Mabbett v Josef & Sons Contracting Pty Ltd

[2006] NSWSC 1452

CITATION:	Mabbett v Josef & Sons Contracting Pty Ltd [2006] NSWSC 1452
HEARING DATE(S):	7.11.05, 8.11.05, 15.12.05, 1.2.06, 10.3.06, 2.6.06, 15.6.06, 6.11.06
JUDGMENT DATE :	6 November 2006
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
DECISION:	Leave granted to plaintiff to proceed on his statement of claim against the first defendant.; The limitation period has not expired in respect of the action against the second defendant; Liberty to apply in relation to the question of costs.
LEGISLATION CITED:	Law Reform (Miscellaneous Provisions) Act 1946 s26 Limitation Act 1969 s52 Motor Accidents Act 1988 s 52(4) Occupation Health and Safety Act 1983 Workers Compensation Act 1987 s151D
CASES CITED:	Creevey v Barrois [2005] NSWCA 264 Kotulski v Attard [1981] 1 NSWLR 115 Salido v Nominal Defendant (1993) 32 NSWLR 524 South Brisbane Regional Health Authority v Taylor (1996) 186 CLR 541 Tekno Ceramics Pty Limited v Milat [2003] NSWCA 254
PARTIES:	Sidney Mabbett by his tutor Noeline Apiata (Plaintiff) Josef & Sons Contracting Pty Limited (In Liquidation) 844 537 (First Defendant) New South Wales Land & Housing Corporation (Second Defendant)
FILE NUMBER(S):	SC 12296/04
COUNSEL:	A J Bartley SC, J R K Pryde (Plaintiff) T M Wardell (First Defendant) D L Ronzani (Second Defendant)
SOLICITORS:	Carroll & O'Dea (Plaintiff) Edwards Michael Moroney Lawyers (First Defendant) McCabe Terrill Lawyers (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

6 November 2006

12296/04 - SIDNEY MABBETT BY HIS TUTOR NOELINE APIATA v JOSEF & SONS CONTRACTING PTY LTD AND 1 OR

JUDGMENT

HIS HONOUR:

Introduction

1 This is an application for leave to commence proceedings against the first defendant, an employer, for negligence under s151D of the Workers Compensation Act 1987 (the Act). It is also sought to add the second defendant, in respect of whose liability the Limitation Act 1969 applies.

2 Section 151D of the Workers Compensation Act 1987 in substance provides that a person to whom compensation is payable under the Act is not entitled to commence proceedings for damages against an employer in respect of an injury more than three years after the date on which the injury was suffered, except with the leave of the court in which the proceedings are to be taken. Sub-section 151D(3) provides that the Limitation Act does not apply in respect of such proceedings. It follows, amongst other things, that any disability suffered by the plaintiff does not, of itself, suspend the running of the limitation period. That is not, of course, to say that it is irrelevant. I will return to this aspect of the case in due course.

3 So far as the second defendant is concerned, the relevant legislation is the Limitation Act 1969. Section 52 of that Act suspends the running of the limitation period where the putative plaintiff “is under a disability”. “Disability” is defined in s11(3) of the Act, relevantly, as arising “while the person is, for a continuous period of 28 days or upwards incapable of, or substantially impeded in, the management of his or her own affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of … any disease or impairment of his or her physical or mental condition …”

The first injury

4 On 3 March 1993 the plaintiff Sidney Mabbett, then aged eighteen years, was admitted to Royal Prince Alfred Hospital in Sidney with head injuries and a history of having fallen ten metres at a demolition site. On arrival in the Emergency Department the plaintiff was noted to be conscious but irritated and able to move all limbs. He had a Glasgow coma scale score of 10/15. There were three lacerations over the right side of the head and a hematoma at the right side of the forehead. Various investigations occurred including, of course, x-rays and CT scans. It was noted that the plaintiff suffered a diffuse head injury resulting in a left temporoparietal contusion and a basal skull fracture.

5 The plaintiff was initially managed in the intensive care unit but, on the following day, was able to be moved to a standard ward. He was discharged from hospital on 9 March 1993 to be followed up as an outpatient to receive psychometric testing and be seen in the eye clinic. The CT scans demonstrated significant head injury. The plaintiff was followed up in the surgical outpatient clinic on 16 March 1993, when his condition was described as well as well with no problems. Neurologically no abnormalities were noted. Further review was indicated. He failed to attend his appointment made for the following week but then attended on 29 March 1993 in the Emergency Department complaining of falling, confusion and a decreased memory. On examination, there were no focal neurological abnormalities and an impression was gained that the patient had confusion and amnesic episodes secondary to a head injury.

6 When seen at the Institute of Clinical Neurosciences on 30 March 1993 the plaintiff was noted to have presented with confusion, poor short-term memory, headache and dizziness. The Neuro-surgical Registrar noted –

“On examination he was an alert orientated male who had an inappropriately cheerful affect. He had poor short and long-term memory. He had difficulty with comprehension and interpretation of abstract thoughts. He had poor concentration with secondary poor calculation. He had no other focal neurological deficit. Initial investigations performed included a full blood count and electrolytes which were normal. A repeat CT scan showed the presence of a left parietal temporal CSF hygroma with secondary encephalo-malacia.
He was reviewed by Ophthalmology who felt that he had a convergence insufficiency which should spontaneously settle. He had a Neuropsychology assessment who [sic] felt that he was still suffering the acute effects of his closed head injury from three weeks prior but felt that formal assessment should wait another five weeks. It was felt that he did not need any form of rehabilitation therapy at this stage. Thus, Sidney was able to be discharged with a follow up review by Neuropsychology in five weeks time.”

The second injury

7 On 19 June 1993 the plaintiff was again admitted to hospital – this time the Prince of Wales Hospital – in the early hours of the afternoon. He presented following a blow, it was said, with a large four by two piece of wood to the right apex of the skull. The hospital records note that loss of consciousness was queried for a short period. However, his Glasgow coma score on admission was 15 and he was conscious and oriented. On the day of his admission, he was taken to theatre where findings were of deep ragged degloving scalp lacerations over the entire vertex of the scalp and contamination with hair and dirt. The scalp was shaved and scrubbed with hydrogen peroxide and the lacerated edges were debrided and all lacerations then sutured. Post-operatively, the plaintiff received neural observations and intravenous antibiotics and dressings to the scalp. A CT scan showed extensive swelling in the soft tissues of the scalp consistent with the known laceration and soft tissue injuries. There was a calvarial fracture without depression in the right temporal region. Other matters were noted but it is not necessary to refer to them. The plaintiff’s postoperative recovery was uneventful and he was able to be discharged on 23 June 1993. He was instructed to continue with antibiotics and a letter was given to him to take to his local practitioner. There is no note that he needed to or did return to the hospital.

Workers compensation claims

8 The documents are set out here. It will be necessary to comment on them later in this judgment. On 23 March 1993 the plaintiff submitted an Employee’s Compensation Claim Form addressed to Josef & Sons Contracting Pty Limited, the first defendant. This claim related to the injuries that required the first admission to hospital set out above. The claim asserts that the accident occurred in the following way –

“I was working in a scissor lift, I undid my harness to reach for oxycutting equipment. I lost my footing and fell.”

9 The witness was said to be one Dave Brown of 2 Wesley Street Greenacre. The employer’s report of injury addressed to NZI Insurance dated 23 March 1993 mentions Mr Dave Brown as a witness to the accident, does not mention a scissor lift but states “lost balance whilst reaching for oxycutter”. The register of injury states: “Cause of injury: lost footing”.

10 Liability for weekly payments for compensation and medical expenses arising from the accident was accepted by the insurer until 11 May 1993, on which date the insurer was assured that the plaintiff had been medically cleared to return to work. On about 12 May 1993 the plaintiff resigned his employment with the first defendant, allegedly giving the reason, “I will be seeking work elsewhere”. It appears that the workers’ compensation claim file was then closed and no further investigation was undertaken at that time.

11 Nothing further was heard by the insurer concerning the plaintiff’s injury until his solicitors notified them on 17 October 1995 that they had been instructed on his behalf to advise him, (implicitly, in relation to his injuries suffered on 3 March 1993) and asking for copies of various documents and details of payments. The insurer forwarded its file to the plaintiff’s solicitors on 4 December 1995.

The solicitors make enquiries

12 At this time the plaintiff’s solicitors were Messrs Carroll & O’Dea and the solicitor having carriage of the plaintiff’s matter was Mr Stephen Dickson. He said that his initial conference with the plaintiff occurred in October 1995. The plaintiff’s instructions were that he had been injured in a work accident in 1993 when he fell about fifteen feet from a gutter whilst working for the first defendant and that he suffered a second accident when hit by a sheet of metal at Mascot while working for George Brown Demolitions. He told Mr Dickson he had returned to New Zealand and had only recently come back to Australia. He said that he had poor memory since the accident and that the solicitor could contact his brother, Doug or his sister, Noeline Apiata for further information. Ms Apiata is the plaintiff’s tutor for the purposes of this litigation.

13 Mr Dickson said that he formed the impression that the plaintiff was vague and had a poor memory. He advised him that it was necessary to contact doctors in relation to his claim. He said that he also advised the plaintiff that there was a three-year time limit for negligence claims but that he was not in a position to advise him at that stage whether such a claim could be brought. Mr Dickson then proceeded to gather information for the purpose of enabling him to advise the plaintiff. It is not necessary to detail the steps he took. I note merely that those inquiries seem to have been reasonable and appropriate.

14 In January 1996 Mr Dickson telephoned the plaintiff’s brother in law Mr Apiata and then his sister Ms Apiata, ascertaining that the plaintiff had gone back to New Zealand and was living with his sister. He was also informed that the plaintiff had been diagnosed with schizophrenia, although there was no family history of a psychiatric nature. Mr Dickson asked Ms Apiata to try to get in touch with Sidney for him to make contact. Over the following several months there were further telephone discussions with Ms Apiata. During this period identification of the potential respondents or defendants to proceedings were still continuing; the appropriate insurers had not been identified.

15 Mr Dickson was also attempting to obtain full medical records relating to the two accidents. It is obvious that the fact that the plaintiff had been injured successively within a relatively short timeframe and suffered head injuries on each occasion was a complicating feature of his case. In May 1996 Mr Dickson spoke to the plaintiff’s sister, Lena Mabbett in New Zealand. He informed Lena that information about the plaintiff’s current treating doctors was urgently needed. Lena informed Mr Dickson that she could not give him information about the plaintiff’s doctors, that the plaintiff had been staying with her since April, had previously been somewhere “up north” doing some kumara cutting, that he was normal prior to the accident, indeed hyperactive, always working and able to think for himself but that now he was no longer a normal person, was very vague, sometimes good and sometimes bad, that he was being treated by a doctor and taking medication for depression and may have schizophrenia. Later that day, Mr Dickson was able to speak with the plaintiff by telephone. The plaintiff told Mr Dickson that he had returned to New Zealand in October 1995, that he was not then receiving treatment but had been treated by a doctor and a neurologist whose details he was able to provide. He told Mr Dickson that he had been diagnosed with schizophrenia and had been given “needles and medication”. He confirmed that there had not been a family history of schizophrenia.

