Mackenzie v Positive Concepts Pty Ltd
[2016] VSC 259
•19 May 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURIES LIST
S CI 2015 02359
| IAN MACKENZIE | Plaintiff |
| v | |
| POSITIVE CONCEPTS PTY LTD | First Defendant |
| and | |
| AREAS OF HOSPITALITY PTY LTD | Second Defendant |
---
JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 May 2016 |
DATE OF JUDGMENT: | 19 May 2016 |
CASE MAY BE CITED AS: | Mackenzie v Positive Concepts Pty Ltd & Anor |
MEDIUM NEUTRAL CITATION: | [2016] VSC 259 |
---
PRACTICE AND PROCEDURE – Application for an extension of time to bring an action for negligence and breach of statutory duty – Plaintiff suffered serious injuries following an assault – Whether just and reasonable to extend time – Failure of previous solicitors to advise in respect of time limits and potential common law rights – Credible and reasonable explanation for delay on part of plaintiff – Defendants unlikely to suffer material prejudice in all the circumstances – Relevance of potential claim against previous solicitors – Limitation of Actions Act 1958 ss 5(1)(a), 23A - Tsiadis v Patterson (2001) 4 VR 114 and Davies v Nilsen [2015] VSC 584 relied upon – Application granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC and Ms J Frederico | Maurice Blackburn |
| For the First Defendant | Mr S Smith | IDP Lawyers |
| For the Second Defendant | Mr D McWilliams | HWL Ebsworth Lawyers |
HIS HONOUR:
Introduction
The plaintiff was the victim of an assault which occurred on 6 October 2002.
At the time of the assault the plaintiff was working as a security officer at the Castello Berwick Springs Hotel (‘the Hotel’). He was employed by the first defendant. The Hotel was operated by the second defendant.
On 12 May 2015, the writ in this proceeding was issued for the plaintiff. By the statement of claim it is alleged that there was negligence and breach of statutory duty by each defendant which was a cause of the assault and the plaintiff’s injuries.
The defence of the first defendant was filed on 7 July 2015. The defence of the second defendant was filed on 6 October 2015. Each defendant pleads that the plaintiff’s cause of action against it has expired by reason of the provisions of s 5(1) of the Limitation of Actions Act 1958 (‘the LAA’).
The plaintiff agrees that the limitation period has expired. Relying on s 23A of the LAA, the plaintiff has applied by summons dated 22 March 2016 for an order that the time to bring this proceeding against each defendant be extended to 12 May 2015.
Applicable principles
Pursuant to s 5(1)(a) of the LAA, the plaintiff had six years from the date of the assault, being 6 October 2002, within which to commence proceedings. Section 134ABA of the Accident Compensation Act 1985 (‘the ACA’) operates to extend the limitation period. For the plaintiff, it was argued that the limitation period finally expired on 26 December 2010. The second defendant argued that the period expired on 28 May 2010. Nothing turns on the outcome of this debate. There is no doubt that the limitation period has long since expired and that, absent an extension of the period within which to issue proceedings, the plaintiff’s claim against each defendant is statute barred.
Pursuant to s 23A(2) of the LAA the time within which the proceeding may be brought may, subject to sub‑s (3), be extended if it is just and reasonable so to do. Subsection (3) provides:
In exercising the powers conferred on it by subsection (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following—
(a) the length of and reasons for the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c)the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
(e)the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
The task for the court on such an application was authoritatively described in Tsiadis v Patterson[1] by Buchanan JA, with whom Ormiston and Calloway JJA agreed, as follows:
… the court must synthesise a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the respondent bears the onus of persuading the court that it is just and reasonable to extend the limitation period. I agree with Brooking J in Bell v SPC Ltd[2] when he said:
The question posed by section 23A is whether, having regard to all the circumstances of the case, including the circumstances mentioned in paras (a) to (f) of subs 3, it is just and reasonable to extend the period. This requires consideration of the conduct and position of both parties, including the effect of the outcome of the application on each of them. … It is for the plaintiff to satisfy the court that it is just and reasonable to extend the period.
