Morse v Diagnostic Services Pty Ltd
[2001] TASSC 44
•12 April 2001
[2001] TASSC 44
CITATION: Morse v Diagnostic Services Pty Ltd [2001] TASSC 44
PARTIES: MORSE, Pamela
v
DIAGNOSTIC SERVICES PTY LTD
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 23/2000
DELIVERED ON: 12 April 2001
DELIVERED AT: Hobart
HEARING DATE: 15 December 2000 and 11 April 2001
JUDGMENT OF: Master Holt
CATCHWORDS:
Limitation of Actions - Extension of time - Arguable case - Explanation for delay - Prejudice - Exercise of discretion.
Workers Rehabilitation and Compensation Act1988 (Tas), s135.
Palmdale Insurance Co (In Liquidation) v L Grollo & Co Pty Ltd & Ors [1986] VR 408; Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497; Butt v Comalco Aluminium (Bell Bay) Ltd B9/1996; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Sophron v The Nominal Defendant (1957) 96 CLR 469; Knight v Smith [1975] Tas SR 83; Glover v Southern Cross Homes (Tasmania) Inc 111/1997; Bluett v Wedd Cannon Pty Ltd [1999] TASSC 23; Glover v Southern Cross Homes (Tasmania) Inc 111/1997 and Adams v Ascot Iron Foundry (1968) 72 SR(NSW) 120, referred to.
Aust Dig Limitation of Actions [55]
REPRESENTATION:
Counsel:
Applicant: B R McTaggart
Respondent: P W Tree
Solicitors:
Appellant: Jennings Elliott
Respondent: C N Dockray
Judgment Number: [2001] TASSC 44
Number of paragraphs: 22
Serial No 44/2001
File No 23/2000
PAMELA MORSE v DIAGNOSTIC SERVICES PTY LTD
REASONS FOR JUDGMENT MASTER HOLT
12 April 2001
The application
By writ filed 14 January 2000, the plaintiff commenced proceedings against her former employer claiming damages for personal injuries suffered by her in the course of her employment "on and from the 14th day of January 1994". The plaintiff received workers compensation payments under the Workers Rehabilitation and Compensation Act 1988 ("the Act"). Pursuant to the Act, s135, the limitation period for the commencement of the action was accordingly three years from the date of the injury, subject to the power of the court to extend the time for a further period not exceeding three years. By application filed 5 May 2000 and served on the defendant employer, the plaintiff has applied for an extension of time for the commencement of proceedings to the date of the issue of the writ. The discretion to grant an extension of time under the Act is to be exercised in the same way as the discretion under the Limitation Act 1974, s5(3), is to be exercised, namely in accordance with the justice of the case, Woolley v Australian Newsprint Mills Ltd 85/1997; Butt v Comalco Aluminium (Bell Bay) Ltd B9/1996.
The plaintiff's claim
In support of the application, several affidavits were read into evidence including two affidavits sworn by the plaintiff. The plaintiff was cross-examined. Her account of events giving rise to her claim is as follows. In August 1990 she commenced employment with the defendant as a cyto-technician. In about November 1993, the defendant introduced corral-style work stations for each cyto-technician. Each work station was equipped with a chair, desk, microscope, computer monitor and computer keyboard. The plaintiff was required to examine slides containing a specimen under a microscope and to make appropriate notations into the computer system. In examining each slide, she had to tilt her head forward to look into the eye piece of the microscope and manipulate the microscope stage, using an adjustment knob on the right and adjust the focus using a knob on the left. Upon completion of the examination of each slide, the plaintiff would lean backwards in her chair so that she could see her computer monitor which was located on an elevated shelf to her right. While leaning back and looking at the monitor, she would extend her right arm to input data using the computer keyboard located on the right hand side of her desk. The plaintiff worked four days per week from 9am to 2.30pm (plus some occasional overtime). Her day was punctuated by a 15 minute morning tea break and a 30 minute lunch break. She said that she felt under pressure to work quickly. She said that the stage adjustment knob on the right hand side of the microscope was stiff and difficult to operate and that despite complaint, it was never repaired. In January 1994, the symptoms commenced. Initially she suffered mild intermittent pain in her right shoulder. By September 1994, her symptoms were significant. In a workers compensation claim form signed 27 September 1994, the plaintiff said:
"I started having right shoulder pain in January '94 after using a computer keyboard which was introduced as part of my work. I then developed tennis elbow - 1st in one arm, then the other. I then developed a very stiff and sore neck."