16 Following those conversations and in light of the investigations that had occurred to that time, Mr Dickson wrote to the plaintiff on the following day, 21 May 1996 a lengthy and detailed letter that summarised the medical evidence that had been thus far obtained noting, in particular the report of Royal Prince Alfred Hospital of 14 February 1996 stating that “your problems seem to have resolved and that you are coping as well as before the accident and that you were declared fit for work”. The letter advised the plaintiff that he had a right to claim workers’ compensation benefits for any lump sum impairments that he may have sustained arising from his head injury and any resulting loss of earning capacity, together with medical treatment expenses. A number of questions were asked as to whether he had indeed been diagnosed as suffering from schizophrenia, when he became aware of the condition, what medication he was taking and so on. Details of medical treatments since returning to New Zealand were also sought as well as information about his work history. Mr Dickson advised that the details of the accident as stated in the claim form suggested that the employer may have been negligent and asked for further information about his fall. Mr Dickson pointed out to the plaintiff that it was crucial to ascertain whether he was required to work in “a dangerously high position without a safety harness” for the purpose of determining whether there was a viable claim of negligence against his employer. The plaintiff was informed that, in addition to any workers’ compensation rights he may have had, he might be entitled to bring a common law damages claim if it could be proved that his employer was negligent. He was also informed that the medical evidence then available did not appear to establish that the plaintiff’s injuries exceeded the twenty five percent threshold required to bring a common law claim. Moreover, the material available as to the circumstances of the accident was insufficient to give conclusive advice about the possible negligence of his employer. The time limit of three years from the date of accident applying to common law damages claims was pointed out to the plaintiff and he was informed that it expired in this respect on 3 March 1996. However, the plaintiff was also told that, where a worker was not aware of the full nature and extent of his injuries or their cause, the Court could permit him to bring a claim notwithstanding that it was out of time. Mr Dickson noted that investigation of the matters he had identified in the letter were necessary in order for an application for an extension of time to be made.

17 In August 1996 Mr Dickson left the employment of Messrs Carroll & O’Dea and passed the matter to another solicitor in the firm, Mr Harrison. For various reasons which do not need to be presently detailed, he was of the view – and I think this view was correct – that the material then available did not permit advice then to be given to the plaintiff whether a common law claim should be pursued in relation to either or both of the accidents of March and June 1993 for the reasons, in substance, that further information was needed as to the circumstances of the accident, the identity of the employer in the second accident, the precise medical consequences of that accident and whether the plaintiff’s injury would exceed the common law threshold. A further complicating feature was the fact that commencing proceedings for common law damages constituted an irrevocable election under s151A of the Act that would forfeit all his rights pursuant to s66 and 67 of the Act to lump sum compensation.

18 On 17 October 1995 Messrs Carroll & O’Dea had written to Josef & Sons Contracting Pty Limited asking a number of questions about the plaintiff’s employment. The reply appears to have been provided by Sue Josef on 11 July 1997. In answer to the question whether Sidney Mabbett was employed by the company at the time of the accident on 3 March 1993 the answer given was “Yes”. The claim forwarded to the first defendant’s insurer notes Dave Brown as a witness and is signed by Susan E Josef as the employer. Furthermore, the employer’s report of injury identifies the first defendant as the employer. As will be seen, the position was by no means quite so simple.

19 (I also note that the letter notifying Josef & Sons Contracting Pty Limited of the defendant’s termination of his employment uses a typescript or font which is identical to that used in a letter on the company’s letterhead addressed by Susan E Josef to the company’s insurers dated 23 March 1993 and several other letters.)

20 As I have mentioned, following Mr Dickson’s departure, the file was taken over by Mr Harrison who was responsible for it until September 1997 when it was given to Mr Colin Magee to deal with. Mr Harrison has provided an affidavit describing how the matter proceeded whilst he was directly responsible for the file. I do not intend to set out what he did. It seems to me that his enquiries proceeded with reasonable dispatch in all the circumstances and were adequate. It is important to note, however, that Ms Apiata spoke to Mr Harrison’s secretary on 17 October 1996 to advise that the plaintiff’s condition had got worse and that “he is unable to comprehend matters”. The plaintiff was then in New Zealand and Ms Apiata was in Sidney, this making it more difficult to get the necessary documentation and provided to the solicitors. She said that she was the one who wanted the claim – I think the workers’ compensation claim – to go ahead for her brother. He suggested that another possible line of communication of the plaintiff was through his two brothers who were then living in New Zealand.

21 On 24 November 1996 a Dr Revell of the Saint Andrews Medical Centre in Hamilton New Zealand, a general practitioner, replied to the plaintiff’s solicitors enquiries with a report that indicated the following. Dr Revell first saw the plaintiff on 13 October 1995 when he had lost his temper and hit his right hand on a drinking glass, which broke causing lacerations to the back of his right hand. He was apparently brought in by his family, who complained that the plaintiff appeared to have auditory hallucinations and lacked concentration. Dr Revell thought it likely that he had a form of schizophrenia and, as he refused to see a psychiatrist the plaintiff was given a series of three injections of Depixol (I think an anti-psychotic drug) between 13 October 1995 and 17 November 1995. The plaintiff had not thereafter returned to see Dr Revell who noted, however, that he seemed to improve according to reports from the plaintiff’s family. Dr Revell said that the plaintiff did not give a history of head injury while working in Australia and that, although he diagnosed schizophrenia with paranoid delusions, he agreed completely that the presentation of the plaintiff was equally consistent with someone who had suffered a severe head injury. Dr Revell said that, had he known of such an injury, he believed that from the history and findings that he made at the time he saw the plaintiff he would have considered that most of the presenting picture would have represented the affects of head injury. Dr Revell said that he believed (I think informed by the family members) that, following the injections, the plaintiff heard no more voices but he thought that he was still considerably disabled though much improved. Dr Revell thought that, if the plaintiff’s problem was primarily schizophrenia, he would not have expected so little treatment to eliminate hallucinations with such rapidity and apparently permanently. Dr Revell thought that the plaintiff’s condition had stabilised but that recovery was only partial and very slow. He said that when he last saw the plaintiff he was not fit for work of any kind and certainly his pre injury job and thought that this would not change. He confirmed that the family told him that before the accident the plaintiff was “pretty much a normal person”.

22 I have already mentioned that, following enquiries made by the plaintiff’s solicitors on 17 October 1995, the insurer provided its file on 4 December 1995. I have noted above that the letter of 17 October 1995 did not actually make a claim for workers’ compensation benefits or common law damages. Nevertheless, it would have been clear enough to the insurers that the question whether such a claim or claims might be made was being considered, else there would have been no point in making the enquiry for the documents. As it happened, however, nothing further was heard by the insurer until the plaintiff’s solicitors wrote on 17 October 1996 seeking copies of medical reports and certificates held by the insurer under s134 of the Act. Although there was no specific claim, the insurer arranged for a medical examination to be conducted on the plaintiff on 17 November 1996 but which the plaintiff was unable to attend. He was in New Zealand at the time, as I understand it. This arrangement, of course, indicated that the insurer was alive to the possibility that there might be some further claim forthcoming and, in that event, it was desirable that a medical examination should be conducted as soon as possible.

23 On 18 March 1997 the plaintiff’s solicitors provided to the first defendant medical reports from Dr Cliff (consultant psychiatrist) of 16 December 1996 and Dr Revell of 24 November 1996. In his report, Dr Cliff expressed the opinion that the plaintiff had suffered a severe open head injury on 3 March 1993, which resulted in a significant degree of cerebral concussion, which persisted for some time. The second injury on 19 June 1993 compounded the effects of the earlier brain damage. Dr Cliff opined that the plaintiff had been “consistently suffering from a post-concussional syndrome since the original accident, compounded by the effects of the second accident, and resulting in significant impairment of his state of mind.” He thought that the plaintiff’s condition had not stabilized and made the following observation –

“Although he was at best an average student at school, he was by all accounts a sociable, hard-working and generally competent individual; he is now feckless, reliant upon family assistance for work and oversight with regard to some everyday activities such as financial management etc…”

24 (Dr Cliff conducted psychometric tests on the plaintiff on 20 March and 2 April 1997. In his report of 3 April 1997, he said he thought that the plaintiff performed “surprisingly well” given his history of head injury and the changes in his thinking and behaviours which had been described by both the plaintiff and his brother in law. Dr Cliff thought that the plaintiff’s attention and concentration appeared to be intact and that his mediocre performance in tests of verbal skills was likely to be a function of poor education rather than focal brain damage. However, Dr Cliff pointed out that “psychometric tests cannot adequately evaluate such concepts as personality function, mood control and stability, the finer elements of perception, or to any sophisticated extent such concepts as judgment, motivation, social skills or moral issues”. He also pointed out that the plaintiff’s mental state could fluctuate quite considerably and be particularly dependent on his circumstances, contrasting the fact that testing was undertaken in “an air of quiet cooperation” and noting that under any stress, particularly of a social nature, “he reportedly decompensates quite badly”. Dr Cliff concluded that, although “discrete psychometric tests have not revealed any significant intellectual deficits indicative of focal brain damage”, he remained of the opinion that the plaintiff, “in terms of broader aspects of personality, mood function or social disposition… is still significantly impaired”.)

25 It was not until early March 1997 that the employer at the time of the plaintiff’s first accident was definitely identified as the first defendant. On 19 March 1997, an Application for determination was filed in the Workers Compensation Court naming the first defendant as respondent claiming weekly payments, describing the nature of the injury as head injury and brain damage. It was served shortly after. The point is made by Mr Truda, the first defendant’s solicitor that, having previously accepted liability to pay workers’ compensation, the insurer had no reason to further investigate the circumstances of the accident itself.

26 In May 1997 particulars were requested, notification was provided by the respondent’s solicitors concerning obligations to the Health Insurance Commission and an answer served. In the following month, documents were produced on subpoena in the Compensation Court. The plaintiff arrived in Sidney on 3 September 1997 from New Zealand, essentially for the purpose of conferring with his legal advisers and to attend medical examinations arranged by the first defendant with Drs Ravai, Roldan and Terenty. These examinations occurred on 3 and 4 September.

27 A conference was conducted on 3 September by Mr Colin Magee to whom the file had then been passed by Mr Harrison. I would infer that the plaintiff was accompanied by Ms Apiata. Instructions from the plaintiff were obtained about relevant matters including work history, circumstances of employment, the circumstances of the accident, the plaintiff’s medical condition and treatment, continuing disabilities, employment history and so on. It was obvious that further medical consultations were necessary and the possible relationship between the injury suffered in the first and the second accidents further investigated.

