Liddell v Willbiz Pty Ltd and VWA

[2010] VCC 1645

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-09-03595

STEWART WALLACE LIDDELL	Plaintiff
v
WILLBIZ PTY LTD	First Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	22 October 2010
DATE OF JUDGMENT:	27 October 2010
CASE MAY BE CITED AS:	Liddell v Willbiz Pty Ltd and VWA
MEDIUM NEUTRAL CITATION:	[2010] VCC 1645

REASONS FOR JUDGMENT

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Catchwords: Injuries suffered in the course of employment – application pursuant to

Limitation of Actions Act 1958 for leave to bring proceeding out of time.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P F O’Dwyer SC	Ryan Carlisle Thomas
with Mr S F Wubbeling
For the Defendants	Mr D Masel	Minter Ellison
HIS HONOUR:

Preliminary

1          The plaintiff suffered injury to his spine on 4 July 2001 in the course of his employment at an hotel owned and operated by the first defendant. At the time, he was lifting approximately forty cartons of beer from one pallet to another. The task was physically demanding and repetitive. He suffered pain to his mid back.

2          An MRI scan undertaken later in July 2001 showed some mild cord compression at T9-10 as a result of a disc bulge, and degenerative changes at L1-2 and L5-S1. He came under the care of Mr Andrew Danks, neurosurgeon, who performed surgery on 20 July 2001 and removed disc material indenting the spinal cord. While the surgery was successful, the plaintiff was left with pain in the mid to lower back, together with some permanent damage to the spinal cord, resulting in weakness in the lower limbs, loss of sensory perception and some degree of paraparesis. At the present time, the plaintiff is significantly affected by his spinal condition.

3          After a period of recuperation, the plaintiff returned to work in 2002 as a real estate agent and remained in that occupation until 2005.

4          The plaintiff deposed that in the course of his employment as a prison officer in the late 1990s, he had heard that the Kennett State Government had abolished the entitlement of workers to common law damages arising out of workplace injuries. Notwithstanding the ongoing pain and restriction in his spine, he considered he had no basis upon which to seek compensation and did not consult his current lawyers until July 2009. He did sign and submit a Claim for Compensation on 25 July 2001.[1] The Claim for Compensation was accepted and the plaintiff received weekly payments and payment of medical expenses.

[1]             Court Book (“CB”) 27-28

5 In August 2009, the plaintiff issued an application seeking leave to bring proceedings pursuant to s.134AB of the Accident Compensation Act 1985. The second defendant granted leave in December 2009.

6 On 3 August 2009, the plaintiff issued an Originating Motion seeking an extension of time pursuant to s.23A of the Limitation of Actions Act 1958 (“the Act”). On 13 April 2010, the plaintiff issued a Writ seeking common law damages as a result of the workplace injury. The Writ was issued outside the limitation period prescribed by the Act. This application concerns the application for leave to extend time pursuant to the Act.

The Evidence

7          Affidavits of the plaintiff sworn 11 August 2009 and 3 May 2010 were tendered.[2] The plaintiff’s wife, Jeannie Liddell, swore an affidavit of 3 May 2010 which was tendered.[3] The plaintiff’s solicitor, Mr Derks, swore affidavits of 5 May 2010 and 20 October 2010.[4] Mr Matthew Fasan, an investigator, swore an affidavit of 16 August 2010[5] which was tendered. Mr and Mrs Liddell and Mr Fasan were called to give evidence and be cross-examined.

[2]             CB 5 - 16

[3]             CB 17 - 19

[4]             CB 20 - 24

[5]             CB 25 - 26

8          In his first affidavit, the plaintiff described the circumstances under which he suffered injury, and the treatment which followed. He said that over the years his condition had gradually got worse and that his wife had pressured him into making an enquiry in 2009 as to whether there was any legal avenue by which he may obtain some compensation for his injury. In his second affidavit, he stated he attended the offices of his solicitors, Ryan Carlisle Thomas, on 15 July 2009. He deposed he had never before spoken to a lawyer about his injury.

