McDermott v Brimbank City Council
[2014] VCC 1683
•10 October 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE DAMAGES AND COMPENSATION LIST | Revised Not Restricted Suitable for Publication |
Case No. CI-13-04977
| John McDermott | Plaintiff |
| v | |
| Brimbank City Council | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 22 September 2014 | |
DATE OF JUDGMENT: | 10 October 2014 | |
CASE MAY BE CITED AS: | McDermott v Brimbank City Council | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1683 | |
REASONS FOR JUDGMENT
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Catchwords: Limitation of actions – extension of time within which the action may be brought
Legislation Cited: Limitations of Actions Act 1958 (Vic) s 23A – Accident Compensation Act 1985 (Vic)
Cases Cited:Tsiadis v. Patterson [2001] VSCA 138 – Richards v State of Victoria & Ors [2001] VSC 52 – Bell v SPC Ltd [1998] VR 123 – Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Judgment: Leave granted to extend the time period as sought by the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Coldwell | Adviceline Injury Lawyers |
| For the Defendant | Ms N Wolski | Ligeti Partners |
HER HONOUR:
1 The 64 year old plaintiff applies under s23A of the Limitations of Actions Act (the Act)for an order extending the time within which to issue a proceeding against the defendant. The plaintiff alleges that he suffered a left knee injury on 9 April 2001 when he slipped on matting inside the men’s change rooms at the Sunshine Swimming Centre. Any claim for damages became statute barred six years thereafter on 9 April 2007.
2 The parties agree that time begins to run against the plaintiff from the date of accrual of the cause of action (9 April 2001). The plaintiff says the time runs until the plaintiff’s solicitor first put the defendant on notice as to the possibility of a common law action, by letter dated 15 December 2011, a delay of 10 years and 8 months. The defendant calculated the delay as lasting until the plaintiff issued a Writ against the defendant on 27 September 2013, a period of 12 years and 5 months.
The issues
3 The defendant says that for a number of reasons the plaintiff’s application should be dismissed. Firstly, the defendant says that the plaintiff’s reliability and credit are in issue. His affidavits are completely silent in relation to the period between 2001 and 2010 (when the plaintiff underwent his knee replacement surgery), and it is most unsatisfactory for information as to his symptoms, treatment and medication regime over this period to be elicited in cross-examination. His memory of these matters was very vague in cross-examination but much sharper in re-examination. He failed to mention in his affidavits that he consulted solicitors in relation to other injuries in 1997 and 2002. He admitted in cross-examination that he had lied to his doctor when seeking a disabled parking ticket. In cross-examination he resiled from the statement in paragraph 25 of his first affidavit to the effect that he had not played tennis since injuring his knee and stated that what he meant by this was since his operation. At paragraph 20 of his first affidavit dated 18 March 2013 he stated that he stopped work in December 2010.[1] His viva voce evidence was that he was in constant pain, could not bend his knee or walk very far and that his doctors say he cannot work. In cross-examination he agreed that in 2011 and 2012 he was receiving income protection insurance payments for severe PTSD caused by workplace issues, and that none of this was in his affidavits.
[1] CB 33
4 Secondly and most importantly, the defendant says that the length of the delay is unreasonable, the reasons for it are unacceptable and that as a result there will be significant prejudice to the defendant if the plaintiff’s application is successful.
5 In relation to the question of prejudice, the defendant relies on the affidavits of Mr Geoffrey Horne (the defendant’s solicitor); Mr Glen Lazzarotto (the duty manager of the Sunshine Leisure Centre on the day of the incident); and Ms Katherine Hall (the Centre Manager on the day of the incident and the current manager of the Centre). In relation to actual prejudice, the defendant says that Mr Lazarotto and Ms Hall have no independent recollection of the incident. Staff rosters from 2001 have not been retained and it is submitted these might have identified Council employees at the time who might have been potential witnesses. Further, the building which housed the men’s change rooms was demolished on 7 September 2007, about 5 months after the expiry of the limitation period. Had notification of the proposed claim been received prior to the expiry of the limitation period, the defendant would have been able to examine/inspect the men’s change rooms. There is no photographic evidence in existence of the state of the men’s change rooms in April 2001, although there are photographs taken of the site in 2003. The blue rubber mat on which the plaintiff alleges he slipped has been disposed of, and there is no matting currently in use in the Centre which dates back to April 2001. Copies of the daily duty checklist for 2001 in relation to cleaning of the men’s change room have not been retained.