28 The plaintiff made a statement for his solicitors on 3 September 1997 concerning the accident of 3 March 1993. That statement said –

“To the best of my recollection, the circumstances of the accident were that I was asked by one of the foremen or other workers to go with him with oxy equipment to cut away some purlings from a roof. I recalled having seen other workers up there on that part of the roof before and they were standing on the guttering part of the roof while doing that work. I therefore assumed that that was a safe place to do the work from and that was where I was directed to do work from. Whilst standing on the guttering, the guttering must have cracked and fallen away, causing me to fall.
I confirmed that I was not wearing a safety harness, nor were there any safety lines available on the job. We were not given, nor were we instructed to wear safety harnesses or to use safety lines.”

29 The plaintiff referred to the accident report form which bore his signature and noted that it refers to standing on scissor ladders when he unclipped his safety harness. He said that this was not the way the accident happened. Furthermore, he said, it is in the handwriting, he believed, of one Susan Josef, who was related to the owner of the company. He said there were no scissor lifts or ladders available on the job and the circumstances were not as set out in that document. At the time of the accident, the plaintiff said that he was working “with a fellow called Justin and also a fellow called Kelvin [who] would both remember the circumstances of the accident and I am sure they would confirm that there were no safety harnesses or safety lines in use on the demolition site”. The plaintiff said that he thought that he signed a workers’ compensation claim form when he went to his employer’s office shortly after he was released from hospital at which time he was still suffering “substantial difficulties and suffering dizzy spells, confusion and difficulties with falling”. The plaintiff said that he was certified fit to go back to work on 11 May 1993 and that this was “largely because I was very sick of being at home and didn’t want to stay on compensation any longer”. He said that he went to the doctor and asked for a certificate certifying him fit to return to work. He believed that he was informed by someone at Josef & Sons that to get off compensation he had to resign from his employment. That is what he did. (I would make the comment that this scarcely seemed a sensible thing to do for a man who was or might have been unwell.)

30 A statement of 15 February 1996 from Justin Moanaroa confirms in broad terms, with the addition of some details, the plaintiff’s statement. In a supplementary statement of 6 May 2002, further details are added in particular as to the involvement of Brown Brothers as subcontractors on the site.

31 Although it is out of chronological order I should mention here some further statements. A statement of a Mr Kelvin Teniti dated 9 June 2002 supports the plaintiff’s account. He also confirmed that a scissor lift was not involved in the accidents in any way and that although there were scissor lifts on the site elsewhere they were not involved “in our job on the roof of that building”. Statements of Rewi Paepkau of February 1996 and January 2001 concerning the second accident were also taken.

32 The statement of Ivan Douglas Mabbett, the older brother of the plaintiff, made on 5 May 2002 is more problematical. In it, he says that he happened to be working at the Royal Prince Alfred Hospital when the plaintiff was brought in. When he saw him, the plaintiff was conscious but in pain and, when asked what happened, said that he was standing on the gutter and that a piece of wood fell and knocked his feet out from under him. Ivan Mabbett’s statement refers to another statement made by the plaintiff to the WorkCover Authority inspector Ian Tyler to the effect –

“On the 3rd March 1993 I was working at Camden Street, Newtown. I just went up to see what the boys were doing, in the scissor lift. I got the oxycutter to cut some bolts they passed up to me from the ground. I returned the bolt cutters and handed it back and all I remember is slipping off”, maintaining, “No it was safe, I just fell over, the floor must have been slippery” and confirming that he was on the deck of the scissor lift.

Ivan Mabbett was asked why his brother would have said he fell off the scissor lift when he actually fell off the roof. Mr Mabbett said –

“Well that is my fault. I told him to say that. He was off sick and not getting any money. I spoke with Dave and Brian Brown. Their brother John is a friend of mine. He lives in Sidney. They did not have insurance so they could not make a claim but Robbie Josef could because he had workers’ comp insurance. Robbie agreed to do it but would not say that anyone fell off the roof where he was working without a belt. The claim had to show that it was Buster’s [the plaintiff’s nickname] fault so Robbie would not be in trouble for unsafe practices. I told Buster what he had to say. After that he got paid. Everybody thought Buster was all right. Nobody knew he was as badly hurt in the head as he turned out to be. If I had to then I will tell the truth and admit that I did what I did and that Buster only told the story about falling because I told him to do it so we could get some compo money. He did it because I told him. He was just a kid then.”

33 Further information about the position of Dave and Brian Brown who were, as I understand it, running a subcontracting demolition business and who were on the site, is contained in Ivan Mabbett’s statement. It appears, however, that they did not have workers’ compensation insurance.

34 A conference with Mr B W Kops of counsel was arranged for the plaintiff to obtain advice primarily in respect of his workers’ compensation claim but also as to his common law rights. That conference occurred in mid September 1997. The plaintiff and his sister attended together with Mr Magee. Mr Kops took a further history relating to the first and second accidents. He gave a preliminary advice orally to the plaintiff and his sister concerning, amongst other things, the option to continue with the workers’ compensation claim or, alternatively, commence common law proceedings. Mr Kops outlined the associated benefits and risks of these courses of action. During the conference, according to Mr Magee’s recollection, Mr Kops expressed concern about the plaintiff’s capacity to provide instructions and queried whether it was necessary to appoint a tutor for him. On 25 September 1997 Mr Kops advised the plaintiff in writing about his claim against the first defendant. In his advice, Mr Kops noted the following –

“In conference, the applicant presented somewhat strangely. Sometimes he was quite good in his understanding of things and would understand what was being asked and reply quickly and accurately. Other times, when asked something, he would just rail off into words which I could not understand and whenever anything was too difficult, would chortle with laughter, sometimes appearing to be laughing at his own situation or some of his own behaviour”.

35 This advice addressed a number of relevant issues and it could not be suggested that it was other than entirely appropriate. Amongst other things, Mr Kops concluded that the plaintiff was not the best person to give information about what was happening on the building site when he suffered the first injury. Mr Kops noted that the plaintiff appeared to deny the assertion contained in the claim form which he signed that he was working on a “scissor lift” and denied that he had undone his harness to reach for any oxycutting equipment. He told counsel that he was not wearing a harness and they were only provided with a cherry picker machine which he was not using. The plaintiff’s recollection was that, in fact, he was standing on the guttering and other people had been standing on the guttering to remove pieces of a boiler and he thought it was safe to do so, when in fact it was not and he fell some ten metres to the ground. The plaintiff told counsel that the claim form was signed by him at a time when he was still suffering from the effects of the fall and he did not check its details. Mr Kops noted that in conference Ms Apiata had indicated a preference for the plaintiff to choose what he termed the workers’ compensation path, rather than the common law path. Mr Kops noted that there might be good reasons for the plaintiff to retain the income and medical support of ongoing workers’ compensation. He gave it as his opinion that, “unless the client expresses a strong view to the contrary, he should not proceed at common law unless before electing to do so it can be said with confidence that negligent and/or breach of statutory duty can be established and there is a fund to satisfy any liability of a second employer which may be found.” Mr Kops added, however, that no decision as to the commencement of common law proceedings or to continue with a workers’ compensation proceedings could be made before further information was obtained about the circumstances of the first and second accidents together with further medical evidence as to the plaintiff’s injury and ongoing disabilities.

36 Those enquiries proceeded with reasonable dispatch. On 20 October 1997 Mr Magee wrote a detailed letter to Ms Apiata setting out the details of the further necessary enquiries including the medical reports that had thus far been obtained, that of Dr Bleasel of 15 September 1997, Dr Gertler of 20 September 1997 and Dr Lawson of 8 September 1997.

37 It is clear that Ms Apiata was the prime mode of communicating with the plaintiff, not only because the plaintiff was in New Zealand and Ms Apiata was in Sidney but also because of the difficulties with the communication itself in light (as I think, and discuss later) of the plaintiff’s brain damage.

38 On 28 October 1997 Ms Apiata identified for Mr Magee the names and contact details of witnesses to both accidents and where other relevant records could be obtained. On 25 February 1998 Mr Magee wrote to the plaintiff summing up the matter generally but discussing, in particular, the option of suing at common law. That letter that, in light of the various difficulties (briefly but adequately summarised) in respect to liability and damages; given the plaintiff’s ongoing problems, it was noted that it was the plaintiff’s and also Ms Apiata’s view that it was better to retain his entitlements under workers’ compensation so that he would receive ongoing weekly compensation together with lump sums for permanent impairment and pain and suffering under that scheme. The plaintiff was advised that if he wished to commence common law proceedings, however, this should be done urgently and it would be necessary to explain to the Court why there was a delay and seek leave to commence the proceedings. He was informed that he would be contacted again once the further necessary enquiries had progressed. This letter did not seek any instructions but, rather, confirmed the position that had been indicated following the conference with Mr Kops.

39 Late in 1997 it was thought necessary that the plaintiff’s employer at the time of his second accident should be joined as an additional respondent to the workers’ compensation claim and further investigations both factual and medical needed to be undertaken in respect of the circumstances of both accidents and the potential complicating medical presentation. Accordingly, in late January 1998, on the plaintiff’s application, the Compensation Court ordered the matter to be stood over to the bottom of the pending list. The practical consequence of that order was to defer for a substantial period of time any hearing of the plaintiff’s claim against the first defendant in the Compensation Court.

40 About a month later the matter was taken over within the firm of the plaintiff’s solicitors by Mr Cameron Thompson. He reviewed the file, which he had not seen since about June 2001, for the purpose of making an affidavit in these proceedings. He noted that there was no documentation on the file between the time that the matter was handed over to him on 24 February 1998 and a notice from the Compensation Court of 14 October 1998 advising that the matter would be listed for hearing in approximately twelve weeks time in the absence of any application seeking a variation of the date. Mr Thompson said that he kept a diary during his period of employment with the firm, which he left there when he moved on in 2001. His diary, he thought, might have assisted to explain why no steps were taken on the file during this period. Unfortunately, however, the diary has been lost. There is, accordingly, no explanation for the delay. In my view this delay, though unfortunate, is not significant in determining the issue before me. The file shows, however, that, from October 1998, Mr Thompson took active steps to prepare the matter for hearing in the Compensation Court.

41 On 9 November 1998 the proceedings were listed before a registrar on the respondent’s application. On that date, by consent, the matter was again stood over to the bottom of the pending list. This was done again on 12 February 1999. On each occasion, this was agreed because of the recognised need to join a further respondent in relation to the second accident. The solicitors for the respondent had made various requests for particulars, in respect of which Mr Thompson wrote to the plaintiff and his sister asking that contact be made. On 21 April 1999 Ms Apiata wrote to Mr Harrison to inform him, in respect of the request for particulars, that the plaintiff “at this point would not be able to answer questions confidently and would like any correspondence to be directed to me”. At this time Ms Apiata was in New Zealand.

42 On 30 July 1999 the plaintiff’s solicitors wrote to WorkCover concerning the second accident. WorkCover was informed that inquiries revealed that at the time of the accident the plaintiff was employed by one George Brown who operated under various identities, which were given and that that Mr Brown’s whereabouts were unknown. A letter from GIO Australia confirmed that at the time of the accident Mr Brown, who had previously taken out workers’ compensation insurance with GIO, was as at 19 June 1993, uninsured. A number of documents were enclosed including information about the pending proceedings in the Compensation Court against the first respondent. An unsigned claim form was provided which, amongst other things, described the accident on 3 March 1993 as having occurred when the plaintiff “fell from a roof”.