The plaintiff said in her affidavit sworn 19 April 2000:
"25I continued on at work performing the same duties at the microscope and gradually my symptoms became worse and extended from the right shoulder into the right arm. Gradually the symptoms worsened to the degree that my right shoulder felt like it was frozen and the symptoms started to extend from my right arm and elbow to my left arm and elbow. This gradually occurred from when I first started to experience the symptoms until July of 1994.
26I also recall talking to Jane Twin who was the pathologist in charge of cytology at the time that I was having pain in both my elbows and my arms seemed not to be working any more. I recall telling her at a work meeting in late 1994.
27I kept working at the microscope until July 1994. By that time I had constant pain in both my elbows, no strength in my arms to the degree that I was unable to lift a coffee with one hand and had to use two hands. I recall that I initially went off for 2 - 3 weeks.
28I also experienced pain in my neck and a spasm going across the back of my neck.
29At this time I put in a workers compensation claim with Diagnostic Services and received workers compensation for the 2 - 3 weeks I had off work.
30I returned to work and continued to work at the microscope. I worked on and off until finally ceasing work in November of 1998. I stopped working in November 1998 due to my on going symptoms of pain and upon following my doctor's advice to stop performing that work.
31I continue to have symptoms including numb hands, a constant headache behind the right eye, loss of strength in both my arms, pain in my elbows and pain in my neck. I consult Dr David Humphries at the moment in respect of these symptoms and take anti-inflammatory medication, have massage and physiotherapy and injections into my neck in order to assist with my headaches."
In cross-examination, the plaintiff indicated that the reference in her affidavit to "July 1994" was mistaken. She said in respect of July 1994 "my symptoms were bearable at that stage, it was only one arm". She thought that the symptoms described in par27 of her affidavit had not developed until about the time she completed the workers compensation claim form in September 1994.
An affidavit sworn by Dr David Humphries on 16 January 2001 was read into evidence. Its contents were not contested and included the following:
"3 Postural overuse is a syndrome namely, a name used to describe a cluster of symptoms. The epicondylitis is a specific objective finding of swelling at the epicondyle. Epicondylitis may be a component of a postural overuse syndrome. The generalised posterior disc bulge is also another objective finding which may or may not be causative of symptoms. That is, that the disc bulge may be related simply to the aging process or may be objective evidence of injury. It may or may not also be symptomatic. There is no way to tell.
4The nature of the activities which cause an overuse syndrome are the sustained loading of dynamic muscles. That is, muscles which the body uses normally in a dynamic sense rather than a static sense. There can be an overloading of the dynamic muscles of both the neck and also the arms and shoulder girdles. For example, if the arms are repetitively held out in front, the muscles of the shoulder girdle are not designed to support the arms for prolonged periods and this results in static loading of the arm muscles. Repeated static loading of muscles can lead to symptoms and after a prolonged period a fixed outcome. As a guide, if significant symptoms are present for a period of 12 months, I consider that the outcome is probably fixed and that there is only about a 5% chance thereafter of improvement.
5Mrs Morse's history of developing pain in her shoulder in January 1994 which initially was mild and would come and go and then a gradual increase with symptoms extending to the right shoulder and into the right arm and elbow and left arm and elbow in the neck by September 1994 are consistent with the onset of an overuse syndrome and supported by objective evidence of swelling at the epicondyle. It is not possible to say when actual injury occurs. It is the repeated static loading of the muscles which ultimately leads to a fixed outcome.
6I have read a copy of the Affidavit of Mark Dohrmann sworn on 16 May 2000 in this matter.
7I refer to my first Affidavit wherein I expressed the opinion that aspects of Mrs Morse's work at the microscope which caused her condition were the time spent without a break in front of the microscope and the ergonomic surrounding her use of the microscope including the operation of the knob for moving the stage of the microscope which I understand was stiff.
8The ergonomics surrounding Mrs Morse's use of the microscope to which I have referred are the same as those referred to by Mr Dohrmann in his Affidavit namely the positioning of the microscope, the location of the monitor and the location of the keyboard.