6 In relation to general prejudice, the defendant relies on the inordinate delay of 12 years and 5 months from the date of the incident.
7 Finally, in relation to the extent to which the plaintiff acted promptly and reasonably once he knew that the defendant’s act or omission, to which his injury was attributable, might be capable at that time of giving rise to an action for damages[2] the defendant pointed to a number of matters. The plaintiff filled in an incident report on the day of the incident and a claim form in May 2001; his evidence was to the effect that he blamed the Swim centre for his fall. He was familiar with the claims process because on three earlier occasions he had made claims for medical expenses and lost wages. He had seen solicitors in relation to a 1997 shoulder injury, for which he made a claim for compensation and received medical treatment. His claim that he was not then advised of a 6 year limitation period in relation to claiming damages for work injuries should be treated with caution.
[2]Limitations of Actions Act 1958 (Vic) s 23A(3)(e)
The hearing
8 The plaintiff gave evidence and was extensively cross-examined. The parties tendered a joint courtbook and each party relied on some additional documents. I have read and considered all the material relied on by the parties.
9 After correcting the date in paragraph 28 of the first affidavit to 28 September 2010, the plaintiff adopted his affidavits sworn 18 and 21 March 2014. The first of the affidavits was sworn in support of his application under s134AB of the Accident Compensation Act1985 (Vic). It indicates that he was born in England, played professional soccer there and then graduated from university as a physical instructor and later as a special needs teacher. He worked in special needs schools and aged care facilities before migrating to Australia in 1996. He worked as a special needs instructor with Westnet from June 1998. On 9 April 2001 he was at the Sunshine Swim Centre with his clients, getting them in and out of the pool and then helping them with showering and changing. As he exited the changing room, he slipped on a plastic mat at the entrance of the change room. There was an oily substance which had come through the chequered holes in the mat. His right knee went out to the right and his left knee buckled and he fell on it. He had trouble with the left knee, underwent arthroscopy in August 2001 and a total knee replacement in December 2010. He suffered ongoing left knee stiffness and had further surgical manipulations performs in February and May 2011. His knee symptoms continued, and he was referred to pain management to Dr Blombery. He first instructed his solicitor, Andrea Tsalamndris in relation to this matter in September 2010. At paragraph 28 of his first affidavit, he stated:[3]
…I have not consulted lawyers prior to this time as I had not appreciated the serious incapacity which would arise from this left knee injury.
[3] CB 35
10 At paragraph 25 of his second affidavit, he notes that during his employment with Westnet, he suffered three work related injuries: the left knee injury on 9 April 2002; a second injury to his left hand in 2002 and a further injury to that hand in 2008.[4] He noted that between 2001 and 2010 his knee injury “progressed and degenerated to a point” that he required replacement surgery.[5] He first sought legal advice concerning his knee injury on 28 September 2010. This was the first time, he stated, that he was made aware of the 6 year limitation period for the bringing of common law claims for work injuries in Victoria. As his knee surgery was scheduled to occur in December, his solicitor advised him to await the stabilisation of his injury, which he did. He instructed his solicitor to commence a claim on his behalf on 2 September 2011. A claim for impairment benefits was lodged on 8 June 2012 and finalised on 20 February 2013 with a determination of 31% whole person impairment of the left knee together with scarring and complex regional pain syndrome. He attended a settlement conference in relation to his s.134AB application but the matter did not resolve. A writ was issued in the County Court on 27 September 2013.
[4] CB 25
[5] CB 26 para 9
11 At paragraph 15 of his second affidavit he stated that it was not until after his knee replacement surgery on 10 December 2010 that he came to realise how serious his injury was. He has continued to have left knee problems, undergone further surgical manipulations, been diagnosed with chronic regional pain syndrome and been on pain medication with only mild improvements.
12 In cross-examination, the plaintiff agreed that his affidavits did not mention a shoulder injury he suffered in 1997 with a previous employer, but said that his claim was for weekly payments at that time and he was never told by his then solicitor of any common law rights. Similarly, in relation to his finger injury, he said that he put in a claim for lost wages and medical expenses but was never advised of any limitation period. He was adamant that the first time he ever received any legal advice concerning his common law rights and the limitation period was in late 2010 when he first saw Ms Tsalamandris on 28 September 2010.