43 On 29 October 1999 Ms Apiata wrote to Carroll & O’Dea with information about the plaintiff’s work history and noting that all the plaintiff’s employment since 1993 had been with his brothers “as he would not have been able to gain employment by himself because he lacks the mental ability to work [for] long periods and needs to be supervised”. Although there was some delay in the provision of this information, I do not think that delay was unreasonable.

44 In due course, on January 2000, WorkCover denied liability and, under the then existing procedures, an application to the Workers’ Compensation Resolution Service was required to be made before an application was made to the Court joining WorkCover as a respondent. That application was made in June 2000. In the interim the pending proceedings were again stood over to the bottom of the pending list in about April 2000.

45 On 7 August 2000 Mr Harrison wrote to the plaintiff care of Ms Apiata in New Zealand advising that the WorkCover Authority was about to be joined to the proceedings in respect for second injury. The letter contained a reminder “that we are pursuing this action as a workers’ compensation claim rather than a common law negligence claim for the reasons previously discussed with your sister and yourself”. Mr Harrison noted that, “a principal consideration has been the fact that there is no apparent insurance cover for the purpose of a common law claim in respect of the second injury.”

46 Formal notice was served on the respondent’s solicitors in relation to the applicant’s further claim for permanent brain damage under s66 and pain and suffering pursuant to s67 of the Act. Further enquiries proceeded preparing the two matters for hearing. In October 2000 orders were made joining George Brown trading as Brown Demolition and WorkCover as the second and third respondents to the workers’ compensation proceedings. A number of further procedural steps were necessary including attempting to arrange the matter for hearing in New Zealand. A notice of listing was received from the Court on or about 11 January 2001 advising that a hearing date would be set in about twelve weeks time. The respondent applied to vary that order and the matter was listed for mention on 8 February 2001. Outstanding enquiries not having been resolved, the matter was again stood over by consent to the bottom of the pending list.

47 I think I should state at this time that, despite the various adjournments, all of which were by consent of the first respondent, I do not think that the plaintiff’s solicitors acted in a way that should attract criticism. This was not an easy case, communication was difficult, information was not easy to obtain. My conclusion from a consideration of the extensive material tendered is that the plaintiff’s solicitors had acted with reasonable despatch. Indeed, the opposite was not submitted by the defendants.

48 At the hearing before the Registrar in the Compensation Court on 8 February 2001 Mr Thompson indicated that there was some problems with the matter in that two respondents had recently been joined who had not yet appeared and there was, in addition, claim for lump sums pursuant to s66 for brain injury in which a certificate had been issued (I think a conciliation certificate) by consent the matter was stood over to the bottom of the pending list. It is evident that by this date the first defendant was on notice about a possible claim for brain injury.

49 Certain procedural requirements, including a certificate of conciliation, were attended to and the amended application for determination which finally brought all matters together in an appropriate way, was filed some time, I think, in mid-May 2001. It is clear that, at this point, the solicitors were of the view that the plaintiff should not and, I think, would not, commence common law proceedings and it was in his interest to proceed with the weekly payments claim, the claim for lump sums for brain damage and pain and suffering under the Act. It was necessary at this point also to make application to the Court to take evidence on commission in New Zealand but further up to date reports needed to be obtained to enable this to be done.

50 From about 12 July 2001 the file was taken over by Ms Rossana Tagliapietra. The proceedings in the Compensation Court were listed to be heard in Sidney on 12 September 2001 subject, however, to an application by the first respondent on 28 June 2001 for a variation of listing and ancillary orders. That motion was due to be heard on 27 July 2001. Ms Tagliapietra considered that senior counsel should be briefed to advise and, on 13 July 2001 a brief was forwarded to Mr Tony Bartley SC seeking advice, in the first place, as to whether there should be an application to have evidence taken on commission in New Zealand.

The question of common law proceedings arises again

51 On 24 July 2001, in the course of a conference, Mr Bartley raised the issue of bringing common law proceedings. It is clear that Mr Bartley formed a somewhat different view to that which had hitherto been taken of the desirability in the plaintiff’s interests to undertake such proceedings. It was decided that it was best to meet with the plaintiff in person to discuss the matter and, since Mr Bartley was to be in New Zealand in early September 2001, arrangements were made for these discussions to take place when he was there. Mr Bartley advised that some further enquiries should be made to identify the owner and occupiers of the site where the first accident occurred and steps were immediately undertaken to do so. On 27 July 2001 consent orders were made in the workers’ compensation proceedings vacating the hearing date and placing the matter at the bottom of the pending list. The plaintiff was required to provide radiology scans by 17 September 2001.

52 On 10 September 2001 a conference was conducted in Hamilton, New Zealand involving the plaintiff, his sister Ms Apiata, Ms Tagliapietra and Mr Bartley. Ms Apiata advised that the plaintiff’s condition had deteriorated further since 1997 and that he was now incapable of looking after himself and totally incapacitated for work. He had only worked from time to time since returning to New Zealand in 1995, was then on a disability pension and was working in a sheltered workshop run by a local charity group. Advice was given to the plaintiff and Ms Apiata that it may be possible to bring a common law claim even though proceedings had been commenced in the Compensation Court but that leave of the Court would need to be obtained in order to proceed in that way. Also raised was the location of X-rays, CT scans and radiological investigations sought by the respondent in the workers compensation proceedings. It was thought that these might be with the Royal Prince Alfred Hospital and enquiries were duly instituted. During the conference it was also agreed that the plaintiff should be assessed by a Professor De Groot, of Palmerston North Rehabilitation Centre in New Zealand, to determine if possible the extent at that point of his injuries and disabilities. It was thought best to await the outcome of that assessment before advising the plaintiff further concerning the question of commencing common law proceedings.

53 When contact was made with Dr De Groot, he recommended that the plaintiff should be seen by a Dr Anwar in his stead, who was located in Hamilton, close to where the plaintiff resided. This seemed to be a sensible arrangement and it was then undertaken. In early October 2001, it was ascertained by inspection of the file in Marrickville Council concerning the property development at the site of the first accident that it had been purchased by the Department of Housing some time between 1985 and 1987 and that the Department had demolished the building in 1993. Information was then sought by way of subpoena issued to the Department of relevant matters.

Common law proceedings are commenced

54 Amendments to the Act and related legislation came into force on 26 November 2001. Those changes would have had the effect of substantially reducing the plaintiff’s entitlement to common law damages if proceedings were not commenced prior to that date. Accordingly, instructions were sought and obtained to file a notice of motion to extend time together with a statement of claim by the plaintiff through Ms Apiata as his tutor against Josef & Sons Contracting Pty Limited. The notice of motion was filed on 15 November 2001 and it was listed for first return on 23 November 2001. Those proceedings were commenced in the District Court. On that day consent orders were entered to the following effect –

(i) the defendant would not take issue that the statement of claim was filed without leave if it was filed by 9 am on the day the legislation was introduced into Parliament;

(ii) the plaintiff was to obtain leave pursuant to 151D of the Workers Compensation Act, if required, before proceeding with the action; and

(iii) the notice of motion was adjourned to 28 February 2002.

55 The statement of claim was filed in the District Court on 23 November 2001 and the affidavit in support of the notice of motion was filed and served on the defendant on 21 December 2001. Further procedural steps were taken relating to the Compensation Court proceedings. Many documents had been provided by the Department of Housing and required examination. A complication arose because the first defendant was in liquidation and it was necessary to obtain leave to proceed. Dr Anwar’s report was finally received at the end of March 2002, there having been some considerable difficulty in organising the appointment. On 14 May 2002 Mr Bartley advised that the Department of Housing should be joined as second defendant and a week later the solicitors for the first defendant were invited by the plaintiff’s solicitor to cross-claim against the Department of Housing. Some procedural difficulties attended the filing of the amended statement of claim but they were eventually resolved.

56 I should point out at this stage that one of the matters initially agitated before me was whether or not the proceedings in the District Court should be transferred to this Court, even though the question of leave to proceed in light of the expired limitation period was outstanding. After some argument this question was resolved and I made orders transferring the whole of the proceedings into the Supreme Court. Aside from possible issues as to costs, it is thus unnecessary to deal with this problem at the present time.

The issues in the trial and the available witnesses

57 The allegations of negligence and breach of statutory duty made in the amended statement of claim are, in substance, that the plaintiff was standing on a roof at the time of the fall which occasioned his injury and that the first defendant failed to provide him with adequate scaffolding, handholds or a harness.

58 It is obvious that there is a marked discrepancy between the facts asserted and the claim form and the allegations in the statement of claim. It is fair to say that those discrepancies go to the heart of the allegations of breach of duty relied on by the plaintiff and that it is important the defendant be given a fair opportunity to ascertain the factual circumstances. At the same time, how the accident occurred – and there can be no serious doubt that indeed the plaintiff fell whilst working on the demolition of the building on the specified site – was necessarily an issue from the very beginning, when the claim was first notified.

Early investigations

59 As I have already mentioned, the second defendant was the owner and occupier of the relevant property. On 21 January 1993 it entered into a contract with the first defendant for demolition of a factory building located on the land and removal of the debris. The contract has been tendered before me. It is not necessary to deal with it except to note that, unsurprisingly, the first defendant is required to implement all the obligations imposed by the Occupational Health and Safety Act 1983 and otherwise to take all necessary precautions to protect the health and safety of persons on the site when performing the demolition works.

60 Subpoenaed documents reveal that, on 8 March 1993, an internal memorandum of the second defendant reports the occurrence of an accident on the site on 3 March in which an employee (undoubtedly the plaintiff) of the subcontractor, described as Brown Bros Pty Limited (I think, Brown Bros Contractors Pty Limited), “fell approximately ten metres from the top of a scissors lift to the concrete slab” and was taken to hospital. The memorandum also reports interviewing Mr Brown who “said that the injuries were minor and the worker involved would be home the same day”. The memorandum also states –

“The WorkCover Authority inspected the scene of the accident on Wednesday [3 March] and issued an on the spot fine of $500 to Mr Brown for unsafe practices. Following enquiries with the WorkCover Authority on Thursday, I was advised that they had made enquiries as to the injuries to the worker and found that he did in fact have a fractured skull, a collapsed lung as well as bruising.”
…
“Following discussions with Mr Brown and the WorkCover Authority, it would appear that Mr Brown is carrying out all of the works on this site and not Josef & Sons Contractors.”

61 A further internal memorandum of the following day contains advice from the Manager Professional Services, “that Brown Bros is subcontracting part of the total contract which includes demolition…”.

62 Other documents in the hands of the second defendant include reports concerning shortcomings in respect of safety matters and include the following –

“The Superintendent for the contract is advised to take note of the industrial issues developing on this project and be familiar with possible escalation to a dispute which may disadvantage the project and get offside with the building union and authorities.
The responsibility to comply with Regulations and Acts is mainly that of the head contractor but others in control of the project (ie Superintendent) can be held responsible at a diminished level if they fail to take action if considered available to them to avoid and/or rectify breaches.”

