Matthew John Morris v Crest Kitchens Pty Ltd
[2009] ACTSC 96
•24 August 2009
MATTHEW JOHN MORRIS v CREST KITCHENS PTY LTD
[2009] ACTSC 96 (24 August 2009)
LIMITATION OF ACTIONS – personal injury – claim against employer – workers’ compensation claim previously accepted – action commenced three months out of time – satisfactory explanation for delay – no significant prejudice to defendant – justice favours grant of extension – extension granted
Limitation Act (1985) ss 36,
Court Procedures Rules (2006) r75
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Nguyen v Jajic [2007] ACTSC 12
Web Scaffolding Pty Limited (CAN 069 023 492) v Laws [2009] ACTSC 79
No. SC 230 of 2009
Judge: Master Harper
Supreme Court of the ACT
Date: 24 August 2009
IN THE SUPREME COURT OF THE )
) No. SC 230 of 2009
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:MATTHEW JOHN MORRIS
Plaintiff
AND:CREST KITCHENS PTY LTD (ACN 008 621 225)
Defendant
ORDER
Judge: Master Harper
Date: 24 August 2009
Place: Canberra
THE COURT ORDERS THAT:
The period within which this action may be brought be extended to 19 February 2009
The plaintiff pay the costs of the application
Those costs not be recoverable until the conclusion of the substantive proceeding
This is an application for an extension of time to commence proceedings in an action for damages for personal injury by an employee against an employer. The plaintiff alleges an injury in the course of his employment on 9 November 2005. He commenced the present action on 19 February 2009, some three months out of time. A defence was filed on 26 June 2009 pleading the bar imposed by section 16A of the Limitation Act 1985. The present application was filed on 7 July, asking the Court to exercise its discretion under section 36 of that Act to extend the limitation period. The defendant opposes the application.
The evidence in support of the application consists of two affidavits by the plaintiff, an affidavit by his solicitor Mr Andrew Finlay, and statements signed in April 2009 by Mr Brad Hammond and Mr Miguel Gregory. Mr Hammond and Mr Gregory were fellow employees of the plaintiff at the time of his injury.
The plaintiff deposes that during 2005 he was a third-year apprentice cabinetmaker employed by the defendant. He says that he injured his lower back in the course of lifting and assembling cupboards weighing about 135 kilograms, at the premises of a customer. He made a claim for workers’ compensation with Allianz Australia Insurance Limited. By January 2006 the insurer had put in place what was described as a personal injury plan, evidently aimed at the plaintiff’s rehabilitation.
The plaintiff says that he saw a solicitor on 3 February 2006. This seems to have been because a dispute had arisen with the insurer about payment of medical expenses. The plaintiff says that he knew nothing about any possible entitlement to sue for damages under the general law as opposed to making a claim for workers’ compensation. The solicitor did not raise this with him. He saw the solicitor on a second occasion in May 2006, and again no mention was made of the availability of an action for damages.
The plaintiff says that since November 2005 he has suffered from low back pain which has restricted his working capacity. His general practitioner has completed certificates to the effect that he has been unfit for work for various periods, and these have been submitted to the insurer. The last of these in evidence is dated 31 August 2006, although the plaintiff thought there might have been later certificates.
In January 2009 the plaintiff, because of back symptoms, saw Mr Finlay, who told him that he might have a claim for damages under the general law based on a breach by his employer of its duty of care to him. He recalled, wrongly as it turned out, that his injury had happened in November 2006. Mr Finlay told him that he was well within the limitation period to commence proceedings. The plaintiff later found letters from Allianz and realised that he had been wrong about the date of his injury. He arranged to see Mr Finlay again, in February 2009. Mr Finlay told him that the limitation period had expired and that he would need to apply for an extension if he was to pursue a claim for damages. The plaintiff gave Mr Finlay instructions to take whatever action was necessary to protect his position.
