Martin v Nu-Lite Windows (Victoria) Pty Ltd (in liquidation) & Ors (Ruling)
[2023] VCC 329
•10 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CI-21-03399
| ANDREW MARTIN | Plaintiff |
| v | |
| NU-LITE WINDOWS (VICTORIA) PTY LTD (IN LIQUIDATION) | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
| and | |
| NEW DIMENSATIONS HOMES (VICTORIA) PTY LTD (IN LIQUIDATION) | Third Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 March 2023 | |
DATE OF RULING: | 10 March 2023 | |
CASE MAY BE CITED AS: | Martin v Nu-Lite Windows (Victoria) Pty Ltd (in liquidation) & Ors (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 329 | |
RULING
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Subject:LIMITATION OF ACTIONS
Catchwords: Negligence – whether limitation period should be extended
Legislation Cited: Limitation of Actions Act 1958 (Vic), s23A
Cases Cited:Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Winter-Cooke v Winter-Cooke [2022] VSCA 264; Griffiths v Nillumbik Shire Council [2022] VSCA 212; Tsiadis v Patterson [2001] 4 VR 114
Ruling: Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison KC with Mr L Howe | Robinson Gill |
| For the First and Second Defendants | Ms S Manova | Russell Kennedy |
HIS HONOUR:
Overview
1The question posed in this application is whether a period of limitation should be extended in circumstances where the common law proceeding was commenced nearly twenty-one years after the cause of action arose,[1] and nearly fifteen years after the relevant period of limitation expired.[2]
[1] The common law claim is based on a date of injury of 29 August 2000.
[2]Before making allowances for periods when time may not have accrued due to steps taken by the plaintiff to advance a claim for an impairment benefit or the serious injury application.
2In my opinion, the answer to this question is a resounding “no”.
Limitation periods
3The decision to refuse to extend the period of limitation is founded upon the fundamental rationale and purpose of limitation periods. As to this, in drawing upon the often-cited statement of principle of McHugh J in Brisbane South Regional Health Authority v Taylor,[3] the Court of Appeal, in Winter-Cooke v Winter-Cooke,[4] said:
“The first observation is that there is a general public interest in ensuring that litigation is brought, prosecuted and resolved in a timely manner. A statutory limitation period represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within that period, notwithstanding that the enactment of that period may result in a good cause of action being defeated. The discretion to grant an extension of time should be seen as requiring the person applying for it to show that his or her case is a justifiable exception to the rule that the welfare of society is best served by the limitation period in question. Statutory limitation periods advance the administration of justice because they ensure that members of the public are able to order their personal and business affairs on the basis that, once a limitation period has expired, their rights and interests are no longer at risk of litigation. This is particularly so where parties to a dispute who are aware of their legal rights have negotiated a settlement and can reasonably consider that the dispute has been laid to rest.”[5]
(Footnotes omitted.)
[3](1996) 186 CLR 541 at paragraphs [552]-[553].
[4][2022] VSCA 264.
[5]Ibid [89] (per Kyrou and Macaulay JJA, J Forrest AJA).
4In addition, as said by the Court of Appeal in Griffiths v Nillumbik Shire Council[6] about a limitation period in a proceeding, it:
“… is not just some easily movable line in the sand. Rather, it is a formidable hurdle which can only be overcome by the applicant satisfying the test laid down by the relevant extension of time provisions.”[7]
(Footnote omitted.)
[6][2022] VSCA 212.
[7]Griffiths v Nillumbik Shire Council (op cit) at paragraph [66].
No extension unless it is just and reasonable
5In this application, the plaintiff seeks an extension of the period of limitation. Mr Harrison KC appeared on behalf of the plaintiff together with Mr Howe. Ms Manova appeared on behalf of the defendants. The application proceeded in the usual way. The parties tendered affidavits and documents relied on. The plaintiff gave limited oral evidence.
6The relevant legal principles are not in dispute. It is agreed that the relevant extension of time provisions are contained in s23A of the Limitation of Actions Act 1958 (Vic) (“the Act”). The Court may extend the period of limitation if it is just and reasonable to do so (emphasis added).
7As Buchanan JA said in Tsiadis v Patterson,[8] in considering whether to extend the period of limitation, the Court is required to conduct a synthesis of all relevant considerations, including those set out in s23A(3)(a)-(f) (inclusive) of the Act.
[8][2001] 4 VR 114 at paragraph [31].
8While the decision to extend a period of limitation involves a synthesis of all competing considerations, fundamental to that exercise is that it be “just and reasonable” to do so, keeping in mind the purpose and rationale of a limitation period and that it is not some easily moveable line in the sand.
9At the core of “just and reasonable” is the issue of whether the expiry of the limitation period means that the defendant is denied a fair trial. Of course, there is a difference between a perfect trial and a fair trial, but, if a defendant is now denied a fair trial, it is hard to imagine a scenario where it could be found to be just and reasonable to extend the period of limitation.