(The Superintendent for the demolition works was a Mr Brian Mantin, an employee of the second defendant.)

63 Perhaps provoked by the warning mentioned in this memorandum the documents show a continuing interest by the second defendant in the accident including a recommendation to inspect the site and that the Superintendent should “closely monitor the situation to avoid adverse comments against the Department” might be expected in light of the fact that the WorkCover inspector had recommended that the Authority prosecute the contractor under the Occupational Health and Safety Act, the first time that court action had been recommended against a Department of Housing contractor. It is fair to note, however, that the concern of the second defendant largely related to the potential for industrial disputes rather than an exploration of its own potential liability to the plaintiff.

64 So far as the employment of the plaintiff is concerned, an internal memorandum of 17 May 1993 noted, in apparent contradiction of the earlier information about Brown Bros Pty Limited –

“Josef & Sons have advised the Superintendent (Mgr. Engineering Systems) that all workers on the site are employees of Josef and Sons, with the exception of operators of hired plant such as the mobile crane, and of bricklayers.”

65 It is clear from this that the first defendant accepted that it was the employer of the plaintiff. The memorandum also contains the following –

“Work Cover was asked to meet the Superintendent and the Contractor on site before work commenced and this happened on Wednesday January 27th 1993. At that meeting all aspects of the project were discussed and WorkCover advised their satisfaction with the proposed methods of demolition and the detail of the asbestos removal. The contractor has followed this agreed procedure.”

66 A further memorandum of 30 June 1993 contains the following –

“The accident on March 3rd 1993 occurred despite …[the discussion of January 27] and agreement and I am advised by the Contractor resulted from the individual, to whom the accident occurred, disconnecting himself from the installed harness in the scissors lift and over reaching his balance position. The result of this action was that he overbalanced due to his own actions, not because correct equipment was not available nor because training had been inadequate (it is noted that a harness is not required in a scissors lift”.

67 It seems to follow from this and other material disclosed on subpoena that the second defendant took at least some responsibility for supervision and control of safety aspects of the contractor’s work on the site, comprehending the issues that arose out of the plaintiff’s fall. It was plainly concerned about the circumstances of the accident and, although no mention is made of potential liability, it was aware of workers’ compensation payments being made to the plaintiff and, I would infer, of its own potential liability. It seems reasonable to infer that its anxiety in this respect may have been assuaged in due course by the limited continuing claim made by the plaintiff. Certainly no claim had ever been made against the second defendant until after the commencement of the workers’ compensation proceedings, as I have detailed above.

68 It appears that the second defendant first received notification of the plaintiff’s claim on or about 8 August 2002 when it was served with notice of those proceedings on 8 August 2002. In an affidavit filed on behalf of the second defendant Ms Jenner, its solicitor stated that the second defendant produced some of or all of its files in response to a subpoena issued by the plaintiff in early August 2002. Ms Jenner sought from the plaintiff copies of the documents produced on subpoena but, regrettably, as at 7 April 2005, the date of Ms Jenner’s affidavit they had not been produced. That was corrected shortly after and the documents are attached to an affidavit of Mr Algie, the plaintiff’s solicitor of 7 November 2005. It seems that no complaint is made now about missing records.

69 The second defendant’s Project Manager was a Mr John Gregory. He told Ms Jenner in January 2005 that he could not recall the relevant project at all, let alone any accident that might have occurred at the premises during the demolition works. He said that his only responsibility was contract management and administration. When Ms Jenner spoke to Mr Mantin, as I have earlier mentioned its Superintendent for the works, he said that whilst he could vaguely recall the premises, he could not remember anything about day-to-day events at the site or anything about any accident. However, Mr Mantin did not have available to him at that time the documentation which has since been produced and it is reasonable to assume that reference to it might well assist his recollection. Ms Jenner also contacted Mr Robert Lloyd, the Superintendent’s representative for the works. She spoke to him in early April 2005. Mr Lloyd said that he remembered the project fairly well and recalled hearing about the plaintiff’s accident, which occurred whilst he was on annual leave. He recalled that shortly after the accident, the plaintiff had left Josef and Sons and gone to work for somebody else. He said that there was “never any suggestion to me that he was seriously hurt so I never thought another thing about it”. As I have pointed out, there was a note in the internal memorandum that the injuries to Mr Mabbett were somewhat more serious than had previously been thought. I do not think that anyone could consider a fractured skull as anything but serious.

70 An investigation was undertaken by the insurer of the first defendant. The report of the investigator of 26 March 2002 has been tendered in the proceedings, together with a statement of Mr Robert Josef, the principal of the first defendant. Mr Josef informed the investigator that he was not present at the time of the accident and that a Mr Dave Brown was the plaintiff’s immediate supervisor. He said that Mr Brown had been subcontracted to carry out and supervise the demolition work in which the plaintiff was engaged and that he was a relative of the plaintiff. Indeed, Mr Josef said that Mr Brown was one of the principals of the firm in whose employment the plaintiff was injured on 19 June 1993. Mr Josef thought that Mr Brown had returned to New Zealand and would be reluctant to return to Australia in view of outstanding police and other matters. He also informed the investigator that a scissor lift and safety harnesses were provided to the plaintiff for the purposes of carrying out his work.

71 It was said on behalf of the defendants that, being the only witness to the accident identified by the plaintiff in his claim, Mr Brown is capable of giving important evidence and, if he were unavailable, there would be an actual and substantial prejudice to the defendant. A further point made by Mr Josef was that he understood from other workers that the plaintiff was affected by either drugs or alcohol at the time of the accident. (I interpolate that the medical records of the plaintiff’s admission would tend to refute this suggestion.) It is fair to say that to attempt to identify the names of and locate the workers to whom Mr Josef refers would now be extremely difficult. To these difficulties should be added the problem that obtaining reliable evidence from witnesses concerning the plaintiff’s presentation after his release from hospital following the first accident and whether he was worse following his release from hospital after the second accident.

The ability of the plaintiff to manage his affairs

72 I have already set out a number of medical and lay opinions bearing on this point. Particular reliance in the hearing was placed by the parties on the following material.

73 Ms Apiata swore a number of affidavits in the proceedings, the latest and most comprehensive being sworn on 3 June 2004. I do not propose to set out the substance of that affidavit in detail. Amongst other things, Ms Apiata notes the significant changes observed in her brother both by herself and her siblings after the accident. Those changes involved difficulties with following conversations, inappropriate comments during conversations, unsuccessful attempts to obtain employment and his inability to work with anyone other than family members who could keep an eye on him. He was irritable, depressed and at times suicidal, unable to look after money and taken advantage of by people in this respect. Ms Apiata, who had been living in Australia between 1990 and 1999, returned in 1999 to Ngaruawahia in New Zealand where she has lived with her husband and children ever since. Ms Apiata, when her brother stayed with her family towards the end of 1995, noticed that the withdrawal she had first observed in 1993 was worse as was his inappropriate behaviour. She said that her brother “was simply unable to socialise with others” and in conversation, he could not stay focused on what was being said and would often respond by talking about another topic. She said that he would sometimes take a long time to respond and other people would get frustrated and irritated with him. She said, that he had no common sense. (I think that this is a pointed observation and very relevant to his ability to manage his affairs in the relevant respect). She noted that he did not take the initiative to do simple tasks for himself unless reminded, including day to day matters such as making breakfast or having a shower. He would do it when it was suggested but not otherwise. He lost interest in leisure pursuits. Ms Apiata notes that her brother is on an invalid pension but that he did not budget for items such as weekly groceries or clothes, gives money away to others, I take it for no good reason, and has to be accompanied when shopping because he would otherwise buy items which are inappropriate to his needs.

74 On 22 September 1997 the plaintiff’s solicitors received a report from Dr Robert Gertler, a consultant psychiatrist concerning the plaintiff, whom he had examined on 18 September. The mental status examination revealed the following –

“Mr Mabbett presented as a tall, strongly built young man appearing his stated age with obvious scars on the right side of his forehead. He appeared at times to have difficulty in hearing. There was no evidence of significant depression. He seemed anxious at times and would laugh inappropriately. His affect seemed somewhat fatuous. There was no evidence of psychotic thought disorder, no delusions or hallucinations being present. He was fully oriented for time, place and person. His immediate recall was only fair; his long term memory seemed intact. His capacity for insight and his judgment was difficult to determine. His intellectual level appeared within normal limits.”

75 Dr Gertler’s opinion was that the plaintiff had suffered brain damage primarily as a result of the first accident, when he was noted to have sustained inter cranial damage with persistent structural lesions. Dr Gertler thought the second head injury was much less significant than the first and served only to aggravate the residual effects of the former. He thought that the plaintiff was suffering from a chronic brain syndrome characterised by difficulties in concentration and memory, in particular short-term memory. He noted also that the plaintiff appeared to have become somewhat inappropriate in his affect at times and also frequently irritable with others with some evidence of loss or loss of control. Dr Gertler thought that the plaintiff should not return to his previous work in the demolition industry since he might have problems with his judgment appeared to lack adequate concentration and thus would be accident-prone.

76 When Dr Gertler saw the plaintiff again on 1 June 2004, he was accompanied by Ms Apiata who provided some additional history. Dr Gertler noted that the plaintiff had not lived independently since his last assessment of him but had always been in the home of one of his siblings who “take turns looking after me”. Although he had worked, it was only when his siblings were able to obtain it for him. The plaintiff had started a furniture joinery course, which was to take twelve months but after two years he had still not completed it; he found he was unable to cope because of difficulties with concentration and left the course before completing it. The mental status examination results were virtually the same as had been previously observed. Dr Gertler considered that the plaintiff was still suffering from a chronic organic brain syndrome characterised by difficulty in concentration and short-term memory, as well as inappropriateness of affect and occasional irritability.

77 Neither of these reports adverted expressly to the ability of the plaintiff to manage his own affairs. On 6 July 2004 Dr Gertler reported specifically on this point saying that, in his opinion, the plaintiff was incapable of or substantially impeded in the management of his affairs, both in relation to the current litigation and generally. He said that this opinion was based on the fact that, since his initial assessment of him on 18 September 1997 the plaintiff’s condition had not improved and he had become progressively more dependent upon his immediate and extended families. Dr Gertler considered that, on the balance of probabilities, the plaintiff’s incapacity to manage his affairs arose at the time of the head injury which he sustained in the fall of 3 March 1993. A further supplementary report was made on 9 May 2005. This report reviewed the documentary material, including in particular the affidavits of Ms Apiata, the hospital records and several medical reports. Dr Gertler concluded –

“As a result of the above [material] I maintain that on the balance of probabilities Mr Mabbett’s incapacity to manage his affairs arose at the time of the head injury which he sustained in the fall of 3 March 1993. He has had difficulties in concentration and memory since then and has been unreliable in the management of his financial affairs. He has had to live a supervised life with his siblings who have taken him into his homes.”