9It is my opinion that the time spent without a break in front of the microscope, the operation of the knob of the microscope, the position Mrs Morse had to adopt when using the microscope, the location of the monitor and keyboard are all activities which caused static loading of dynamic muscles and have ultimately caused Mrs Morse to suffer the overuse syndrome."
The affidavit of Mark Dohrmann, an ergonomist who has worked in occupational health and safety since 1976, sworn 16 May 2000, states that the risk of injury to the plaintiff could have been reduced had the employer taken certain action, including amongst other things adopting a work then rest schedule involving maximum intervals of work of 20 minutes, followed by breaks during which the employee could undertake a stretching exercise regime as advised by a physiotherapist and setting up the work station so that equipment was more conveniently useable and accessible.
A viable case
On behalf of the defendant, it was submitted that insufficient evidence had been adduced to show that the plaintiff had a viable case. The plaintiff was unable to say whether her symptoms first commenced before or after 14 January 1994. It was submitted that this being so, the plaintiff could not satisfy the court at this stage that she had a case which could not successfully be met by a limitations argument that her injuries occurred within six years of the date of the issue of the writ. I am not prepared to find that the plaintiff's case is hopeless on that ground. It is for the defendant to plead and prove the time bar. The defendant has adduced no evidence that the injuries complained of occurred prior to 14 January 1994. The evidence of Dr Humphries is that "it is not possible to say when actual injury occurs". It would be entirely premature for me to assess the merits of a foreshadowed six year limitation defence prior to pleadings on the limited materials available at this stage. Palmdale Insurance Co (In Liquidation) v L Grollo & Co Pty Ltd & Ors [1986] VR 408. It was also submitted that as the endorsement of claim on the writ only referred to personal injuries suffered "on and from the 14th day of January 1994" and accordingly the plaintiff, in order to have a chance of success at the trial, would need to prove that her injuries did not predate 14 January 1994. The plaintiff will not be able to recover damages for any injury sustained prior to 14 January 1994, or in respect of any natural progression of such injury. She will, however, be able to recover for any injury sustained or aggravated on or after 14 January 1994 if such injury or aggravation was caused by a wrong committed by the defendant on or after that date, Adams v Ascot Iron Foundry (1968) 72 SR(NSW) 120 at 124 and 125. The initial symptom in January 1994, on the evidence before me, was mild intermittent pain in the right shoulder. Later, other symptoms developed, for example the epicondylitis firstly by July 1994 in one elbow and by September 1994 in the other elbow. According to Dr Humphries, the epicondylitis may have been caused by postural problems in the plaintiff's work environment. The plaintiff's work posture, on the information before me, did not change in any material way in the several months following January 1994. There is nothing in the evidence from which I could conclude that, for example, the epicondylitis was the natural progression of an injury sustained prior to 14 January 1994 and was not aggravated by events since January 1994. On the face of the materials which I have, the symptoms in the elbows are the result of swelling at the epicondyle and those symptoms commenced after January 1994. Although it is preferable on an application for an extension of time for an applicant to establish a prima facie case it is not necessary. If the plaintiff's proposed action is obviously hopeless, an extension of time will not be granted. Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497 at 508. If the proposed action is not obviously hopeless but is speculative in the sense that the plaintiff hopes, if allowed to proceed, to obtain evidence of sufficient facts to make the action viable, it does not necessarily follow that the application will be refused. The speculative nature of the action is simply a matter to be taken into account in considering whether or not to refuse the application. Butt v Comalco Aluminium (Bell Bay) Ltd (supra). I do not consider that the plaintiff's prospects of proving that she suffered at least some injury on or after 14 January 1994 are hopeless, nor do I consider that her chances of doing so are so speculative or remote so as to afford strong grounds for refusing the application.
Leaving aside the defendant's point about the cause of action possibly having accrued prior to the date endorsed on the writ, namely 14 January 1994, I am satisfied on the plaintiff's evidence that she has a prima facie case. There is evidence that she suffered injury because in the course of her work she adopted repeatedly prolonged awkward postures as a result of the layout of her work station. It is arguable that it was foreseeable that prolonged poor posture could cause injury and there is evidence that changes to the work station would have improved the plaintiff's posture and evidence that the risk of injury would have been reduced if regular rest and exercise periods were incorporated into the plaintiff's daily work routine. The plaintiff said that she did not take frequent breaks from her work station because she "felt pressure to process the slides as quickly as I could as there was a mountain of slides to be viewed" and "we were short staffed for the number of slides that had to be done". The plaintiff's action is viable.