[1](2001) 4 VR 114, 123-4 [33] (‘Tsiadis’).
[2][1988] VR 123, 125–6.
A useful summary of the principles applicable to an application for extension of time such as this are set out in Davies v Nilsen in the judgment of J Forrest J.[3] I adopt that summary of principles.
[3][2015] VSC 584, [43]–[44].
Background and evidence
Evidence on the application consisted of the following:
(a) Affidavit of the plaintiff, sworn 21 March 2016;
(b) Affidavit of Emily Jane Anderson, sworn 21 March 2016;
(c) Affidavit of Aleksandar Calic, sworn 9 May 2016;
(d) Letter Hymans Solicitors to Maurice Blackburn Lawyers, dated 26 June 2013; and
(e) The viva voce evidence of the plaintiff given on 9 May 2016.
The plaintiff was born on 31 August 1969 and is now 46 years of age. He commenced employment with the first defendant in about July 2001. He was employed as a security guard, working at the hotel operated by the second defendant.
The assault occurred at the Hotel on 6 October 2002. The plaintiff went to the aid of another security guard, who had been attacked after ejecting an intoxicated patron. The plaintiff was then set upon by a large group of men, who repeatedly punched, kicked, elbowed, kneed and choked him. He was in fear of his life. Eventually he was able to escape and hide.
As a consequence of the assault, the plaintiff suffered various physical and psychological injuries, including post‑traumatic stress disorder. It appears from the medical reports which have been placed in evidence on this application that the psychological injury was by far the most serious and that the plaintiff has continued to suffer quite severe psychological ill health since 2002 as a consequence of the assault.
The plaintiff made a claim for compensation pursuant to the provisions of the ACA. That claim was accepted by insurer Cambridge Integrated Services (‘Cambridge’) and benefits were paid, including weekly payments of compensation for a period of 104 weeks and medical expenses.
The assault was investigated by police. Cambridge commissioned an investigation report from Cygnus Higgins Shaw (‘Cygnus’). Cygnus prepared a report dated 20 February 2003, to which was attached draft statements by witnesses, including Michael King, a director of the first defendant, Ben Grange and Michael Barbari, both crowd controllers employed by the first defendant, and the plaintiff.
The plaintiff instructed Hymans Solicitors (‘Hymans’) to act on his behalf in relation to WorkCover matters and a victims of crime application. The plaintiff first attended Hymans on 22 July 2003.
It appears that Hymans acted for the plaintiff from July 2003 through to about early 2005. Those solicitors took a number of steps for the plaintiff, including providing him with a victims of crime assistance tribunal claim form, and lodging a claim pursuant to s 98C of the ACA.
By letter dated 9 February 2005, addressed to him care of Hymans, Cambridge communicated a determination of the plaintiff’s s 98C impairment claim. The plaintiff’s whole person impairment was determined at five per cent (variable) for physical injury and 20 per cent for psychiatric injury. As a consequence, the plaintiff had no entitlement to impairment compensation.
In cross‑examination the plaintiff was taken to his claim for impairment benefits, the letter from Cambridge to him care of Hymans dated 9 February 2005, and the worker’s response form signed by him and dated 28 February 2005. The plaintiff said he completed the impairment claim form and that he signed the response form. He said he believed the response form had been sent out to him. The plaintiff was asked on a number of occasions whether he had received, read and understood the letter from Cambridge dated 9 February 2005. In particular, the plaintiff’s attention was drawn to the fifth page of that letter and the paragraphs beneath the heading ‘Common Law Proceedings’.
The plaintiff said that he had not been provided with any advice by Hymans at any time. He confirmed that he now understood some aspects of the paragraphs of the Cambridge letter below the heading ‘Common Law Proceedings’, but only because he had received explanation of those matters on a number of occasions by his current solicitors and counsel. The plaintiff could not now recall whether or not he had received the Cambridge letter of 9 February 2005. He said that he had retained all of the letters he received from Hymans and that he provided those letters to Maurice Blackburn in 2013.