78 Dr Gertler also gave evidence before me. He said that, when he first evaluated the plaintiff in September 1997, he did not specifically consider the question whether he was disabled in terms of looking after his affairs. He agreed that he was able to obtain a coherent history from him, although Dr Gertler assumed that the history he gave him was reasonably reliable since, of course, he was not in a position to objectively assess this matter. As was mentioned in the doctor’s report, he was concerned with the somewhat fatuous affect and the anxiety and inappropriate laughter exhibited by the plaintiff. The doctor said that, when he saw him on the second occasion in mid 2004, he thought that the plaintiff was then more vague and perplexed, although this was not so significant as to warrant a note of this development in his report. Dr Gertler conceded, of course, that the last report was not based upon an additional consultation with the plaintiff but arose from his earlier examinations of him. He said, however, that he thought that the report of Dr Shneir (retained by the first defendant) of 12 November 2004 was important since it was an up to date assessment of the state of the plaintiff’s brain from a medical point of view. He thought that Dr Shmeir’s report confirmed his opinion about the plaintiff’s ability to manage his own affairs. So far as the plaintiff’s disability in this respect is concerned, Dr Gertler thought that, in a practical sense, it meant that he required help to the extent that he needed to live with a family member.

79 Dr Gertler was shown the reports of Dr Mellick (to which I will come to in a moment), although Dr Mellick got a somewhat different history in respect of alcohol abuse namely that it occurred pre accident (which Dr Gertler did not obtain) he did not see anything in Dr Mellick’s report that led him to qualify his own opinion that the plaintiff has a substantial impairment in relation to his management of his affairs. Dr Mellick’s description of the plaintiff’s behaviour on examination was also significantly different from that which Dr Gertler described but this may be attributed to a different perspective brought by Dr Gertler, a psychiatrist, and Dr Mellick a neurologist, to the observations. Dr Gertler explained it by suggesting that Dr Mellick’s description was from a “functional point of view” whereas Dr Gertler would look at him “in terms of his behaviour during the interview”. And, of course, the conduct may not have been uniform. Dr Gertler pointed out also that he thought that he also would be, to a greater degree than would be the case with a neurologist, be concerned with matters of mood, temperament and behaviour.

80 Dr Mellick provided the second defendant with a report dated 15 December 2004, having examined the plaintiff, in company with Ms Apiata, on 10 November 2004. He noted that the plaintiff suffered a head injury on 3 March 1993 but had no recollection of the accident which caused that injury. Dr Mellick’s report summarises the hospital records concerning the plaintiff’s admission, in particular a note made in the outpatient’s department when the plaintiff was assessed on 16 March 1993 (“Now well, nil problems”) and the neurological observations then conducted that showed no signs of neurological abnormalities. Dr Mellick noted a broadly similar result on outpatient’s examination on 30 May 1993. The Neuropsychological Unit report of 11 May 1993, noted by Dr Mellick, prepared by a clinical psychologist working in the Neuropsychological Unit of the Department of Neurology at Royal Prince Alfred History concluded that –

“Against a background of impoverished education and premorbid poor verbal skills, this patient presents with deficits which reflect those problems but with no signs of specific impairment related to his recent head injury.”

81 (I interpolate that there was little, if any, information available to the psychologist about the pre-morbid intellectual functioning of the plaintiff apart from what the plaintiff might have told him. This observation, accordingly, needs to be treated with caution.) Dr Mellick noted a history from Ms Apiata that, after the accident, she thought that the plaintiff was “withdrawn” and unable to “stay focused” on a task. She informed Dr Mellick that the plaintiff had continued to live with family members over the past ten years. Dr Mellick took a history (he thought but possibly mistakenly) to the effect that the plaintiff was a heavy drinker before the accident in 1993, which habit had continued. Dr Mellick noted that the plaintiff, “under the circumstances of history taking and physical examination, revealed no abnormalities of mood, temperament or behaviour.” In the course of his summary and opinion, Dr Mellick said that the history “suggests that there were no significant psychological, cognitive or psychiatric abnormalities arising directly as a result of the head injury”. However, the doctor noted the symptoms described by Ms Apiata and to interpersonal difficulties between family members exacerbated by the plaintiff’s heavy drinking. The doctor noted a reported area of brain abnormality in keeping with the long term consequences of the head injury suffered in 1993 in MRI scans performed on 12 November 2004. Dr Mellick commented –

“The absence of evidence of the cerebral lesion [in the plaintiff’s presentation, as I read the report] which may be of traumatic origin is in direct measure an expression of the possible limited consequence of that lesion in relation to the production of behavioural, cognitive or other deficits.
It is likely that, if the lesion is of traumatic origin, it would produce adverse cognitive and behavioural consequences. It is, however, clear that when one considers the total context including the long history of heavy alcohol consumption, the effects of this lesion may be small.”

82 As I understand Dr Mellick’s conclusion, he appeared to accept that the plaintiff was substantially impeded in the management in his affairs but that the medical material he obtained and the clinical assessment which he made did not suggest that the head injury was the cause of this problem. Dr Mellick thought that the history implied that heavy drinking was the potential cause of any such incapacity together with social and educational issues. He noted, however, the MRI investigation and thought that he would not finally commit himself to his viewpoint until he had an opportunity properly to assess the MRI scans. In late January, Dr Mellick took up this point in a further report and noted that the abnormalities shown on the MRI film “should be regarded to be wholly or in part a residuum from the head injury which occurred in March 1993”. He thought that the second serious head injury in June 2003 may well have caused additional brain injury and have resulted in an increment in the MRI abnormality. Dr Mellick also noted a report by Dr Anwar, a rehabilitation specialist, of February 2003 noting “ongoing cognitive, physical and psycho-social deficits”. That report also referred to a variety of symptoms which included “fatigue, short concentration span, impulsivity, lack of self facing and fatigue management, pure communication and social skills”. Dr Anwar described the plaintiff as being “independent in his personal activities of daily living [but] he cannot manage other executive (eg financial, official) activities, for which he needs the ongoing support of his family”. Dr Mellick also commented on Dr Cliff’s and Dr Gertler’s reports. I have already mentioned these. Dr Mellick’s referred to a detailed psychological report by Dr Roldan dated October 1997. It is presently sufficient to note, I think, that the plaintiff showed a slow and impaired mentation on presentation which appeared to be inconsistent with the below average to average nature of his psychometric test scores but that it was possible that the accidents in question “may have led to brain trauma induced changes to personality and/or cognitive function”. As a result Dr Roldan thought that which I might refer to as the plaintiff’s “problems” may have been present pre-accident and that the psychometric test results did not provide evidence of post traumatic deterioration or residual cognitive impairment. Amongst other conclusions, Dr Mellick stated –

“Whilst brain damage is present, it should be regarded therefore to have resulted in no identifiable abnormalities of cognitive function or of other higher intellectual function which can be identified in clinical, neurological, psychological or psychiatric grounds.
The distribution and extent of the brain damage which is clearly demonstrated in the scans would not in my opinion render him incapable of ‘providing instructions to his legal advisers’.”

83 In fairness, I should note, that Dr Mellick was given further information in May 2005 including the affidavit provided for the purpose of this proceeding by Ms Apiata, to which I will come shortly. Dr Mellick qualified a number of his statements in the earlier reports concerning his understanding of the plaintiff’s drinking habits and the nature of the interpersonal conflicts between him and his family. This letter very candidly conceded that there may have been a misunderstanding about the opinion given by Ms Apiata about what might be regarded as “heavy drinking”. Dr Mellick thought that, despite the different picture (as I understand it) presented in the affidavit – which I think Dr Mellick accepted – he did not think that the “basic thrust of the intimation” set out in his report required any significant change. Nor did he think any significant change or modification “is required with regard to the neurological insights incorporated” in the report.

84 The second defendant also tendered the report of Dr Seldon Smith, who examined the plaintiff in the company of Ms Apiata on 12 November 2004. Dr Smith considered (of course, amongst other things) that the plaintiff was capable of providing instructions to his legal advisers from the period 3 March 1993 to the date of his examination. In doing so, however, he made assumptions about the nature of the mode of communication between the plaintiff and his legal advisers which were, I think, mistaken.

85 Before moving to the evidence of the plaintiff and his sister in the proceedings I should mention the evidence of Mr Robert Algie who for a time, including mid 2003, had the carriage of the plaintiff’s matter within the Carroll & O’Dea. In his affidavit of 17 August 2004, Mr Algie referred to attending a conference on 2 June 2004 with Mr Ken Pryde of counsel, the plaintiff and Ms Apiata. He noted that Mr Pryde asked many questions over a period of about two and a half hours. He said that the plaintiff had difficulty answering many of the questions, which often had to be repeated or clarified. He said that the plaintiff’s answers were frequently not responsive. He also displayed unusual reactions during the course of the discussion, on several occasions laughing inappropriately. Mr Algie said that at times the plaintiff had apparently loose recollections of insignificant events, yet at other times appeared to be vague in relation to those events in his life which Mr Algie (I will accept reasonably) considered to be major. He said that it was much more difficult to take a statement from the plaintiff than would normally be expected.

86 The statement is annexed to the affidavit. It is but one and a half pages long and thus relatively brief. I am frankly astonished that it took two and a half hours to obtain. However, when I saw the plaintiff in the witness box giving evidence in the course of these proceedings I saw at once how taking it may well have been a very lengthy process indeed if the plaintiff on that occasion was anything like he appeared to me. I do not propose to analyse his evidence but it seems to me that the overwhelming probability is that the plaintiff as he presented would find it almost impossible to understand the issues in his case, whether of fact or law, sufficient to permit him to appreciate in any sensible way what the proceedings are really about or what the advice he might receive from his lawyers amounted to. It does not at all surprise me that he needs the help of his family to cope with the management of his affairs.

87 Ms Apiata also gave evidence before me. Before moving to a brief description of her evidence I should state that I thought she was a careful and entirely candid and reliable witness. Moreover, she had, by virtue of her experience, significantly better insight into her brother’s problems in coping with his everyday life than would, I think, the average person. Ms Apiata is living in New Zealand. Her occupation was a statutory social worker for the Department of Child, Youth and Family in New Zealand, in which position she had been employed for about eight months. She was earlier employed by Hamilton Victims’ Support. She has worked in the areas of social work, counselling and the like for some fifteen years and has been involved with dealing with people injured by neglect and physical and mental abuse (including alcohol and substance abuse). Ms Apiata agreed that, before she formally became tutor in the case, she assisted her brother by providing information to the solicitors and explaining to her brother the advice that was being given. She recalled the conference with Mr Kops which I have already referred in which there was discussion about whether the plaintiff should pursue his workers’ compensation rights or sue at common law. She agreed that, at the time, it was explained that there were certain risks involved in suing at common law, one of which was that her brother might forego any right to lump sum compensation if he undertook that course. Ms Apiata was asked whether she explained to her brother that it would be a sensible course of action to accept his solicitor’s advice. She said –

“I have attempted to explain it in basic language and communication. Yeah. I don’t know if he’s able to understand it but yes, I have attempted to.
…
Q. So far as you recollect he has never disagreed with you about the advice you have been given by solicitors?
A. No.
Q. Now I would like to suggest to you that, after the meeting with a barrister in September 1997, you and your brother agreed to pursue the workers’ compensation course?
A. Yes.
Q. And at that time you were advised by both the barrister and your solicitors that the time for bringing a common law case had already expired?
A. Yes.
Q. And you were advised that if a common law case were to be pursued that would have to be done as a matter of urgency?
A. Yes.”