The common law claim
10In this proceeding, by writ and statement of claim dated 13 August 2021, the plaintiff claimed that the first defendant was negligent in its capacity as his employer when it required him to transport aluminium windows to a construction site on 29 August 2000. That construction site was then under the control of a third-party builder.[9]
[9] Named as a third defendant when then common law proceeding was commenced.
11The plaintiff alleged negligence or breach of statutory duty as against his employer in several ways, including the failure to have a safe system for unloading the windows; allegations regarding the condition of the premises; and, in particular, that a wet concrete slab caused the plaintiff to slip while unloading the windows. Specifically, he alleged that he slipped and fell when carrying windows on a wet and slippery concrete slab (“the incident”).
12The plaintiff’s employer (the first defendant) was placed into liquidation during 2010. The second defendant is named as the insurer of the employer for WorkCover purposes. The interests of the first and second defendants are essentially the same. The evidence is vague as to where the incident is alleged to have occurred. The plaintiff identified the job site as “Craigieburn” in his initial claim form. Other evidence raised as an issue who was in control of the job site, or if it was in Craigieburn. Ultimately not much turns on this issue. There is no suggestion that an inspection of the alleged slippery slab can now be conducted at a building site that was likely completed around two decades ago.
13Next, it is said that the defendant cannot now find any relevant documents, apart from an initial claim for compensation, that may have been in existence regarding the delivery of the windows, or relevant to issues such as training, instruction, and occupational health & safety.
14Further, the defendants (and not the plaintiff) identified and attempted to contact several potential witnesses, including the former owner of the first defendant, a foreman, and the person identified on the plaintiff’s claim form as a witness. An investigation agency was then engaged to locate and speak to potential witnesses. Probe Investigations then provided a report dated 19 August 2020.[10] Several potential witnesses were spoken to for the purposes of that report. Broadly, none of them have any memory of the incident, or a clear memory of the plaintiff. None of them could identify any relevant documents that may have been in existence. None of them had any memory of the premises or the slab upon which the plaintiff claims to have been injured.
[10] Plaintiff’s Court Book (“PCB”) 90.
15Two persons identified as potential witnesses did provide signed statements as part of the circumstance investigation report.
16First, Mr Andrew (“Andy”) Lucas provided a statement dated 3 August 2020.[11] He is the person identified on the plaintiff’s claim form as a witness. In his statement he gave a broad description of his job as a truck driver with Eastwood Transport, who had a contract with the first defendant to deliver windows. He cannot recall the incident. At best he has a vague memory of the plaintiff but cannot say if he was with the plaintiff on the day of the incident.
[11] PCB 118.
17Second, Ms Glenda Lambie provided a statement dated 4 August 2020.[12] She was the WorkCover administration officer of the first defendant. She provides a vague description of the system of work and of the plaintiff. But she also has no memory of the incident. As she says, these events happened a long time ago. She has an equivocal memory as to whether there would have been relevant ‘liability’ documents in existence at the time of the incident.
[12] PCB 113.
18Other persons spoken to as part of the Probe report declined to provide statements, including Mr Tony Eastwood, the owner of Eastwood Transport. To the extent that there is evidence from them, that evidence is of no memory of the plaintiff or the incident.
19The plaintiff submitted that the defendants could have done more to try and refresh the memory of the potential witnesses. Leaving to one side whether there is merit in that submission – for example, it is not clear to me what more could have been done to refresh Mr Lucas’ memory – it is trite to note that the plaintiff has not made any attempt to locate witnesses or refresh their memory, where there is no property in a witness.
The plaintiff’s oral evidence
20It is convenient at this point to briefly mention the plaintiff’s oral evidence. It need only be brief, because his oral evidence did not add much at all to the relevant evidence for the purposes of this application.
21During cross-examination, he presented as a belligerent and argumentative man, but by the same token appeared to be doing his best to answer questions asked of him. He was adamant that Mr Lucas was the driver with him at the time of the incident.[13] He was cross-examined about the limited time that he had off work after the incident, jobs since he left the first defendant, contact with lawyers and the treatment he has had over the years.
[13] Transcript (“T”) 8, Line (“L”) 4-9.
22On the subject of treatment, he was cross-examined about an entry in a clinical record of 14 July 2016 where the doctor recorded giving him some sort of a brochure about compensation and suggesting he see a lawyer. His oral evidence was that the doctor gave him “a brochure for something”.[14] He was then cross-examined about what he had said about that brochure in his affidavit sworn 25 January 2023.[15] His oral evidence was inconsistent with his affidavit. But other than to highlight some unreliability in his evidence, not much turns on the issue of whether his doctor told him to see a lawyer in July 2016. There is no suggestion that he did see a lawyer at that time and even if he was given some sort of advice by his doctor to see a lawyer, I am not persuaded that a failure to act on such advice means he has acted unreasonably, or that it makes any difference to the result of this application.
[14] T 19, L 7.
[15] PCB 79 at [19].
