Lean v The Pitstop Motor Group Pty Ltd
[2016] VSC 357
•23 June 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2015 00028
| SHIRELLE LEAN | Plaintiff |
| v | |
| THE PITSTOP MOTOR GROUP PTY LTD | Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 and 7 June 2016 |
DATE OF JUDGMENT: | 23 June 2016 |
CASE MAY BE CITED AS: | Lean v The Pitstop Motor Group Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2016] VSC 357 |
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CIVIL PROCEDURE – Limitation of Actions – Application for extension of period during which action may be brought – Whether just and reasonable – Delay – Plaintiff’s awareness of limitation period – Limitation of Actions Act 1958 (Vic) ss 5(1), 23A – Itek Graphix Pty Ltd v Elliott, considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin QC with Mr R Ajzensztat | Maurice Blackburn Lawyers |
| For the Defendant | Mr N Murdoch QC with Ms C Spitaleri | Lander & Rogers Lawyers |
HER HONOUR:
The plaintiff sustained injury in the course of her employment with the defendant in an incident which occurred on 17 October 2000. The plaintiff wishes to pursue a claim for damages against her former employer on the basis of negligence and breach of statutory duty. It is common ground between the parties that the relevant limitation period expired on 16 October 2006. The plaintiff is therefore out of time to bring this proceeding. By summons filed 12 February 2016, the plaintiff applied for an extension of time in which to bring her action against the defendant.
The issue for determination in this ruling is whether or not the Court should grant such an extension.
Summary
For the reasons below the plaintiff’s summons is dismissed.
Background
The following matters were not in dispute between the parties.
The plaintiff was working as a spare parts delivery driver for the defendant at the time of the incident on 17 October 2000 in which she was injured (‘the incident’). She made a workers’ compensation claim on 1 November 2000. She subsequently received payment for medical and like expenses and also weekly payments. In October 2009, the plaintiff made a claim for permanent impairment. The plaintiff subsequently elected to receive a nil settlement in respect of that claim. A week later, on 28 April 2014, the plaintiff lodged a claim for serious injury. On 22 August 2014, a Serious Injury Certificate was granted. On 7 January 2015, the writ in this proceeding was issued.
The effect of s 134ABA of the Accident Compensation Act 1985 (Vic) is that the period after October 2009, when the claim for permanent impairment was made, is disregarded for the purpose of considering the delay in bringing this application. Consequently, for the purpose of this application, the relevant period is from 17 October 2000 to October 2009, almost nine years. The relevant limitation period pursuant to s 5(1) of the Limitation of Actions Act 1958 (Vic) (‘the LAA’) is six years. This period commenced on the accrual of the plaintiff’s cause of action and expired on 16 October 2006.
The plaintiff was born in 1962. She was employed by the defendant from 18 January 1999 until March 2001, when her employment was terminated. After her employment with the defendant ceased, she did some part‑time work as a carer and also worked as a strapper in the horse racing industry. She has not worked since mid‑2002. She has sought medical advice in respect of the injury to her back from the day following the incident to date. She has received medical treatment in respect of the injury, which has included surgery to her back.
Submissions and evidence
The plaintiff and defendant both made written and oral submissions. The Court was assisted by the very able submissions of both counsel. It is unnecessary to reiterate the submissions. They are considered further below. Similarly, it is unnecessary to recite all the evidence. It has all been considered by the Court.
The evidence given in respect of this application is as follows:
(a) the plaintiff’s affidavit sworn 22 April 2016 (exhibit ‘P-1’);
(b) the plaintiff’s affidavit sworn 11 February 2016 (exhibit ‘P-2’);
(c) the plaintiff’s affidavit sworn 31 May 2016 (exhibit ‘P-3’);
(d) the viva voce evidence of the plaintiff given on 6 June 2016;
(e) affidavit of Emily Anderson, then the plaintiff’s solicitor, sworn 11 February 2016 (exhibit ‘P-4’);
(f) affidavit of Alexander Calic sworn 31 May 2016;
(g) affidavit of John Cavanagh, the defendant’s solicitor, sworn 31 May 2016 (exhibit ‘D-1’);
(h) affidavit of John Cavanagh sworn 3 June 2016 (exhibit ‘D-2’); and
(i) bundle of documents produced by the plaintiff following the defendant counsel’s call for production on 6 June 2016 (exhibit ‘D-3’).