Counsel for the first defendant made a call for the correspondence from Hymans to the plaintiff. A bundle of correspondence was provided to the defendants by the plaintiff’s lawyers in response to that call. An admission was made for the plaintiff that the last piece of correspondence from Hymans to the plaintiff in that bundle was dated 23 December 2004.
Counsel for the plaintiff subsequently tendered a letter from Hymans dated 26 June 2013, confirming that those solicitors did not have the plaintiff’s ‘file or correspondence in our office.’
The plaintiff’s weekly payments of compensation and medical expenses were terminated after 104 weeks. The plaintiff received a letter from Hymans stating he was to attend a conciliation meeting with the WorkCover body. He understood the point of the conciliation was to possibly extend his payments. Hymans did not attend the conciliation with him.
In his affidavit, the plaintiff stated, speaking of a time around early 2005:
In any case, my belief at that time was that I had exhausted my legal rights with respect to my injuries and had no further avenues to pursue. I do not recall receiving any further advice that I could take further legal action with respect to my assault.
In viva voce evidence the plaintiff stated that he had placed reliance on Hymans, that he himself had no idea of what his rights were unless they were explained to him, and that at no stage had Hymans given him any advice as to what his future rights were.
The plaintiff confirmed in viva voce evidence that he had thought that he had exhausted all of his rights. However, at some time in 2012 his flatmate, having suffered a shoulder injury, received a small payout with the assistance of Maurice Blackburn Lawyers. His flatmate gave the plaintiff a business card and suggested that the plaintiff ‘give them a call and see where you stand’.
Since February 2013 the plaintiff has instructed Maurice Blackburn to pursue his entitlements. In her affidavit, Ms Anderson deposes to the sequence of events from February 2013 leading to the issue of the writ in this proceeding on behalf of the plaintiff on 12 May 2015.
The plaintiff gave evidence that, as a consequence of the injuries he sustained, he has since the assault suffered ‘poor memory, limited concentration and difficulty taking in information’. The plaintiff stated on a number of occasions during viva voce evidence that he relied upon documents, in particular the correspondence from Hymans, to assist with his memory.
The first medico‑legal report commissioned by Cambridge is a report of psychiatrist Dr George Wahr dated 26 November 2002. Dr Wahr diagnosed the plaintiff as suffering a post‑traumatic stress disorder which resulted in incapacity for employment.
In addition to the report of Dr Wahr, there are exhibited to Mr Calic’s affidavit the following medico‑legal reports:
(a) Reports of Dr Botvinik, psychiatrist, dated 10 February 2003, 19 November 2003, 2 August 2004 and 11 September 2004;
(b) Reports of Mr Nye, neurosurgeon, dated 17 November 2003, 24 March 2004 and 13 September 2004;
(c) Report of Dr John Honey, psychiatrist, dated 27 January 2005; and
(d) Report of Dr Michael Duke, psychiatrist, dated 26 November 2014.
In his first and third reports, Dr Botvinik diagnosed the plaintiff as was suffering from a post‑traumatic stress disorder which incapacitated him for work as a security guard. Somewhat oddly, Dr Botvinik was more optimistic in his second report. The fourth of Dr Botvinik’s reports was simply a comment on a number of job options.
Mr Nye expressed the view that by September 2004 the plaintiff had recovered from the consequences of the head injury and the aggravation of pre‑existing mild degeneration in the cervical spine caused by the assault.
In his January 2005 report, Dr Honey diagnosed the plaintiff as suffering a post‑traumatic stress disorder, together with an adjustment disorder with depressed mood. He reported on limitations in the plaintiff’s ability to participate in ordinary activities of everyday life as a consequence of that injury. He considered that further psychological treatment and review by a treating psychiatrist was warranted. In his November 2014 report Dr Duke diagnosed the plaintiff as suffering a post-traumatic stress disorder and major depression. Dr Duke stated:
[The plaintiff] is unlikely to ever recover seeing he has had symptoms for the last 12 years and treatment needs will be ongoing.
I consider that [the plaintiff] has no capacity for any form of employment.
I consider that [the plaintiff] is seriously impaired because of his psychiatric conditions which are directly due to his employment.