A perusal of the earlier solicitor’s file showed that the solicitor had written to the plaintiff in May 2007 and again in September 2007, asking the plaintiff to contact him. The plaintiff conceded that he must have received those letters, and that he had not contacted the solicitor as requested. His explanation was that the insurer had resumed paying for his treatment expenses, and he was back at work, so that as far as he was aware he did not require any action by the solicitor. The letters did not advert to a claim for damages.
Mr Finlay’s evidence is that he first became aware that the limitation period had expired in February 2009. He immediately commenced the present proceedings and served the originating claim on the defendant and the insurer. The statements by Mr Hammond and Mr Gregory generally confirm the plaintiff’s version of the incident in which he injured his back and give their addresses and telephone numbers. They also name another employee who was probably present at the time of the injury.
Section 36 of the Limitation Act requires the Court, in determining an application for an extension of time, to have regard to all the circumstances of the case, including the length of and reasons for the delay on the part of the plaintiff and the extent to which there is likely to be prejudice to the defendant.
The principles to be applied in exercising the discretion were set out by the High Court of Australia in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. The plaintiff in that case claimed damages for negligence and breach of statutory duty in respect of a failure by an employed gynaecologist to give proper medical advice. On the recommendation of the gynaecologist, she had undergone a hysterectomy which, she said, had been unnecessary and inappropriate. These events had taken place in 1979: by the time the plaintiff made her application, the gynaecologist was living in Hong Kong. Attempts by the solicitors for the Health Authority to contact him had been unsuccessful. As Toohey and Gummow JJ explained at 546, it was apparent that if the proposed action were to proceed to trial, the crucial issue would be what was said during a conversation more than seventeen years earlier between the plaintiff and the gynaecologist. The limitation period was three years. An application for extension had been refused in the District Court. The Queensland Court of Appeal had upheld the appeal and granted the extension. The High Court by majority (Dawson, Toohey, McHugh and Gummow JJ, Kirby J dissenting) allowed the appeal and restored the orders made in the District Court. As Toohey and Gummow JJ said at 548, a material consideration was whether, by reason of the lapse of time, a fair trial was possible. This was a question to be answered by reference to the situation at the time of the application, and it was no answer to a claim of prejudice to say that in any event the defendant might have suffered some prejudice if the applicant had not brought proceedings until just before the limitation period expired.
McHugh J at 552 identified four broad rationales for the enactment of limitation periods. First, relevant evidence was likely to be lost as time went by. Second, it was oppressive to a defendant to allow an action to be brought long after the circumstances which gave rise to it had passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims could no longer be made against them. Insurers had a particular interest in knowing that they had no liabilities beyond a definite period. Fourth, the public interest required that disputes be settled as quickly as possible.
McHugh J made it clear at 551 that a statutory provision such as section 36 was not to be read as giving an applicant a presumptive right to an order upon satisfying listed conditions. The applicant bore an onus of showing that the justice of the case required the exercise of the discretion in her favour. The longer the delay in commencing proceedings, the more likely it was that the case would be decided on less evidence than was available to the parties at the time the cause of action arose. In the case before the court, quite apart from proved prejudice, the long delay gave rise to a general presumption of prejudice. It was probable in the ordinary course of events that the plaintiff had discussed her operation and the reasons for it with friends and relatives and perhaps nursing staff. If the action had been commenced within the limitation period one or more persons in those categories might have been able to provide evidence or information favourable to the defendant. By the time an application for extension was made it was likely that such conversations would no longer be in the memory of the participants. The finding of actual prejudice, and the possibility of other prejudice, gave rise to an overpowering case for resisting the application (at 556).
In a case like Brisbane South v Taylor, where success in the action depends on findings of fact about a conversation which took place many years ago, the prejudice is obvious. The longer the delay the greater the prejudice, particularly in cases where evidence about conversations in crucial.