Applicable principles
The relevant provisions of the LAA are ss 5(1)(a), 23A and 40. Section 5(1)(a) provides that the plaintiff had six years from her injury date, that is, from 17 October 2000, to commence these proceedings. Section 23A(1) applies to an action for damages for negligence or breach of duty where the damages claimed consist of damages in respect of personal injuries. Sections 23A(2) and (3) are pertinent to this application:
(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.
Section 23A(3)(d) of the LAA refers to ‘disability’. It is a term defined in s 3(2):
For the purposes of this Act a person shall be deemed to be under a disability while he is a minor or of unsound mind.
‘Disability’ in a wider sense, such as a physical injury, may still be taken into account as one of the ‘circumstances of the case’ in s 23A(3), if relevant.[1]
[1]Koumorou v State of Victoria [1991] 2 VR 265, 274 (Brooking J).
As the parties are in agreement about the effect of s 134ABA of the Accident Compensation Act s 134ABA (as discussed above), it need not be further dealt with.
The relevant principles were largely agreed between the parties. They have recently been summarised in a number of decisions.[2] The factors in s 23A(3) of the LAA are not exhaustive, but inclusive. The Court must have regard to all the circumstances of the case. The task of the Court is to synthesize the competing considerations and arrive at a conclusion that takes them all into account.[3] The Court has a wide discretion to extend time if it is just and reasonable to do so.[4] The plaintiff bears the onus of proving that it is ‘just and reasonable’ to extend the limitation period.[5]
[2]McKenzie v Positive Concepts Pty Ltd [2016] VSC 259 [7]–[8]; Davies v Nilsen [2015] VSC 584 [43]–[44].
[3]Tsiadis v Patterson (2001) 4 VR 114, 123-4 [33].
[4]Bell v SPC Ltd [1989] VR 170, 174.
[5]Ibid.
The defendant contended that another relevant principle is that a deliberate decision to allow a limitation period to expire is a powerful factor tending against the grant of leave.[6] The defendant relied on a decision of the NSW Court of Appeal, Itek Graphix Pty Ltd v Elliott,[7] in which Ipp AJA enunciated the following principle:
A deliberate decision to allow a statutory limitation period to expire would be a powerful factor against the grant of leave. Where a deliberate decision to allow the period to expire has been made, ordinarily it will be difficult to provide an explanation for that decision sufficiently cogent to warrant the grant of leave. There is ample authority to this effect. I have already referred to Gallo v Dawson.
….
In my opinion, to grant leave to sue long after the expiry of a limitation period, when the applicant has made a deliberate decision to allow the statutory period to expire, in the absence of special circumstances explaining satisfactorily the conduct of the applicant, would set at naught the purpose of the legislation.[8]
[6]T.62-64
[7]Itek Graphix Pty Ltd v Elliott [2002] 54 NSWLR 207 (‘Itek’).
[8]Ibid 225, 226.
Quoting the High Court decision of Gallo v Dawson,[9] Ipp AJA observed:
A case would need to be exceptional before a court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved… It would make a mockery of O 70, r 3 if, months after the time for appealing had expired, the unsuccessful party could obtain an extension of time on the ground that he or she had delayed appealing because that person wanted to research the issues involved. Lack of legal knowledge is a misfortunate, not a privilege.[10]
[9](1990) 93 ALR 479 (McHugh J).
[10]Ibid 481, quoted in Itek [2002] 54 NSWLR 207, 220.