In his affidavit, the plaintiff stated that since the assault he has been psychiatrically unwell. The plaintiff has required ongoing significant medication and treatment by his general practitioner, psychiatrist and psychologist. He has made five attempts on his life. He often spends 14 to 18 hours a day in bed. He feels anxious around people and, at times, tries to avoid people, and has become reclusive and isolated.
In about 2006 the plaintiff returned to part-time work, working two six‑hour shifts per week for approximately the next two years. In cross-examination by counsel for the first defendant, the plaintiff confirmed that in this period he had improved a little. He was taking medication, and as a consequence was able to work those hours for that period. He had remained very unwell throughout the period and spent a great deal of the time whilst not at work in bed.
Analysis
Counsel for the first defendant argued the following points. First, that what was being sought by the plaintiff was an indulgence, and that accordingly the plaintiff bore a positive burden of demonstrating that justice required that the extension be granted.
Second, that an applicant for leave must give a satisfactory or reasonable explanation for delay. Granting leave to an applicant who had ‘been careless of their rights and careless of the need to proceed with their disputes within the limitation period, would, ordinarily, be contrary to the justice of the case …’.[4]
[4]Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 57, 90 [225].
Third, that in this case, the above point required the plaintiff to establish that he had no awareness of his entitlements to sue. The evidence did not enable that conclusion to be drawn. Given the poor state of the plaintiff’s memory and concentration, and the lack of the Hymans file, it was not possible to find that the plaintiff did not receive common law advice from Hymans.
Fourth, that the plaintiff was careless of his rights. By early 2005 he had lost faith in Hymans. There was uncertainty at that stage as to his entitlements. He may have received the Cambridge letter of February 2005, which should have excited his interest as to common law. There was some improvement in his psychological functioning between 2006 and 2008, such that he was able to work part‑time. There were many other solicitors for him to choose, yet he did nothing. The failure of the plaintiff to take any action to pursue his rights between 2005 and 2013 was unsatisfactory. In the circumstances, the leave sought should not be granted.
Fifth, that while there was no specific prejudice alleged, the general prejudice from the delay of 14 years was such that even if the court was satisfied that the plaintiff had provided a satisfactory explanation for the delay, leave should not be granted.
Counsel for the second defendant echoed arguments put for the first defendant, and added two further points.
First, that the second defendant was in a different position to the first defendant in regard to prejudice, because the second defendant had first learnt of this claim when the writ was issued, and therefore did not have the opportunity to investigate the circumstances of the assault or the nature of the plaintiff’s injuries at an early stage as the first defendant had done. Therefore leave should not be granted against the second defendant, even if it was granted against the first defendant.
Second, that the plaintiff had a potential action against his former solicitors. Those solicitors had very clearly been negligent in not providing common law advice to the plaintiff. His cause of action against his former solicitors was very strong. This was a highly relevant factor to be taken into account in the synthesis exercise.
I will deal first with the issue of the delay by the plaintiff in commencing proceedings. For a number of reasons, taken in combination, I conclude that the plaintiff has provided a satisfactory explanation for the delay on his part.
First, I accept the plaintiff as a credible and honest witness. The plaintiff answered questions clearly, consistently and in a direct fashion.
Second, the plaintiff was adamant that he had not received advice from Hymans generally, or specifically in relation to his future rights. The reliance that I place on this evidence alone must be tempered to a degree by the plaintiff’s acknowledged memory and attention problems caused by his injuries.
Third, the correspondence which the plaintiff said he had received from Hymans was produced. There was no suggestion from counsel for the first defendant that the correspondence contained relevant advice, in particular advice as to common law rights, given by Hymans to the plaintiff. Rather, counsel invited the court to conclude that the correspondence produced was not necessarily a complete set of all correspondence from Hymans to the plaintiff, and that there may well be other correspondence from Hymans which did include common law advice.