23The balance of his oral evidence does not add much to the synthesis that is required to be undertaken.
Can a fair trial be had?
24The defendants submitted that, due to the effluxion of time, there is a lack of documentation and witnesses available, which results in the defendants being unable to fairly investigate and respond to the allegations made by the plaintiff, or to investigate any potential involvement of New Dimensions Homes (Victoria) Pty Ltd (in liquidation), which entity the plaintiff initially made allegations against as the third defendant to the common law proceeding, but then discontinued against in April 2022.
25On behalf of the defendants, it is submitted that the delay is such that a fair trial is no longer available. The specific prejudice caused by the effluxion of time cannot be overcome.
26The plaintiff provided affidavits in support of the application to extend the period of limitation. Those affidavits are really directed towards his own conduct since suffering the injury. He said that he was unaware of common law or limitation periods. He sets out the events that caused him to consult Robinson Gill Lawyers and says he has since that time acted reasonably and promptly to advance things.
27In respect to prejudice, the plaintiff submitted that a claim was lodged after the incident and accepted. He submitted that he had medical treatment for the period of time, until that treatment was terminated in 2001. The defendants had been able to investigate the claim, or could have investigated it when he lodged the claim for statutory compensation benefits, they had paid for some treatment and had, later on (much later on), considered an impairment benefit claim made by him and, in those circumstances, a fair trial was possible.
28The plaintiff also submitted that he has an ADHD condition and, at times, has resorted to using marijuana. He asserted or, perhaps, inferred, in his evidence that his ADHD and/or reliance on marijuana had impacted on his ability, at times, to pursue a claim. But the material before the Court does not establish that he is, or has been, under a disability for the purposes of s23A(3)(d). In the many years since the incident, he has been involved in many other legal disputes without difficulty. He was able to consult Robinson Gill after one such dispute. As appropriately conceded by his senior counsel,[16] he is not under a disability in a legal sense.
[16] T 4, L 4.
29The plaintiff took no steps until June 2018 to advance a claim against the defendants. It may be that before June 2018 he was ignorant of the concept of common law or the limitation period. But that is no antidote to the fact that the defendants are now faced with defending the trial of a specific incident that occurred nearly twenty-one years before the writ was issued, in circumstances where no witness has been identified with a memory of the plaintiff, or the incident, and in circumstances where no relevant liability documents have been located. It is now too late to investigate whether the slab was slippery, or what may have caused the incident.
30In fact, the only liability evidence at trial will likely be the plaintiff’s oral evidence. He has not produced any relevant document regarding the incident, other than the initial claim for compensation which described the cause of the incident as “slipped on concrete wet slab when holding window frame”.[17] The paucity of independent or objective evidence means a fair trial is now not possible.
[17] PCB 235.
Synthesis
31I consider the length of delay in this proceeding to be significant. The best-case scenario for the plaintiff is that he was ignorant of the limitation period until he attended his current solicitors for an unrelated matter in June 2018. But even if time is stopped at June 2018 for the purposes of this discussion, it is still nearing 18 years after the incident and 12 years after the limitation period expired. On any view that is a significant period of time to have passed from the incident.
32I also consider that the likely prejudice to the defendants, should the period of limitation be extended, is such that they would be denied a fair trial.
33I do not consider the plaintiff to have been under a disability such that he could not have sought legal advice or taken steps to advance the cause of action before consulting his solicitors in June 2018. Unfortunately for him, by the time he sought to advance things, the employer was in liquidation and the inherent difficulties were in existence when it came to searching for documents or potential witnesses.
34I also accept that the defendant is at some disadvantage in considering the plaintiff’s medical condition and the causal connection to the incident, but in the overall synthesis it is simply one consideration. As the plaintiff submitted, there is still something of a paper trail of medical treatment, and the defendant does have medico-legal opinion to present. It is not a scenario where the defendant has been totally denied the ability to investigate and respond to the plaintiff’s alleged back injury.
35The plaintiff is also a man who has engaged with the legal profession from time to time for other matters in which he required legal advice. Even if I accept that he was unaware of the limitation period, equally his oral evidence is that he was always aware of the circumstances of the incident and of ongoing back pain since then. He does not and cannot go so far as to submit that he could not have consulted lawyers at an earlier period of time regarding the incident. His ignorance of his potential common law rights is a relevant consideration, but equally so is the fact that, faced with a frank event and his claim of ongoing back pain, there was nothing stopping him from doing something to get legal advice at a much earlier stage. These are relevant considerations in the synthesis but the result does not hinge on these considerations.
36The plaintiff seems to have approached this application on the basis that the period of limitation is an easily moveable line in the sand. But, on this occasion, for the reasons provided, it is a line that should not be moved. Principally, that is because in the synthesis of factors the inability of the defendant to get what I consider would be an acceptably fair trial is such that the indulgence to extend the period of limitation should not be granted.
37Accordingly, I refuse the application to extend the period of limitation.
38I shall hear from the parties as to the question of costs.
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