The explanation for delay
In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553 and 554, McHugh J said:
"The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule of the welfare of the state is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension."
Fault on the part of the claimant "must be an element affecting the justice of extending the time …". Sophron v The Nominal Defendant (1957) 96 CLR 469 at 475. The relevant period to be considered commences with the accrual of the cause of action. The blameworthiness, if any, of the claimant, although relevant and counting against the granting of the application, is not necessarily fatal to it. Knight v Smith [1975] Tas SR 83. It is simply a factor to be taken into account. The degree to which fault counts against the claimant would be greater in a case where the claimant deliberately delays for a long period of time than where a short delay occurs through careless oversight.
Counsel for the defendant submits that the delay was lengthy and deliberate. At all material times, the plaintiff knew that an action for damages could be brought where an injury was suffered as a result of the fault of another. In 1991 she had sued her orthopaedic surgeon alleging injury as a result of the negligent undertaking of a surgical procedure. The plaintiff said under cross-examination, "I always thought there was fault on the part of my employer". By September 1994, according to her workers compensation claim form referred to earlier, she had "neck, bilateral shoulder and elbow pain". Her symptoms were sufficient to cause her to make a workers compensation claim and take some time off work. She remained in employment with the defendant until November 1998. Her reason for not serving her employer whilst she remained an employee was explained by her in cross-examination as follows:
"I was hoping that I could still work at Hobart Pathology, I was hoping to continue my career there but I was worried that if I did commence proceedings I wouldn't be able to work there.
…
I understood that the writ might have been a personal thing from me against Hobart Pathology or my employers whereas the workers compensation thing was just me being looked after until I got better or whatever or I was hoping I might have another job at Hobart Pathology that I could go on with."
In November 1997, the applicant consulted her solicitor about another matter and during the course of that consultation she mentioned her work-related injuries. She said in her affidavit, at par33:
"From mid 1992 I consulted Mr Docking as my lawyer. I recall that I had an appointment with Mr Docking regarding another matter. I mentioned to Mr Docking in the course of that appointment about my workers compensation problem and the injuries to my arms and neck. I recall that Mr Docking told me that I should lodge a writ in the Supreme Court within three years of the injury. As a result, I asked Mr Docking to file the writ. I believed this appointment took place in early November 1997. At no time was I informed by Mr Docking that I was out of time at that point for the filing of the writ. I did not understand that I may have been out of time at this point because it did not seem to me at the time that more than three years had passed from when my symptoms had started. My symptoms had started as mild, intermittent symptoms which gradually built up and increased in severity over a period of time."
The plaintiff went on to say that she received advice that a writ could be filed and service deferred until she made a decision as to whether or not she wished to proceed with the action. On 14 November 1997, a writ was issued containing an endorsement of claim which did not identify the date of the injury. The endorsement was as follows:
"The plaintiff's claim is for damages for present [sic] injuries caused by the negligence of the defendant is [sic] servants and agents at Hobart in Tasmania."
The writ was never served. The plaintiff was unaware of any time limit for service of the writ. She failed to make enquiries as to any time limit for service notwithstanding that in her evidence she agreed that she knew that any claim for workers compensation needed to be commenced promptly following injury, knew that there was a time limit for the institution of common law proceedings of three years and knew that some time limit must have applied to service as disclosed by the following extract from her cross-examination:
"You could leave it till you were 65? … I didn't think I could leave it that long but I wasn't aware of a specific time limit."
The plaintiff gave evidence, which was not contested, that prior to November 1997 she was unaware that there was a three year time limit for the commencement of proceedings. However, her evidence did not disclose any attention being given by her to when the three year period had commenced after she spoke to Mr Docking in November 1997. By September 1994, her symptoms occasioned time off work and a workers compensation claim. The symptoms disclosed in the claim form do not vary significantly from the symptoms now complained of. By June 1997, she had been referred by her general practitioner, Dr Jones (who she identified as her treating doctor on the 1994 workers compensation claim form), to physician Dr Humphries. Although her concern about jeopardising her employment would explain her failure to obtain information about a starting point for the injuries by asking her employer for her workers compensation documents, no explanation has been provided as to why, after being told of the three year limitation period in November 1997, she did not communicate with her doctors or arrange for her solicitor to do so, so that appropriate attention could be given to the matter of time limitations. Even though she gave instructions for the issue of a writ in November 1997, the plaintiff had still not decided at that time whether she wished to pursue action against her employer and so took no interest in investigating the matter of time.