In relation to the Hymans correspondence, counsel for the second defendant took an approach in submissions inconsistent to that of the first defendant. He argued that the lack of any advice, in particular common law advice, in the correspondence from Hymans to the plaintiff very clearly indicated that Hymans were negligent in representation of the plaintiff. The plaintiff’s potential cause of action against Hymans should be taken into account, so counsel for the second defendant argued, as a very relevant factor in considering whether the extension of time to issue proceedings should be granted. I will return to this argument later.
Fourth, the plaintiff had no knowledge of relevant legal matters independent of information he received from his solicitors from time to time. For instance, in answer to a question from counsel for the first defendant as to his understanding of the common law proceedings section in the Cambridge letter of 9 February 2005, the plaintiff made clear that he had that understanding because common law matters had been explained to him on a number of occasions by Maurice Blackburn and his counsel, and added further:
I’m a layman, I do not understand the law, I’ve only finished Year 11 at high school.
And in relation to his retainer with Hymans, the plaintiff stated:
Well, I’m not being rude or disrespectful, but I went to Hymans, I put my trust in them. I shouldn’t be held accountable for putting trust in solicitors when I’m not sure whether they’re doing the right thing or the wrong thing by me.
I accept that until recently, when he received some explanation from his current lawyers, the plaintiff had no understanding of the concept of a common law claim, or of his potential entitlement to common law damages. I consider that even had he received and read the Cambridge letter of 9 February 2005, absent advice from a lawyer, the paragraphs beneath the heading ‘Common Law Proceedings’ would have meant little to him.
Fifth, the plaintiff gave evidence, which I accept, that by early 2005 he believed that he had exhausted all of his legal rights.
Sixth, the assault has caused the plaintiff to suffer at all times since the event serious psychological ill health, causing at most times total incapacity for employment, giving rise to the need for ongoing prescription of medication and treatment by practitioners, and resulting in disability including as described by the plaintiff in his evidence.
Seventh, some time in 2012 the plaintiff’s flatmate encouraged him to give his current solicitors a call to ‘find out where you stand’. In answer to questions from counsel for the first defendant, the plaintiff put it this way:
PLAINTIFF: He said, ‘I have got a small payout, you did not receive a payout. Why don’t you give them a call to see where you stand?’
COUNSEL: And do you say that concept had just never occurred to you in eight years?
PLAINTIFF: No, it hadn’t.
Eighth, with the impetus of encouragement from his flatmate, the plaintiff attended his current solicitors on 27 February 2013. It is clear from that point onwards that the plaintiff retained current solicitors and instructed them to act on his behalf in pursuing his common law rights.
In my view, this sequence of events establishes a very credible and reasonable explanation for the delay on the part of the plaintiff. He had no knowledge of his legal rights, and placed his faith in solicitors, first Hymans and more recently his current solicitors. I accept that as of early 2005 the plaintiff believed that his rights in relation to the assault had been exhausted. The plaintiff depended on legal advice to know what his rights were. He has shown an intention to pursue those rights once advice has been received. Once prompted in 2012, he attended with his current solicitors and has since continued to instruct them in relation to this claim. There is no evidence that Hymans provided the plaintiff with common law advice in the period to early 2005. I am satisfied that had those solicitors provided such advice the plaintiff would have acted, as he has subsequently done. I find that Hymans did not provide advice to the plaintiff in the period to early 2005 as to his potential common law entitlements in respect of the assault or as to any time limits faced by the plaintiff.
I accept that the plaintiff took reasonable steps to obtain legal advice in relation to his rights consequent upon the assault. It is relevant that the nature of the advice he obtained from Hymans did not include advice as to his potential common law rights, or as to time limits which applied to the exercise of those rights. I accept that despite taking steps to obtain legal advice, the plaintiff was ignorant in relation to common law matters and time limits until he commenced to attend with his current solicitors in February 2013.
I do not agree with counsel for the first defendant’s contention that, in the context of the facts as found in this case, the plaintiff can be criticised for not having pursued legal advice from alternative solicitors from early 2005. Given his understanding that his legal rights had been exhausted, which was reasonable in the circumstances of his lack of legal knowledge and the limited advice he had received from Hymans, there was in fact no reason for him to seek alternative advice.