Ipp AJA’s decision concerned NSW legislation that contained a broad discretion. That is, unlike s23A of the LAA, the NSW legislation did not contain an inclusive list of factors to be considered. Accordingly, the principle enunciated by Ipp AJA was based on a different legislative context. In the Victorian context, a deliberate decision to allow a limitation period to expire is simply a factor, falling within s 23A(3)(a),to consider in synthesizing the competing considerations.
The plaintiff contended that it is reasonable to wait until the seriousness of an injury is known before initiating legal proceedings: Gnoato v Beverley Hills Nominees Pty Ltd (‘Gnoato’).[11] Gnoato does not support such a broad principle. However, even if it did, it concerned a different factual matrix to the current proceedings. In contradistinction to the current proceeding, in Gnoato the plaintiff did not take legal advice soon after his injury. There are also other factors that distinguish Gnoato from the current proceeding. For instance, the application was made less than three months after the expiry of the limitation date.
[11](Unreported, Supreme Court of Victoria, Crockett and Southwell JJ, 3 October 1991); see T.84.
The plaintiff’s counsel submitted that a plaintiff cannot bring an application for extension of time before a serious injury certificate is granted because there is no right to extend: Millard v State of Victoria (‘Millard’).[12] A similar submission was rejected by the Court in Davies v Nilsen[13] on three grounds, including, relevantly the following:
the inquiry stage as to the matters contained in (a), (e) and (f) of section 23A of the Limitation Act is clearly directed to a claimant’s state of mind, and his or her actions in ascertaining or protecting his or her rights. It is not to the point that a serious injury application in, say, July 2001 would have been successful or that it would have failed. Rather, the Court examines all the actions of the claimant in the context of pursuing a common law claim (including any steps to secure a serious injury grant). This will be considered shortly.[14]
[12][2006] VSCA 29 [33]; see T.102-103.
[13][2015] VSC 584 [46]–[50].
[14]Ibid [47].
Further, the factual matrix in Millard may be distinguished from this case. In Millard, the plaintiff was illiterate and poorly educated. He retained solicitors who failed to act with sufficient skill and expedition. It was held that the neglect of the solicitors, which resulted in the expiry of the limitation period, should not be visited upon the plaintiff.
Consideration
The plaintiff first saw Maurice Blackburn lawyers on 14 May 2002.[15] Under cross-examination, she was asked:
When you went to see Maurice Blackburn that first time [14 May 2002], did you know that there were time limits applicable to suing people for compensation such as your employer?
She answered: ‘No, I didn’t.’[16]
[15]Exhibit P4, paragraph 2.
[16]T.10.
In her affidavit sworn 11 February 2016 in support of this application (‘the second affidavit’) she stated: ‘I did not understand until I saw Mr Salanitri [of Maurice Blackburn] at this time [on 18 August 2009] that there was a six-year time limit that applied to claims like the one I am bringing.’[17]
[17]Paragraph 16.
The plaintiff’s solicitors gave evidence of a letter dated 14 May 2002 (the same date as the consultation) that was sent to the plaintiff (‘the 14 May 2002 letter’).[18] It stated, inter alia:
If you have been injured in negligent circumstances, you are entitled to damages for pain and suffering and loss of enjoyment of life at Common Law. We confirm that you have six years from the date of the accident within which to pursue such a claim. We confirm your instructions that you were injured in the course of your employment on or about the 17 October 2000. Accordingly you have until the 16 October, 2007 within which to pursue a common law negligence claim. We advise that you must establish that you are suffering from a ‘serious injury’ as defined by the WorkCover Legislation prior to being able to recover damages at Common Law…
[18]Exhibit P4, paragraph 2. The letter is exhibit ‘EJA-1’ to the affidavit.
Whilst the reference to the six year period in the 14 May 2002 letter was correct, it is common ground between the parties that the actual date was incorrect. That is, the letter should have stated 16 October 2006.
In paragraph 9 of the second affidavit, the plaintiff deposed:
I am advised by my solicitor that a letter dated 14 May 2002 was posted to me that advised that the limitation date for my claim was 16 October 2007. Presently I do not recall receiving any correspondence at that time from Maurice Blackburn Lawyers. In any event, I was still hopeful that my condition would improve.[19]
[19]Paragraph 9.