88 Ms Apiata said that, although the first time that the possibility of bringing a common law case was discussed after the meeting with the barrister in 1997 was in the middle of 2001, she thought that consideration of whether or not those proceedings should be commenced had never actually stopped and that she thought that the solicitors had continued to do this. However, she did not chase it up, in substance, because she did not know the legal process and “I had to carry on with my own life in the meantime”.

89 Going back to the decision made at the time of the conference with Mr Kops, Ms Apiata said that the decision to proceed with the workers’ compensation claim rather than at common law was her decision based on the information provided at the time. She said that her brother was present but she did not “believe he was able to comprehend the discussion to make the decision”. And so Ms Apiata took the responsibility for the decision, “in regards to advocating on his behalf”, seeing herself as doing the best she could for her brother. She said that her brother was, of course, present during the interview and the lawyers were communicating with him but “I could see and they could see he was not of the state of mind to provide that decision”. Ms Apiata said that from 1993 onwards her brother was exhibiting the sort of difficulties that he presently has, including having trouble looking after his financial wellbeing, having trouble living independently, becoming aggressive from time to time. In short, Ms Apiata was aware from the time of the plaintiff’s accident of very significant changes in her brother’s behaviour. She said that the family attributed these changes to the accident but did not fully understand how it occurred “whether it was mental or whether it was physical, until some years later”. It had a significant impact on her brother’s life and, indeed, over the years has become progressively worse. There was some improvement when the family put into effect some of the recommendations of Dr Anwar but he was still unable to live independently.

The limitation period is suspended

90 So far as the second defendant is concerned, the crucial question is whether or not the plaintiff has been disabled within the meaning of s 52 of the Limitation Act 1969. This is a judgment which, in this case, depends not only upon the medical evidence but also on the evidence of the plaintiff’s legal advisers and, in particular, of Ms Apiata, which I found to be cogent and, indeed, decisive so far as preferring the opinion of Dr Gertler to that of Dr Mellick is concerned.

91 In this case the difficulties under which the plaintiff was evidently labouring whilst conferring with his legal advisers strongly suggest a significant impairment of his understanding. One possible explanation for this, of course, are the normal limitations of mental acuity and the plaintiff’s educational standard. The matters which he was called upon to consider would not be easy for a person who was like the plaintiff but without any impairment of his or her mental condition. However, experienced lawyers frequently need to deal with uneducated clients of low average intelligence and education and are, with care, capable of conveying to those persons a sufficient understanding of the matter in hand to enable there to be a fair degree of confidence that the client understands what is being done and is able to give sensible instructions.

92 In respect of the differing medical opinions, I prefer the evidence of Dr Gertler, who struck me as careful and moderate. He had the benefit of two examinations of the plaintiff. Furthermore, his opinion is very substantially supported by the evidence of Ms Apiata not only in respect of the limited ability of the plaintiff to cope with the ordinary affairs of his life, things which it is apparent he was able to undertake before his accident, but also so far as his limited understanding of the advice of his lawyers is concerned.

93 In Kotulski v Attard [1981] 1 NSWLR 115 Slattery J said at 122 –

“I am of the opinion that it is a relevant matter, in the consideration of the question raised by notice of motion, to have regard how a reasonable person without any impairment would conduct himself in the management of his affairs. A reasonable person without impairment would be able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice and to give instruction about any action.”

94 I do not doubt that the plaintiff has little or, more likely, no understanding of the distinction between workers’ compensation proceedings, on the one hand and common law proceedings on the other nor do I think he understands the significance of taking common law proceedings in respect of the curtailment of his workers’ compensation rights. I think he understands in a general way that legal action is undertaken in the hope that the Court will order that he be given some money. I do not think that he understands the way in which those damages are calculated or the difference between the damages at common law and what he can get in a workers’ compensation action. Indeed, I have some real doubts whether the plaintiff understands the extent of his disability and the way in which he might be compensated for his loss of capacity, let alone the incidents of general damages. Accordingly, his agreement with the course of proceedings is simply that he trusts his solicitors and more importantly his sister to do what is best for him. Many persons who are relevantly disabled do the same. The mere fact that this happens to be the sensible course is not, to my mind, material to the question whether there is a relevant disability.

95 It is sufficient for me to say that I am satisfied on the balance of probabilities that the plaintiff has been relevantly disabled, certainly since some time before the expiration of the limitation period attached to the first accident. I think it likely, as it happens, that he has been relevantly disabled since the date of his accident but it is not necessary for me so to find. Overall, I am also satisfied that the disability in respect of the cause of action was continuous although, of course, it is possible that from time to time he was able to understand sufficient to give some instructions about his case. Accordingly, the limitation period has not expired in respect of his action against the second defendant.

The available evidence and the question of prejudice

96 A great deal of more or less contemporary material is available to the parties, some of which I have already mentioned. As is clear from what has already been said, the WorkCover Authority conducted its own investigation of the accident in April 1993. The inspector interviewed Mr Robert Josef at the premises of the WorkCover Authority on, I think, 15 April 1993 although the typescript of the record of interview appears to have been made on 16 June 1993 (wrongly stated to be 16 June 1992 but nothing turns on this). Mr Josef confirmed that Josef & Sons Contracting Pty Limited, namely the first defendant, employed the plaintiff for demolition work on 3 March 1993. He also asserted that he was aware that the plaintiff “whilst working from the scissor lift fell approximately four metres sustaining multiple injuries which included a fractured skull, concussion, a collapsed lung and lacerations”. Mr Josef told the inspector that standard demolition procedure was followed in relation to the scissor lift. He asserted that the lift was supplied with “harness, lanyards, all the gear was there”. He was informed that there was an apparent breach of the Occupational Health & Safety Act, with which Mr Josef disagreed. In a note dated 21 April 1993 Mr Tyler referred to a brief conversation with Mr Dave Brown who stated that the plaintiff had “only suffered very minor injuries and had of his own volition contributed to his accident”. Mr Brown was identified as the site foreman. The inspector’s view was that the company failed to provide suitable supervision and instruction and the manager of the east region, Mr P McLaughlin, recommended a prosecution.

97 (It is difficult to accept that, indeed, the first defendant was other than the plaintiff’s employer. Mr Josef would scarcely have lied to the WorkCover Authority Inspector about this. But this is not a matter that I need to resolve.)

98 Thus, the circumstances of the accident and identification of the responsible employer or employers were, as one would expect, the subject of early, virtually contemporaneous, enquiry. So much appears both from the report of the inspector and from the file material held by the second defendant.

99 The limitation period expired on 2 March 1996. The application for determination claiming weekly, medical and lump sum compensation was filed and served respectively on 19 and 22 March 1997. This was one year after the expiration of the limitation period. I note, however, that the insurer was put on notice that the plaintiff was considering further action since, as I have already pointed out, on 17 October 1995 his solicitors had written to the insurer advising them of their retainer and seeking information. The affidavit of Mr Truda discloses that the insurer arranged a medical examination on 27 November 1996, which the plaintiff was unable to attend. The only possible relevance of such an examination was in preparation for an anticipated claim for either workers’ compensation or common law damages.

100 When the application was filed in the Compensation Court, of course, that also made it essential to enquire as to the identity of the employer at the relevant time. Yet it was not until 23 March 2002 that a statement was obtained from Mr Josef, the principal of the first defendant. Mr Josef’s statement asserts that “the files in regard to the claim made by Sidney Mabbett are presently in the custody of Jeffrey Turner, who was a chartered accountant”. There is no suggestion in the evidence of the first defendant that those files are unavailable or that they do not contain relevant information. The investigator retained by the first defendant’s insurer contacted Mr Turner to gain access to the documents but this enquiry was deflected by Mr Turner’s informing the investigator that all he was required to do was provide information when served with a subpoena. I do not know whether a subpoena has been served but I would not be prepared to infer that the documents are not presently available.

101 It is clear that Mr Josef, at the time of his statement, recalled the plaintiff and the employment arrangements which he said were in place. He said that he was not on the site at the time of the injury but was told that the plaintiff was working on a scissor lift, undid the safety harness that he was required to wear when attempting to reach out for something and then fell about four to six metres to the ground below. He recalls talking to the plaintiff when given the plaintiff’s letter of resignation and that the plaintiff told him “he was in tip top shape and that he was pleased to return to work”.

102 When this application came on first before me in November 2005 the question of the whereabouts of the identified eyewitness, Dave Brown, arose and it seemed clear that there were available fairly simple lines of enquiry that could have been followed by the first defendant to locate him. As it happened, when proceedings were completed on the second day of hearing this matter was outstanding. Before delivery of judgment, the matter was mentioned shortly before the commencement of vacation on 15 December 2005 by consent at the instigation of the first defendant. It was indicated that further investigations had uncovered material which was likely to provoke an application to reopen the hearing. Delivery of judgment was necessarily delayed until this matter could be clarified. The matter was stood over to 31 January 2006 for directions.

103 On 1 February 2006 Mr Wardell of counsel for the first defendant said that there was no doubt that the first defendant would seek leave to reopen but had not yet received final instructions on the issue of separate representation of the insured since the insurer’s case might be inconsistent with that of the first defendant. This is complicated by the fact that Mr Wardell informed me that the employer (I think through Mr Josef) had informed the insurer that it employed the plaintiff. This was contradicted by the statement to which I have already referred about employment by Brown Bros Contractors Pty Limited. Additional material provided to the insurer after the evidence had closed also indicated that the first defendant might not be the employer. Mr Wardell sought an adjournment to enable his client’s position to be clarified. The matter was then adjourned to 10 March 2006 for further directions.

104 In the result, the matter came on for hearing date on 15 June 2006. In the course of that hearing Mr Wardell for the first defendant conceded that, in light of the information now to hand, the first defendant could no longer submit that Mr Dave Brown was not able to be located and did not press the submission based upon actual as distinct from presumed prejudice, arising from the effluxion of time affecting memory and reliability.