The conclusion that I have reached in relation to the reasonableness of the plaintiff’s explanation for delay does not depend on whether or not the plaintiff at some stage received and read the Cambridge letter of 9 February 2005. That letter, and in particular the paragraphs beneath the heading, ‘Common Law Proceedings’, was not a substitute for proper legal advice. A layperson with no legal knowledge, suffering from a serious psychological injury, could not be expected to understand from reading those paragraphs whether he or she had potential common law rights, what those rights were, what steps he or she was required to take in pursuit of those rights, or what time limits applied to the taking of those steps.
In relation to the issue of delay, counsel for the second defendant placed some reliance upon delay in progressing the plaintiff’s claim following the first attendance by the plaintiff with his current solicitors on 27 February 2013. In Millard v State of Victoria,[5] Mandie AJA, with Chernov and Ashley JJA agreeing, cited with approval what was said by Stark J in Anisiena v H Crane Haulage Pty Ltd:[6]
It is also conceded that the only step the claimant took was to instruct his solicitors to prosecute his claim. How they did this at against what parties the action was to be brought, were matters that he left to them. In my judgment it was both reasonable and desirable to do so. I do not think it would have been at all reasonable for him to have interfered with the conduct of his action. I would not do so myself, and I am of the opinion that it was entirely reasonable for a layman without legal qualifications to do as he did.
[5][2006] VSCA 29, [37].
[6][1974] VR 670, 674.
There is no evidence of any significant delay on the part of the plaintiff once he was encouraged by his flatmate to attend with Maurice Blackburn. Up to the point of attendance with his current solicitors the plaintiff had no additional information as a consequence of his discussion with his flatmate, other than that his flatmate had managed to obtain a small payout. Once the plaintiff had instructed his current solicitors in February 2013, there was no unexplained delay on his part.
Of course, as counsel for the first defendant argued, a conclusion that there was a reasonable explanation for delay on the part of the plaintiff is not the end of the matter. Whilst neither defendant alleged specific prejudice, both relied on the general prejudice caused by delay, which should be presumed to be greater because of the length of the delay.
In the plaintiff’s case, at an early stage following the assault there was an investigation of the circumstances of the assault by Victoria Police. There was no suggestion by either defendant that the police officers involved in the investigation are no longer available to give evidence, or that documents detailing the police investigation will not be available to those officers.
A relatively short time after the assault an investigation was commissioned by Cambridge. That investigation includes statements of potential witnesses, Messrs King, Grange and Barbari. In addition, there is a report prepared by the plaintiff, a sketch plan of the hotel grounds, and an article from the local newspaper.
Knowledge as to the identity of relevant witnesses and the existence of these investigations and statements clearly assist in ameliorating general prejudice to the defendants caused by the delay in commencing proceedings.
The same point can be made in relation to medical material relevant to the assessment of injury, loss and damage. Ms Anderson has deposed to the existence and availability of clinical records of treating doctors. I have read the medico-legal reports exhibited to the affidavit of Mr Calic. Clearly there will be available to the defendants medical evidence from treaters and medico-legal experts from very shortly after the assault to date, which will enable the defendants to explore relevant issues including causation, the nature and extent of injuries suffered by the plaintiff, and loss and damage consequent upon those injuries.
In all the circumstances, and despite the time which has passed since the assault occurred, while some prejudice might be presumed because of the length of delay, it is unlikely the defendants will suffer significant prejudice. In my view the defendants will still have access to a fair trial.
In final submissions, counsel for the second defendant sought to establish that his client was in a different position to the first defendant in relation to the issue of general prejudice for a number of reasons, including:
(a) The first time the second defendant was made aware of the existence of the claim was some time shortly after the filing of the writ in 2014;
(b) Whilst there had been an initial investigation following the plaintiff’s WorkCover claim, that had been limited to obtaining statements from employees of the first defendant;
(c) This meant that the first defendant was in a better position relative to the second defendant, because statements had been obtained from relevant witnesses before memories had been diluted by the effluxion of time;
(d) The first defendant had the additional benefit of having commissioned a medico-legal report shortly after the incident took place; and
(e) These issues of prejudice were relevant not only to the plaintiff’s claim against each defendant, but also to contribution proceedings between the defendants.