9          He said that when he was working in the late 1990s as a prison officer, he had some involvement in the WorkCover system. At a meeting at the prison there was discussion that the Kennett State Government was to take away the right of workers to sue for workplace accident. He recalled it was a major issue at the time. In evidence, he said that notwithstanding the subsequent change to the Labor government, he was not aware that WorkCover legislation which was subsequently introduced, had restored such rights. He signed a WorkCover Claim Form and submitted on it 25 July 2001. That Claim Form was accepted by the WorkCover insurer.

10        Eventually, at the insistence of his wife, he went to see solicitors and was advised that the restriction on issuing proceedings for compensation for workplace injury, had been removed.

11        He acknowledged an investigator, Mr Fasan, telephoned, and then came to his home in approximately September 2001 to investigate his claim. At the time, the plaintiff was recovering from major spinal surgery. He did not recall the detail of the discussion, in particular whether the investigator asked if he had seen a lawyer. When advised that the investigator claimed he had been told he had seen a lawyer, the plaintiff denied this. He had not been to see any lawyer.

12        After leaving work as a real estate agent in 2005, and in combination with a number of other health problems, the plaintiff ceased work and has been in receipt of a disability benefit since.

13        The plaintiff deposed that the WorkCover insurer had paid medical and like expenses and weekly payments of compensation. The circumstances of his injury were the subject of a lengthy statement from him, and from his employer, taken by the investigator. The WorkCover insurer had obtained a number of medical reports, including from Dr Russell Hamilton and Mr David Chamberlain, orthopaedic surgeon, over the period from 2001 to 2002.

14        The plaintiff’s wife deposed that the investigator had telephoned and then attended at her house in September 2001. She said her husband had not obtained legal advice before speaking to the investigator and she would have known had he done so. In evidence, she said she had nagged her husband regularly over the years to do something about a claim for compensation for his injury. He had steadfastly refused to do so, saying to her that his right to bring proceedings had been lost. Eventually, in 2009, she walked past the office of Ryan Carlisle Thomas and made an enquiry. When told about it, her husband was irritable but subsequently an appointment was made.

15 The plaintiff’s solicitor, Mr Derks, deposed as to his involvement in the matter from when he first saw the plaintiff and his wife on 13 July 2009. He said that he explained the plaintiff’s entitlement to compensation, and the requirement to obtain leave from the Court pursuant to s.134AB to bring common law proceedings. It appears from Mr Derks’ affidavits that he acted reasonably and promptly to pursue the plaintiff’s claim and no issue is taken by Mr Masel that once apprised of his rights, both the plaintiff and his solicitors acted appropriately.

16        Mr Fasan, the investigator, noted that in September 2001, he was employed by DP Thomas & Associates Pty Ltd, insurance loss adjusters. The investigation file was tendered.[6] By his affidavit, Mr Fasan referred to his report, which stated:

“The claimant advised that although he initially spoke to a solicitor due to advice from a friend, he has not pursued legal representation and as such is not legally represented at this time.”

[6]             Exhibit B

17        He deposed that it was his practice in 2001 to ask a worker who had suffered injury as to whether he was legally represented. He stated he was certain he would have asked this question. In evidence, he agreed that he had telephoned the plaintiff’s house on 11 September 2001 to make arrangements to obtain a statement from the plaintiff. On 12 September 2001, he went to the premises of the employer, an hotel in San Remo, and obtained a detailed statement from the proprietor, Mr Peter Williams. On the same day he obtained a detailed statement from the plaintiff and there was no reference to representation by a lawyer. There was no diary note of the plaintiff telling him of legal representation. He agreed that the reference to legal representation would have occurred on the day of the telephone call, 11 September 2001.

18        The first draft of the report was typed on 14 September 2001. He said reports were generally prepared within 24 hours of the interview, but conceded that he may have dictated the report on 12, 13 or 14 September 2001. He would make investigations and do reports four to five times per week. He said it was possible he was attempting to recall the telephone conversation some two or three days later.

Application of the Law

19 Section 23A of the Act provides that a court may extend the time within which an action may be brought if it considers it is “just and reasonable” to do so. Section 23A(3) sets out various criteria to which a court shall have regard in determining whether to extend time. Those criteria include:

“(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 likely to be prejudice to the defendant;
. . .
(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.”