In Nguyen v Jajic [2007] ACTSC 12, Connolly J dismissed an appeal from a magistrate who had refused an application to extend a limitation period in relation to a motor vehicle accident. In that matter, the plaintiff had served a personal injury insurance claim form a month after the accident, but had done nothing more until five years later when he instructed solicitors. The applicant gave evidence before the magistrate, but the solicitor did not. The magistrate found that there was no explanation for the delay between instructing the solicitor and the expiry of the limitation period. The solicitor had had about eight months to start proceedings, had not done so and had given no explanation for the delay. There had been no medical evidence to support the application. Connolly J found that the magistrate had not fallen into appealable error in concluding that the applicant had not satisfied the burden of establishing that the discretion should be exercised in her favour.
In Webb Scaffolding Pty Limited v Laws [2009] ACTSC 79, Buchanan J, in allowing an appeal from a decision of mine, dismissed an application for an extension of time in a claim by an employee against an employer where proceedings had been commenced some six months after the expiry of a six-year limitation period. The plaintiff had instructed his solicitors four years after the injury in general terms about his claim. There was no persuasive explanation for the delay of some two and a half years before proceedings were commenced. Although a defence was filed promptly pleading the bar, the plaintiff’s solicitors did not apply for an extension of the limitation period for another eighteen months, by which time the action had been taken to be struck out by operation of rule 75(2) of the Court Procedures Rules 2006. There was no explanation for that delay. Hence it was necessary for the plaintiff to apply, not only for an extension of time, but for the reinstatement of the action.
Buchanan J said at paragraph 17 that the plaintiff had a clear and positive onus to justify an extension of time, and that he had failed to satisfy that onus. The onus included an obligation to show that the defendant would not be prejudiced by the delay, and the plaintiff had not succeeded in doing so. In the circumstances the plaintiff had not made out his case for an extension of time.
In the present case, the plaintiff personally has given a convincing explanation for the delay from his perspective. He was unaware of the distinction between a claim for workers’ compensation and a claim for damages until Mr Finlay explained it to him about two months after the expiry of the limitation period. As soon as the plaintiff realised that he had been mistaken about the date of his injury, he told Mr Finlay, who commenced proceedings and served the originating process with rapidity. There is no explanation for the failure of the previous solicitor to advise the plaintiff about the limitation period or to advise him to commence proceedings, but it is plain enough that the earlier solicitor simply did not direct his mind to the availability of a claim for damages under the general law. In the circumstances there is nothing more the earlier solicitor could have said by way of explanation for the delay.
The defendant and its insurer have been on notice of the injury and in possession of medical certificates and reports since about two months after the injury. They are now in possession of all of the plaintiff’s statements relevant to the issue of liability. On the evidence on this application I am satisfied that the plaintiff has satisfied the onus on him to establish absence of actual prejudice to the defendant. It must be acknowledged, consistently with Brisbane South, that there will always be the potential of unidentified and perhaps unidentifiable prejudice arising simply from the passage of time, but this must be seen in comparative terms. The High Court in Brisbane South were dealing with an action the outcome of which would depend upon findings about a conversation seventeen years earlier. The present case will depend upon evidence about a factual incident a little over three years before proceedings were commenced. Counsel for the defendant in the present case did not submit that his client was likely to be disadvantaged by the delay.
The Court in the present case should exercise its discretion to permit the plaintiff to bring his action. The limitation period will be extended to 19 February 2009, the date on which proceedings were instituted.
The plaintiff has come to the Court seeking an indulgence and should pay the defendant’s costs. Although the defendant opposed the application, the opposition was constrained and reasonable. There was nothing in the conduct of the defendant towards the application which should deprive it of its costs. Having regard to the relative financial positions of the parties, recovery of the costs of the application should be postponed until final orders are made in the action.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 24 August 2009
Counsel for the plaintiff: Mr RL Crowe SC
Solicitors for the plaintiff: Pamela Coward Higgins Lawyers
Counsel for the defendant: Mr SH Pilkinton
Solicitors for the defendant: Mallesons Stephen Jaques
Date of hearing: 24 July 2009
Date of judgment: 24 August 2009
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