In November 1998, the plaintiff resigned her employment with the defendant and so became freed of any concern that the institution or service of proceedings on the defendant would jeopardise her employment. She did not instruct her solicitor to serve the writ. In fact, she did not attempt to contact him again until about October 1999. By then he had retired from practice and the plaintiff engaged the services of her present solicitors. In January 2000, she learned from those solicitors that the writ issued by Mr Docking had become stale and could not be served and so issued instructions for the commencement of the present action. Her explanation for not progressing the claim between November 1998 and October 1999 is lacking in detail. Referring to the proceedings issued with the assistance of solicitor Mr Docking in November 1997, the transcript relating to the plaintiff's failure to pursue her claim is as follows:
"So in effect you had deliberately kept those proceedings from the employer for two years as at October 1999? … Yes, but it wasn't intentional, it was something that I had to just do when I could mentally cope with it.
Master: Sorry that's a bit confusing. As at October 1999 had you deliberately kept the proceedings from your employer? … Yes, but it wasn't intentional, you can see the two don't go together?
Witness: Oh yes. Could I say that I was so depressed, I've been on anti-depressants and whatever and I couldn't face doing something as big as that until that stage."
The plaintiff said that she left her employment in November 1998 on medical advice because of her ongoing symptoms. She always thought that her symptoms were attributable to the defendant's fault and that she had a cause of action for damages. Her depression was not such as to be disabling. In November 1998 (the same month in which she resigned her employment with the defendant), the plaintiff obtained part time employment "as an educator at Sexual Health". In March 1999 she left that employment and commenced employment as a science teacher, employment she still held when she gave evidence on 15 December 2000. She knew that an action for damages for personal injuries should be commenced within three years of the injury; she knew or ought upon reflection have remembered that she had not given any careful attention to when the three year period commenced when she instructed her solicitor to issue the writ in November 1997 and she did not know what, if any, time limits applied to the service of that writ. In these circumstances, despite any depression and employment commitments in her new occupation, she ought have given attention to the claim and made a decision in respect of it sooner.
It was submitted by counsel for the defendant that the plaintiff was also at fault for the delay between October 1999 and the date of the issue of the current writ, being 14 January 2000. The defendant complains that during this period, the plaintiff proceeded at a leisurely pace. The affidavit of the plaintiff's solicitor, Mr Bruce McTaggart, shows that the plaintiff contacted him on 2 November 1999 and that thereafter he took steps to obtain the plaintiff's file. By 1 December 1999 he had the file and wrote to the plaintiff, telling her that he would review the file "over the following two weeks". On 5 January 2000 he wrote to the plaintiff saying that he had considered the file and invited her to make an appointment. An appointment was made for 12 January 2000, which the plaintiff kept. The writ issued on 14 January 2000. Instead of serving the writ, Mr McTaggart advised the defendant's insurers by letter dated 24 January 2000 that proceedings for damages were in contemplation. The insurer's solicitors responded by letter dated 2 February 2000 advising that the matter was being investigated. By letter dated 4 April 2000 from the defendant's solicitors, Mr McTaggart was advised that the time provisions contained in the Act, s135, would be relied upon. The application for an extension of time was filed on 5 May 2000. There was no complaint about the level of diligence applied to the matter by Mr McTaggart, nor do I think that any such complaint could reasonably have been made. There was nothing that the plaintiff should have done to expedite the matter other than what was done on her behalf after she first saw Mr McTaggart on 2 November 1999.
