including the various relevant paragraphs in ss(3) of s23A of the LAA, I decline to exercise the discretion to extend the period with which the plaintiff can bring his claim at common law against the defendant.
131 I should point out that if I be wrong in taking account of some evidence of actual prejudice to the defendant, I consider that the plaintiff has not discharged his onus in establishing that it is “just and reasonable” to grant the necessary extension given the circumstances surrounding the delay.
132 The Summons will be dismissed and I will hear the parties on the issue of costs.
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