I do not accept counsel for the second defendant’s argument that the second defendant is in a materially different position to the first defendant in relation to prejudice. First, no specific prejudice has been alleged by either defendant. Second, there is no property in the witnesses. The second defendant is in as good a position as the first defendant to take advantage of the early report of medico-legal psychiatrist Dr Wahr, and call as witnesses laypersons who were then in the employ of the first defendant.
Third, there is no evidence either way as to whether the second defendant undertook its own investigation of the circumstances of the assault in late 2002 or early 2003. Certainly there was a police investigation, of which the second defendant would no doubt have been aware. Further, it is clear from the report of Cygnus to Cambridge, dated 20 February 2003, that Mr Gregory Carroll, described as the hotel manager, was contacted in relation to the investigation commissioned by Cambridge.
Fourth, there is of course some advantage to the second defendant in knowing from the content of statements made by employees of the first defendant the likely substance of each witness’ evidence before they attend court.
I turn to the submission made by counsel for the second defendant as to the relevance of the lack of advice given by Hymans to the plaintiff in relation to his common law rights. It was submitted that the plaintiff would as a consequence have a claim against Hymans for breach of retainer or negligence. Counsel for the second defendant submitted that on the basis of the materials available, the plaintiff’s claim against his former solicitors appeared strong, and that this was a relevant factor for the court to take into account as one of the competing considerations requiring synthesis. In Tsiadis, Buchanan JA, with whom Ormiston and Callaway JJA agreed, said:[7]
The weight to be given to the availability of a cause of action against a solicitor will depend upon the circumstances of each case. The liability of a solicitor is not to be equated with that of the original wrongdoer, and accordingly I do not think it is correct to conclude that an applicant with a good prospect of successfully suing his solicitor will suffer no prejudice if his application is refused. The liability of the solicitor will be determined not only by the likelihood of establishing liability on the part of the original wrongdoer, but also by the terms of the solicitor's retainer, the instructions given by the client from time to time and by the manner in which the solicitor's work has been performed. If the plaintiff is successful in an action against the solicitor, the damages to be awarded are not based upon an assessment of the losses, pain and suffering caused by the injury sustained by the plaintiff, but are commensurate with the value of the lost chance to recover damages from the original tortfeasor. Proceedings against the solicitor will be more complex and expensive than proceedings against the original wrongdoer. Usually the likelihood that the applicant will succeed in an action against his or her solicitor cannot be known with any precision when an application under s 23A of the Act is decided.
[7]Tsiadis (2001) 4 VR 114, 121–2 [28] (citation omitted).
The Hymans file is not in evidence. There is no evidence in this application from the solicitors. No party sought to tender the correspondence from Hymans produced by the plaintiff. In all the circumstances, the claim against Hymans is far from certain both as to the question of establishing liability on the part of those solicitors for damages to the plaintiff, and the quantum of those damages. Even if he succeeded in such a claim, there are good reasons why the outcome for the plaintiff might be substantially different to the outcome of his common law proceeding against the defendants. Certainly one could expect any claim against Hymans to be complicated.
The potential claim against Hymans is not a significant consideration in the synthesis exercise required of the court.
I take account of relevant factors including the reasonable explanation for delay by the plaintiff, the reasonableness of steps taken by the plaintiff to obtain legal advice and medical treatment, the nature of the advice provided to the plaintiff by Hymans, the lack of legal knowledge by the plaintiff at least until he commenced to attend with his current solicitors, the seriousness of the psychological injury afflicting the plaintiff since the assault, and the fact that the defendants are likely to have available to them a fair trial in reaching their conclusion that in the circumstances of this case it is just and reasonable that the time for commencement of proceedings by the plaintiff against the defendants be extended in accordance with the plaintiff’s application.
I propose to make an order that the plaintiff be granted an extension of time in which to bring this proceeding to 12 May 2015. I will hear the parties as to the question of costs.
3
2
0