In a third affidavit sworn on 31 May 2016 (‘the third affidavit’), the plaintiff deposed:
I refer to paragraphs 9, 10, 12 and 13 of my previous affidavit.
I have lived at [address] since about 1992. For a period of time before May 2007, I was not receiving all mail that had been posted to me. I became aware of this in early 2007. Around that time I received a letter of demand from [creditor] dated 26 February 2007 requesting payment of an outstanding debt.[20]
[20]Exhibit P3, paragraphs 3, 4.
During cross-examination the plaintiff was asked if she made any notes during the first meeting with Maurice Blackburn. She said that she did not but was given some by the solicitor. The following exchange then occurred.
Have you still got those? Possibly not.
You say ‘possibly not’? I’m not sure.
You haven’t seen them for a while? No
Do you know where they might be? In the box at home if I have them still.
…
But you have got a box of papers at home relating to your back injury? Yes.
Have you been through the box recently? Yes, I actually have.
Roughly when? March.
March of this year? Yes.
Was that with a view to anything in particular? Looking for Maurice Blackburn letters actually.
So those are the letters that we will come to but were sent to you in 2004 and 2005; is that right? I have earlier ones but I can’t find the ones in those dates.
All right. Have you brought the box with you today? No.
You weren’t asked to do that? There’s been no mention of my records of what I have at home to be brought to the court.
All right, but have you been asked, were you asked in March to go through your records at home in relation to your back injury? No.
Were you asked to do that earlier? No
Have you ever been asked to do that? No.
Before today? No.
If I asked you to, you could bring that box of papers to court tomorrow, couldn’t you? I could if I got a forklift.[21]
[21]T.12-13.
The plaintiff’s evidence then changed. She agreed that she would have got a letter from Maurice Blackburn after the first consultation.[22] In relation to the part of the letter referring to the six year period to bring a claim, she agreed she ‘probably remembered reading it but not as I sit here no.’[23] She presumed that the letter was in her box at home.[24]
[22]T.14.
[23]T.14.
[24]T.14.
Under further cross-examination, the plaintiff recalled something to do with a seven year limit.
Did you ever, as a result of looking at that letter, did you think it was a seven year limit, not a six year limit? I have a recollection of something to do with seven years.[25]
[25]T.15.
The plaintiff was then asked if she had provided the documents requested in the 14 May 2002 letter and agreed that she had.[26] She then gave evidence of a possible recollection of a six or seven year limitation period.
…you knew, as at or shortly after 14 May 2002 that you had either six or seven year in which to sue for compensation if you wanted to. That is right, isn’t it? Possibly.
When you say possibly, you don’t dispute that you got the letter; correct? No.
You read the letter at the time you got it? Yes.
You understood the letter at the time you got it? I think I did.
You were more than capable of asking for explanations if you didn’t understand it; correct? Yes.
But you didn’t do that at the time; correct? That is ask for explanations? I don’t recollect.[27]
[26]T.15.
[27]T.16.
The defendant’s counsel called for production of the plaintiff’s box. It was produced the following day. It contained the 14 May 2002 letter and a copy of a handwritten undated letter of reply from the plaintiff to Maurice Blackburn.[28]
[28]Exhibit D3.
The inconsistences in the plaintiff’s evidence lead the Court to conclude that her evidence is unreliable. Contrary to her evidence in the second affidavit supporting her application, she was aware of a limitation period from 14 May 2002 when she had her initial meeting with Maurice Blackburn. For the purposes of this application, it matters not whether she thought it was six or seven years.