13 The plaintiff said that between 2001 and 2010 he put up with his knee pain and was able to carry out his hobbies and activities of daily living. He said that he only stopped playing tennis,[6] and doing the mopping, sweeping and vacuuming, in 2010 after his knee surgery. He said he did not give up gardening. He agreed that he has had trouble sleeping since 2001. He said that he had trouble going up stairs during flare ups of his left knee pain. He said he had been taking medication. He did not have any time off work due to his left knee between 2001 and 2010 apart from a few weeks after each arthroscopy (in August 2001 and December 2009). He was taking medication for his left knee pain continuously between 2001 and 2010. The medication changed depending on his reaction to it. At various times, he took Panadeine Forte, Endone, Oxycontin, Panadol Osteo, Voltaren, Norspan patches, Epilim or Ritalin, however most of the stronger medication, such as Endone, Norspan, Ritalin and Oxycontin, was prescribed by Dr Blombery after the knee surgery. He said he worked continuously until he was wrongly accused of a theft at work. From time to time he mentioned his left knee problems to his doctor during flare ups. The left problem knee recurred in a major way in May 2009 after it swelled up and remained inflamed, and kept giving way.
[6]I note the history given to Dr Paul Kierce on 24 February 2010 to the effect that he played competitive tennis until 3 years before the consultation and was still playing social doubles with similarly aged players once per week.
14 The plaintiff agreed that he had not worked at all since 2010. He said this was because he was in constant pain, could not bend his left knee, nor walk too far and his treating doctors (Dr Srinivasan, Mr Mills and Dr Blombery) determined that he could not work. He agreed that another reason for his stopping work, one which did not appear in his affidavits, was that he was made redundant by new management after falling out with them over his working conditions and being falsely accused of theft of a laptop. He suffered a post-traumatic stress disorder as a result of those matters, but said he never received any compensation payments for this condition.
15 In her affidavit, Ms Tsalamandris confirmed that she first met the plaintiff on 28 September 2010 and advised him that his injury of 9 April 2001 was statute barred but that it was possible to seek an extension of time for the late lodgement of a common law claim. She advised him to have the upcoming knee surgery and await stabilisation of his condition before getting further advice about proceeding with a possible claim. He had the knee replacement surgery in December 2010. She met with him again on 2 September 2011 and he told her his condition was stabilised. She recommended that they gather medical material in relation to his knee injury and advise him further. On 15 December 2011 she wrote to the Sunshine Swim and Leisure Centre informing it of this potential common law claim. Her affidavit notes the ensuing relevant dates: an Impairment Benefits determination was made on 10 October 2012 accepting liability for the left knee injury with scarring but rejecting liability for the claimed injury of complex regional pain syndrome. On 20 February 2013, after the plaintiff disputed the rejection, an Amended Impairment Benefits determination was provided which included the claim for chronic regional pain syndrome and determined a 31% whole person impairment.
Legal principles
16 Section 23A of the Act empowers a Court to grant an extension of time in which to issue proceedings where it decides that it is just and reasonable to do so. Section 23A(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 sub-paragraphs (a) – (f).
17 The parties agree that only sub-paragraphs (a), (b), (e), and (f) have relevance to this application. Respectively, these sub-paragraphs concern: the length of, and reasons for the delay on the part of the plaintiff; the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant; the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which his injury was attributable, might be capable at that time of giving rise to an action for damages; and, finally, 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. These considerations are not to be weighed against each other; rather, the Court must endeavour to synthesis the competing considerations in arriving at a conclusion that takes account of all of them[7]
[7]Tsiadis v. Patterson [2001] VSCA 138 (at para 33)
18 The plaintiff bears the onus, which is “fairly heavy”[8] of establishing that it is just and reasonable to order that the limitation period be extended.[9] If the defendant establishes by evidence that it may suffer prejudice as a result of the grant of an extension of time, then it is for the plaintiff to demonstrate that the evidence does not demonstrate prejudice[10] Relevant prejudice to a defendant is that which has actually occurred by reason of the relevant delay, as well as prima facie or general prejudice to a defendant who would otherwise have the benefit of the limitation period. Whilst that prejudice cannot readily be identified, generally where there is delay, the quality of justice available to the defendant deteriorates.
[8]Richards v State of Victoria & Ors [2001] VSC 52
[9]Bell v SPC Ltd [1998] VR 123; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
[10]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547
19 Mere delay, when it is inordinate, may be taken as evidence of prejudice.[11] The longer the delay in commencing proceedings the more likely there will be prejudice from lost witnesses or fading recollections.[12]
[11] Ibid
[12] Ibid at 551
Findings and reasons
20 As this case involves gateway provisions under the Accident Compensation Act 1985 (Vic), I consider that it is appropriate to consider the delay from the date of the incident until 15 December 2011 when the defendant first received notice of the possibility of a common law claim being made.