The legal issues

105 Section 52 of the Act is virtually identical to s52(4) of the Motor Accidents Act 1988, which was considered in Salido v Nominal Defendant (1993) 32 NSWLR 524. Gleeson CJ said (at 532) –

“… It is true that the exercise of the discretion to be approached on the basis that the onus is on the applicant to show why it is fair and just that in his or her case there should be a dispensation from a general rule established by the statute. Nevertheless, the statute recognises that there may be cases where it is fair and just to grant such a dispensation, and the applicant should not be required to bear some additional forensic burden of indeterminate nature and unquantified weight [such as requiring the circumstances to be extraordinary or special].
…[It] is not possible by judicial decision to establish in advance categories of case in which it would be fair and just to grant leave to commence proceedings out of time under s52(4). However, the following guidelines may be of assistance in obtaining consistency of decision-making:
1. S52(4) confers a discretion which is to be exercised judicially, in a manner that furthers the purpose of the statutory context in which it appears. The immediate purpose, as with any limitation period, is to protect defendants against the injustice of stale claims; the statute is also aimed at promoting forensic diligence.
2. Bearing in mind those statutory purposes, the question is whether, in the circumstances of each individual case, the applicant for leave has demonstrated that it is fair and just that leave should be granted.
3. The diligence, or lack of diligence, shown by a plaintiff or a plaintiff’s representatives, in ascertaining and asserting his or her rights or ordinarily be a material factor, as will the extent of the relevant delay, and the reason for it.
4. The nature and extent of any forensic disadvantage to a defendant resulting from a plaintiff’s delay will also be material. The effect, if any, of the delay upon the defendant’s ability to defend an action is a matter to be taken into account, and may in some cases be of decisive importance.
5. Leave under s52(4) may be refused if it will be plainly futile to grant it and in that connection an applicant’s willingness and ability to give a full and satisfactory explanation of any delays in reporting to police, notifying claims and commencing proceedings will be material.”

106 In Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207, the Court of Appeal held that, in exercising the broad discretion conferred by s151D(2) of the Act to grant leave to sue after expiry of the limitation period, the general question to be asked is what is fair and just, or what does the justice of the case require: ibid at 209, 224. The crucial question in Itek was whether, where the plaintiff’s delay in bringing her action for damages caused the defendant no prejudice whatever, whether the respondent’s failure to act diligently in the prosecution of her claim by deliberately allowing the limitation period to expire and delay applying for leave to commence proceedings for nearly two years precluded the grant of leave.

107 There is a marked distinction between the circumstances in Itek and the circumstances here. In particular, the decision in the former case not to proceed with the common law claim but rather, to make a claim for workers’ compensation was, though in accordance with legal advice, “a fully informed decision”: Itek per Ipp A-JA at 228. It was evident from the evidence given by the plaintiff in the proceedings that she had a full, though lay, understanding of her rights both at common law and under the Workers Compensation Act and the competing considerations relating to her election to bring proceedings of the latter kind. In this case, for the reasons that I have given, I am quite satisfied that the plaintiff did not understand the nature of his rights, the import of the advice that he was given or, for that matter, the significance of the decision that was made not to pursue his common law rights.

108 Itek, however, is important also because of the majority view (Spigelman CJ agreeing with Ipp A-JA) as to the general principles applying to the exercise of the discretion conferred by s151D(3). Ipp A-JA stated the relevant questions as follows (54 NSWLR at 224) –

“[87] In my opinion, in limitation legislation such as s151D(2) of the Workers Compensation Act , where a broad discretion is conferred to grant leave to sue after expiry of the limitation period, the general question that has to be asked is what is fair and just (per Gleeson CJ in Salido ). Or what does the justice of the case require (per McHugh J in South Brisbane Regional Health Authority [v Taylor (1996) 186 CLR 541]). In answering such a question the justice of the case must be evaluated by reference to the rationales of the limitation period that has barred the action, including the four rationales to which McHugh J refers.”

109 Those rationales were as follows (186 CLR at 552) –

(a) as time goes by relevant evidence is likely to be lost;
(b) it is oppressive to a defendant to allow an action to be brought long after the circumstances that gave rise to it have passed;
(c) it is desirable for people in the community to be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Many in the community have a significant interest in knowing that they have no liabilities beyond a definite period;

110 (d) the public interest requires that disputes be settled as quickly as possible.”

Discussion

111 In all the circumstances I do not think that any actual prejudice has been demonstrated by the first defendant or, should it be relevant, by the second defendant. Of course, the plaintiff bears the onus of establishing that no such prejudice exists. In my view, the plaintiff has satisfied his onus in this respect.

112 I note that Mr Moanaroa said in his statement of 6 May 2002 that although he had a clear recollection in relation to the plaintiff and Kelvin that they were not wearing full harnesses he was not himself sure whether he was or was not. However, Mr Moanaroa had made a statement in February 1996 stating in an unqualified way that none of the three workers had safety belts or safety harnesses so, although this later failure of recollection signals the ordinary expected effect on memory of delay, this is not of particular concern in relation to his evidence.

113 It may readily be accepted that a trial at the present time suffers from the risk that memories have been adversely affected by the effluxion of time. However, I consider that the statements that were obtained from the eye witnesses and others involved at the time, both more or less contemporaneously and later are sufficiently clear to permit a fair assessment of the cogency and probative worth of their evidence and a fair trial of the issues in the case.

114 To my mind, the issue of employment is also sufficiently clear, even at this point in time, to enable a just and fair determination of this issue to be made in the proceedings.

115 Mr Wardell, on behalf of the first defendant, also presses as a point of irredeemable prejudice the contention that the first defendant is unable to maintain a cross-claim against the possible alternative employer, Brown Brothers Contractors Pty Limited, citing Creevey v Barrois [2005] NSWCA 264.

116 The problem arises by virtue of the interaction between the limitation period provided by s151D of the Act and that provided by s25(1) of the Limitation Act applying to actions for contribution under the Law Reform (Miscellaneous Provisions) Act 1946 s 26 of which provides –

“26 Contribution between tort-feasors
(1) An action on a cause of action for contribution under subsection (1) of section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 is not maintainable if brought after the first to expire of:
(a) a limitation period of two years running from the date on which the cause of action for contribution first accrues to the plaintiff or to a person through whom the plaintiff claims, and
(b) a limitation period of four years running from the date of the expiration of the limitation period for the principal cause of action.
(2) For the purposes of paragraph (a) of subsection (1), the date on which a cause of action for contribution first accrues is:
(a) if the plaintiff in the action for contribution…is liable in respect of the damage for which contribution is claimed by judgment in a civil action…- the date on which the judgment is given … .
(3) In paragraph (b) of subsection (1), the expression the limitation period for the principal cause of action means the limitation period fixed by or under this Act or by or under any other enactment…for the cause of action for the liability in respect of which contribution is sought.”

117 Basten JA made the following observation about the interaction of these provisions –

“The combination of a flexible rule with respect to the commencement of primary proceedings by an injured party, together with an inflexible limitation period on claims for contribution by a putative defendant, clearly has potential to cause results which may be arbitrary and unjust. For example, a claimant with an excellent case for leave to commence proceedings out of time may be met with a complaint by the principal tortfeasor that the delay in commencing proceedings has caused prejudice to it because it is no longer able to bring proceedings for contribution. Such a situation could, in theory, arise even where the claimant had sought leave months, or even a year or two, prior to the expiration of the contribution claim limitation period, where an adverse decision of the primary judge was overturned after consecutive appeals to this Court and the High Court, followed by a rehearing in the District Court.”

118 His Honour noted four possible arguments that might be raised to resist the conclusion and was attracted to the argument that the grant of leave under s52(4) of the Motor Accidents Act (in similar terms to s151D of the Act, as I have pointed out) rendered the limitation inoperative in the sense that “once leave has been granted, there is no longer any limitation period ‘for the principal cause of action’, at least in relation to the cause of action the subject matter of the proceedings”. His Honour noted that such a construction “is at least consistent with the definition in sub-section 26(3) which refers to a limitation period ‘for the cause of action for the liability in respect of which contribution is sought’”. The result would be that the period specified in para 26(1)(a) of two years from, in the usual case, the date on which judgment is given in the principal action, would be the limitation period relating to the contribution proceedings. Despite the attractiveness of this construction in avoiding the arbitrary result to which his Honour, his Honour thought that because it was inconsistent with that assumed in other cases and it was not argued in the present proceedings, “its correctness must be left for another day”. Accordingly, Basten JA proceeded on the basis that the provision did apply to limit the limitation period for commencing contribution proceedings in the arbitrary way which, as it seems to me with respect, his Honour rightly deprecated.

119 Handley JA, concurred in the orders proposed by Basten JA, but concluded that an order under s52(4) of the Motor Accidents Act which dis-applies the limitation period does not “fix” a longer limitation period under the Act, and a longer period is never “fixed…under…that Act, with the consequence of the solution preferred by Basten JA was not available. McColl JA declined to express a view about the effect of a grant of leave under s52(4) of the Motor Accidents Act 1988.

120 In the result, the Court applied Tekno Ceramics Pty Limited v Milat [2003] NSWCA 254 which held that, although the loss of a right to cross-claim against a joint tort feasor might give rise to significant prejudice sufficient to render it unjust to allow a claimant to proceed out of time, this would only occur “where the possible claim for contribution has been shown to be viable and realistic, rather than a fanciful or theoretical possibility”: [2005] NSWCA 264 at [56]. As Basten JA observed (ibid [65]) the claimant must establish that the delay did not make it likely that proceedings could be rendered unfair or cause real prejudice to the defendant. However, his Honour observed, “The issue for present purposes is not concerned with the immediate effects of delay, whether in terms of presumed or actual prejudice in relation to the conduct of the trial, but such effects as may flow from the inability of the proposed defendant to bring a cross-claim …”.

121 I would be prepared to infer, for the purposes of this case, that no proceedings were taken against Brown Bros Contractors Pty Limited because it was uninsured and without assets. But, this being so, not only would it be pointless for the plaintiff to proceed against the company but also, obviously, pointless for the first defendant to proceed against the company. The company search showed that between 31 March 1994 and 10 September 1998 the company was externally administered, from 11 September 1998 to 9 August 2001 it was not active, from 20 August 2001 to 3 November 2002 strike off action was in process and it was ultimately deregistered on 4 November 2001. There are a number of possible reasons why the company might be externally administered but, overall, the only reasonable inference is that it was in severe financial straits. Its lack of insurance emphasises this situation. I think that the prospects of either the first or the second defendant actually wanting to bring a cross-claim against Brown Bros Contractors Pty Limited was remote, quite apart from the unlikelihood that any judgment would be worth anything.

122 I should note, in respect of the second defendant, the effect of the plaintiff’s disability is that the running of the limitation period is suspended so that the problem identified in Creevey v Barrois [2005] NSWCA 264 does not apply to it at all events.

123 It is in the circumstances not necessary for me to consider the question whether the plaintiff should be required to make the concession about the extent of any damages that it might receive from the first defendant as a condition of a grant of leave.

124 I have given careful consideration to the matters referred to in South Brisbane Regional Health Authority v Taylor (1996) 186 CLR 541, as set out in para [109] above. In my view, taking into account the extent of the delay after expiry of the limitation period, the knowledge of the first defendant of the risk from an early stage and the circumstances in which the first defendant came to think that there was limited risk of action and the nature of the plaintiff’s injury, it is nevertheless just and reasonable that leave should be given to the plaintiff to undertake his action.

Conclusion

125 I am satisfied therefore that leave should be granted to the plaintiff to proceed on his statement of claim against the first defendant and, in respect of the second defendant, I hold that the limitation period has not expired in respect of the commencement of the action against it.

126 I give the parties liberty to apply in relation to the question of costs.

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