The plaintiff deliberately let the limitations period pass. Mr Innes, a chiropractor, reported that on 8 November 2007 she told him that her case was now ‘outside the 7 years time limit’ [sic].[29] Under cross-examination the plaintiff did not dispute that she said that, but said she did not recollect the conversation.[30] This conversation occurred just over seven years after the incident. She could not recall if she was having regard to what Maurice Blackburn had initially told her about time limits.[31] Eight months earlier, Mr Innes said that the plaintiff had informed him, ‘All I want is my medical expenses covered and if I can’t get that I’ll get my solicitors onto it’.[32] Under cross-examination, the plaintiff agreed that she had said that:[33]
That occasion, 8 November 2007 [when the plaintiff saw Mr Innes], was just a few weeks after what would have been a seven year period from the date of your accident? Would have worked out to that too, wouldn’t it.
So what I’m suggesting is that when you spoke to Mr Innes on this occasion you had in your head that the seven years has just gone? It may have also come from the hydrotherapy pool talking to other people who had put claims in. I may have got information that way…[34]
[29] Report of Mr S Innes dated 8 November 2007. Exhibit ‘JWC-10’ to exhibit D1.
[30]T.32, 33.
[31]T.32.
[32] Report of Mr S Innes dated 7 March 2007. Exhibit ‘JWC-10’ to exhibit D1.
[33]T.31.
[34]T.33.
Under cross-examination, it was put to the plaintiff that given what she had said to Mr Innes about being outside the time limit, at that time she believed she had seven years from the date of the accident in which to bring the action, and that period had just expired. She agreed.[35] She later gave evidence that she did not recollect when she first thought she had a seven year period but vaguely thought there was mention of it at her first meeting with Maurice Blackburn.[36]
[35]T. 33.
[36]T.35.
Under cross-examination, the plaintiff also gave evidence of discussions in the hydrotherapy pool about time limits.[37] The evidence was that the plaintiff had been undergoing hydrotherapy since 2002.[38]
[37]T.34.
[38]T.34.
The plaintiff finally conceded, under cross-examination, that in 2007 she ‘possibly’ knew the time limit was coming up and let it go:
Despite the fact you knew it was coming up, you let it go, didn’t you? I think I was just having various medical things in between.
Yes, but what I am putting to you is that you knew in 2007, before 16 October, that the time limit was coming up and you decided to let it go? Possibly.
Probably? Well, I hadn’t had any intentions to sue.
I am asking about time limits and what you were thinking? It’s so far back.
Is that your answer? If – if that’s what I said to him [Mr Innes], it would have to be “Yes”, but I don’t know where I got the information from.[39]
[39]T.36-37.
Maurice Blackburn were diligent in informing the plaintiff of the applicable time limits. In addition to the initial consultation and the 14 May 2002 letter, it sent her a letter dated 3 August 2004 advising the plaintiff’s limitation date for a common law claim was 16 October 2006, a letter dated 13 July 2005 warning that her file would be closed if the firm did not hear from her within 14 days, and a letter dated 8 December 2005 warning the plaintiff that if the firm did not hear from her within seven days it would close her file, and that she had until 16 October 2006 to issue proceedings.[40] The plaintiff’s evidence is that she does not recall receiving these letters.[41] As discussed above, in her third affidavit the plaintiff deposed that mail went missing. Production of the box referred to in paragraph [27] above only resulted in the 14 May 2002 letter being produced. In the circumstances, the Court concludes that either the plaintiff did not receive the further letters from Maurice Blackburn, or did not retain them. It is surprising however that it was not until the time of her third affidavit that the plaintiff recalled missing mail.
[40]Exhibit P4.
[41]Paragraphs 10-13 of plaintiff’s second affidavit.
The plaintiff did not submit that she had taken advice on prospects and decided not to proceed. The letter from Maurice Blackburn dated 3 August 2004 indicated that she would have difficulty establishing she is suffering from a serious injury, and that she needed to obtain a serious injury certificate prior to commencing common law proceedings. However, the plaintiff says she did not recall receiving the letter.