20        On behalf of the defendants, Mr Masel conceded that once the plaintiff had received legal advice in 2009, the steps that he and his solicitor took were appropriate and prompt. Further, pursuant to the provisions of the Accident Compensation Act, time ceases to run once the plaintiff made application pursuant to s.134AB of that Act, notably in August 2009. Mr Masel was unable to point to any specific prejudice suffered by the defendants because of the delay in the pursuit of the common law claim. It was clear that a Claim for Compensation was filed, investigations made and medical opinions obtained in 2001 and 2002.

21        The matters in issue in this application are:

ƒ Whether the plaintiff informed Mr Fasan, the investigator, that he had

sought and obtained legal advice in 2001;

[7] (1986) 186 CLR 541 per McHugh J at pages 551-554

ƒ	Whether in any event he had taken appropriate steps to obtain any such legal advice;
ƒ	While there was no specific prejudice suffered by the defendants, there was general prejudice given the lapse of time. The principles referred to in Brisbane South Regional Health Authority v Taylor[7] were of relevance.

22 In considering the period of delay for the purposes of s.23A(3)(b), the period is the whole period from 2001 to 2009[8] and not only the period after the expiration of the six-year limitation period.

[8]             Tsiadis v Patterson (2001) 4 VR 114

Conclusion

23        The first matter to determine is the factual issue of whether the plaintiff advised the investigator that he had seen a solicitor, and further, whether that was, in fact, the case.

24        I found the plaintiff and his wife honest and credible witnesses. I accept his explanation that at a workplace meeting the issue of the exclusion of workers from the right to compensation was raised. As a result, he considered that he did not have any basis to seek compensation, aside from the payment of medical expenses and weekly amounts in lieu of wages. This evidence was confirmed by his wife.

25        I found the investigator, Mr Fasan, a credible witness. He was frank about the fact that he had no recollection of the events which transpired in 2001 and relied upon his notes and report. At the time, he was investigating four or five incidents each week. While I accept that his usual practice was to ask workers whether they were represented, given that he had no actual note of the telephone conversation in which it was said there was reference to the plaintiff obtaining legal advice, and that there may have been a delay of some days in the preparation of his report thereafter, that it is probable, in the light of the evidence given by the plaintiff and his wife, that the investigator made some mistake.

26        In any event, I am satisfied that the plaintiff did not see a lawyer at that time and his first discussion as to his legal rights were with Mr Derks in 2009.

27 It is further put by Mr Masel, that pursuant to the provisions of s.23A(3)(f), that the plaintiff acted unreasonably in failing to seek legal advice over the years, particularly in the circumstances of his wife urging him to do so. It was reasonable, according to Mr Masel, that when there was a change to a Labor government after the Kennett government, that given the entitlement of workers to common law damages was a significant political issue, the plaintiff ought to have taken steps to investigate the matter to determine whether the legislation had been or was likely to change. The worker’s stubborn refusal to investigate his rights was a matter to be taken into account.

28        I do not find the stance of the worker in this regard unreasonable. I accept that he had formed a view as to his entitlement to common law damages. Over the years from 2001 through until 2009, in addition to his back condition, he suffered a range of other significant health issues. For a period, his wife had breast cancer. Any steps which he failed to take should be understood in the light of his family circumstances. Perhaps another person may have made further investigations, but the plaintiff’s failure to do so, in the light of his state of knowledge at the time, was not unreasonable.

29        Mr Masel further relies upon the passage of eight years as creating significant general prejudice to the defendants in being able to properly defend the common law claim. In Brisbane South Regional Health Authority v Taylor,[9] McHugh J referred to deterioration in the quality of justice over lengthy periods of time. He noted that prejudice may exist without anyone actually realizing that matters had been forgotten. Time will diminish the significance of a known fact or circumstances and its relationship to the cause of action. The longer the delay, the more likely a proceeding will be decided on less evidence than was available at an earlier time. His Honour referred to the importance of limitation periods provided in legislation.

[9]             (supra)

30        Even bearing in mind these cautions, I am not satisfied that the extent of the general prejudice suffered by the defendants is such as to warrant refusal to extend the time. The defendants had the opportunity and did in fact investigate the circumstances of the incident at the time. It has available to it medical opinions obtained in 2001 and 2002.

31        In my view, it is “just and reasonable” to extend the time within which the plaintiff may bring a common law proceeding.

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