21 I note that Mr McDermott was extensively cross-examined. He accepted that he was mistaken in his first affidavit, as to the date of his first consultation with his solicitor about this injury. At times, when pressed, he was truculent and argumentative, but I do not consider this to bear on his credibility.
22 In relation to the reasons for the delay, I accept the plaintiff’s uncontradicted evidence that, prior to receiving advice from his current solicitor in relation to his common law rights flowing from the incident on 9 April 2001, he had never received advice about common law rights nor about limitation periods. I accept his evidence that in relation to earlier injuries, the legal advice he received was limited to issues concerning weekly payments and/or payment of medical and like expenses. His solicitor’s affidavit clarifies the first consultation date in relation to the relevant knee injury as being 28 September 2010. Even if the plaintiff held a belief, as at April 2001, that the Centre was responsible for his injury, I do not consider that such a belief in any way establishes knowledge of common law entitlements.
23 Secondly, I accept the plaintiff’s evidence that he was unaware of the seriousness of his left knee injury until after the knee replacement surgery in December 2010. On any view, that surgery was the most significant event in the narrative relating to the left knee. The attendances on his doctor after April 2001 reveal that while there are some attendances in that year concerning the left knee, there are then no documented complaints of knee pain until 2005, when there was a complaint about the left knee being worse and the doctor referred him to Mr Mills. However, there is no evidence that he saw Mr Mills at that time and there were no further complaints to his doctor in relation to the left knee until May 2009. There was minimal physiotherapy between 2001 and 2010 except at some stage after the debridement in August 2001 when he was treated at the Sunbury Physiotherapy clinic. There was an arthroscopy performed by Mr Mills in December 2009, some further attendances until February 2010, and, from December 2010, there are increasing complaints of pain. This narrative is confirmed by the report of his treating doctor, Dr Srinivasan, dated 28 January 2012, who notes that the plaintiff had an arthroscopy in 2001, complained of worsened knee pain in August 2005, complained of his knee collapsing in late May 2009, and was referred to Mr Mills who performed a second arthroscopy in late 2009. After his surgery, Dr Srinivasan noted that he had several manipulations under anaesthetic and had developed “quite significant complex regional pain syndrome” for which he was being treated by Dr Blombery with heavy narcotic medication.[13] Whilst the plaintiff’s affidavits omit much detail in relation to these attendances, his evidence in those affidavits to the effect that he was able to work full time until 2010, that he was not taking heavy painkillers, that his left knee bothered him in 2005 and then worsened in the period leading up to his visit to Mr Mills in 2009, is consistent with the medical records and report of Dr Srinivasan and with the histories given to various doctors. He was still able to play tennis up to the time of his knee replacement surgery.
[13] Exhibit 5
24 In relation to the steps taken by the plaintiff once he realised the seriousness of his condition, it is clear that his solicitor was acting in conformity with the requirements of s.134AB of the Accident Compensation Act1985 (Vic) in investigating his condition and establishing its permanence prior to the issue of any Originating Motion. I consider that the plaintiff’s solicitor acted responsibly, promptly and reasonably in giving notice to the defendant some 12 months after the knee replacement surgery.
25 I accept that there is potential prejudice to the defendant given the passage of time since April 2001. However, I am not satisfied that there is any actual prejudice, notwithstanding the affidavits of Mr Lazarotto and Ms Hall. While there are no actual eyewitnesses to the event, both Ms Hall and Mr Lazaretto are available and were intimately connected to the Leisure Centre’s response and the circumstances surrounding the incident. In fact Ms Hall has a surprisingly good recollection of the accident location and the cleaning system used at the time. Furthermore, all critical contemporaneous documentation regarding the incident has been discovered by the defendants, including the incident report dated 9 April 2001 and the defendant’s accident/incident register from November 2000 to December 2002. While the demolition in 2007 of the change room where the incident occurred is unfortunate there is a colour photograph of the scene taken in 2003.
Conclusion
26 For the reasons outlined above, I am satisfied that it is just and reasonable to extend the time period as sought by the plaintiff and will invite the parties to draft the appropriate order. I reserve the question of costs.
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