It was submitted by the plaintiff’s counsel that there was a change in the plaintiff’s attitude regarding her claim upon the prospect of spinal surgery, and probably also a change in her advisers’ opinion regarding her injury. This is apparent from the appreciation by her advisers that the plaintiff had a serious injury when she met with them in 2009.[42] In her second affidavit, the plaintiff deposed that she saw Maurice Blackburn again on 18 August 2009 when her back pain deteriorated in May or June 2009.[43] She does not refer to the prospect of spinal surgery as the catalyst. Shortly afterwards, the plaintiff’s claim for permanent impairment was lodged, in October 2009. The plaintiff deposes that she first consulted Mr Malham, a neurosurgeon in May 2010, and he discussed the possibility of spinal surgery.[44] This was approximately nine months after the consultation with Maurice Blackburn. In January 2011, the plaintiff had back surgery.[45]
[42]T.88-89.
[43]Paragraph 15-16.
[44]Exhibit P1, paragraph 18.
[45]Exhibit P1, paragraph 18.
An awareness of the limitation period is not, in and of itself, fatal to the plaintiff’s claim. However, the delay is lengthy and the plaintiff has not given reliable evidence as to the reason for delay. Her evidence under cross-examination indicated she was aware that she could bring common law proceedings and believed her employer to be at fault.[46] She had not been able to work since mid-2002. She had experience in seeking and receiving compensation for personal injury. She had previously made a public indemnity claim and received compensation in respect of it.[47]
[46]T.9-10.
[47]T.10-12.
The plaintiff acted promptly after the incident in seeking legal and medical advice. She was certainly aware from 14 May 2002 that she could make the claim and deliberately let the period pass.
The plaintiff conceded that the length of delay is indicative of general prejudice, but did not consider there was specific prejudice to the defendant as the plaintiff reported her injury soon after the incident and the defendant had the ability to investigate it. Further, the defendant’s insurer has continued to pay for her treatment, and there are many medical reports in evidence. It was common ground that there was no specific prejudice to the defendant regarding medical evidence. The plaintiff referred to the evidence of an investigation in which statements were taken from three witnesses who could be called for evidence.[48] Further, another employee who did a similar job to the plaintiff is also available to give evidence.
[48]Circumstance investigation report by D.P.Thomas & Associates Pty Ltd dated 21 August 2014: Exhibit ‘JWC-5’ to exhibit D1.
The defendant asserted specific prejudice. Critically, the only witness of the incident (‘the missing witness’) is unable to be identified and has never given evidence.[49] The defendant says that it is not reasonable for all claims to be investigated as a potential common law claim. The defendant has been wound up. Personnel and other records are missing.[50] The missing witness may also be a tortfeasor who the defendant wishes to join in the proceeding. This is because the plaintiff alleges that while she was unloading a crate from a van the missing witness pulled it against the direction she was pulling in and she twisted her back.[51]
[49]Exhibits D1 and D2.
[50]Affidavit of John Cavanagh sworn 31 May 2016, paragraph 26.
[51]Plaintiff’s worker’s compensation claim for compensation, being exhibit ‘SL-2’ of exhibit P2.
The parties agree that liability will be in dispute at trial. The defendant is likely to be significantly prejudiced without being able to identify or locate the missing witness. There is also a real risk that the defendant will be prejudiced by the loss of records.
The plaintiff submits that the denial of this application will be devastating for her. She says that she has a substantial entitlement to common law damages and her claim is straight forward. She abandoned her permanent impairment claim to pursue this proceeding.
The Court must synthesise all relevant factors. The delay is lengthy, the plaintiff’s evidence for the reasons for delay was unreliable, she received timely legal and medical legal advice, she had not been able to work since mid-2002 because of her injuries, and she was aware from 2002 that she could bring common law damages against her former employer. The defendant is likely to be significantly prejudiced because of the combination of the effluxion of time, the loss of records and, critically, the missing witness. The consequences of dismissing this application will be harsh for the plaintiff. However, in synthesizing all the relevant factors, the Court concludes that it would not be just and reasonable to extend time.
Conclusion
The Court will make orders dismissing the application. It will hear the parties on costs and the appropriate orders.
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