Accordingly, the period in respect of which the blame for delay might be attributed to the plaintiff is the period between September 1994 (when the plaintiff's symptoms had become significant) and October 1999 (when she attempted to contact her former solicitor, Mr Docking, presumably to make a decision as to whether or not to pursue the claim). Up until November 1997, the plaintiff was unaware of time limits, was apparently not out of pocket and was apparently coping with her employment. Her view that making a claim against the defendant might affect her employment may well have been misguided, but it was understandable. It is a satisfactory explanation for delay for a person ignorant of time limits to say that there was no severe disablement; no financial loss and a desire and ability to get on with work without contemplating legal action. Glover v Southern Cross Homes (Tasmania) Inc 111/1997 and Bluett v Wedd Cannon Pty Ltd [1999] TASSC 23. By November 1997, however, the plaintiff was aware of the three year time limit and although she instructed her then solicitor to file a writ at that time, she remained disinterested in pursuing a claim. She made no effort to ascertain whether or not the November 1997 writ was filed in time; she instructed her solicitor not to serve the writ and made no enquiry as to what, if any, time limit applied to service. Her disinterest in the claim, although understandable because of her desire to get on with her work without the spectre of souring relations with her employer by the service of a writ, was not responsible. She had occasion in November 1997 to give proper attention to her potential claim and make a decision as to whether or not she wished to pursue it. Upon advice being received that the three year limitation period applied, she ought to have realised that the matter needed to be given detailed, prompt attention. Her failure to do so is not without blame. Upon her resignation from her employment with the defendant in November 1998, no reason existed for continued indecision, but the delay continued until October 1999. In considering the ultimate question of whether or not the plaintiff has discharged the positive burden of demonstrating that the justice of the case requires the extension, the plaintiff's blameworthiness for the inactivity between November 1997 and October 1999 will count against her.
In saying that the plaintiff's inactivity will count against her, I am conscious of the Act, s136, which provides that where a worker has accepted payments of compensation, the employer may, not earlier than 12 months after the date of the payment, by notice, require the worker to institute any action for damages within 42 days of the service of the notice and if no action is instituted within that 42 day period, the employer may apply to the court for an order fixing the time for the commencement of proceedings. Section 136 enables the court upon application, to abridge the limitation periods fixed by s135. An employer, however, although contemplating litigation, understandably will often see no reason to precipitate an action which, if sleeping dogs are left to lie, may never eventuate. It does not follow that an employer who fails to take action under s136 condones or acquiesces in delay by a plaintiff in commencing proceedings when it is not obvious that proceedings will be commenced. On behalf of the defendant, the affidavit of its director, Mark Prentice, was read into evidence (with some parts excluded). The evidence of Mr Prentice conveys the clear impression that he did not consider that the plaintiff's injuries to be the result of the fault of the defendant. He referred to the work station complained of by the plaintiff as being established in consultation with cyto-technologists. He was of the view that the plaintiff's awkward posture at work was due to a pre-existing knee injury. He disputed the assertion that the staging knob on the plaintiff's microscope was difficult to operate. He thought the computer could be operated from a comfortable position and he said that as early as 1992 he had advised the plaintiff "to take breaks from her microscope as frequently as necessary". I accept the evidence of Mr Prentice insofar as it gives rise to the inference that it was not obvious to the defendant that the plaintiff's injuries resulted from the defendant's fault. Because it was not obvious to the defendant that proceedings were likely to be instituted, I do not regard the defendant's failure to take action under s136 as condoning delay and so I do not consider that the weight to be attached to the plaintiff's prolonged inactivity in the matter should be reduced in this case because of the existence of s136.
Prejudice
Consideration of whether or not delay will prejudice the defendant if an extension of time is granted is a matter of great significance. In Brisbane South Regional Health Authority v Taylor (supra) at 551, McHugh J said:
""The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates'. (R v Lawrence [1982] AC 510 at 517 per Lord Hailsham of St Marylebone LC.) Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo (1972) 407 US 514 at 532, 'what has been forgotten can rarely be shown'. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose."
In their joint judgment, Toohey J and Gummow J said at 547:
"Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission of Victoria [1964] VR 788 at 793 in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465 at 474:
'It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.'"
Here, the defendant does not assert any specific identifiable prejudice occasioned by delay. He conceded that "this isn't a case where there is missing evidence, or there's dead witnesses or anything of that kind". The concession, on the evidence presented at the hearing, appears to me to have been reasonable. The defendant, in the course of its evidence, adduced photographs of the work stations in question, or similar work stations. Mr Prentice, a director of the defendant company, remains available as a witness and it appears from his affidavit that he has a detailed knowledge of the work environment and staff duties at all relevant times. He appears to have been familiar with the complaints made by the plaintiff from time to time about her symptoms. Although the defendant was entitled, if it wished, to have the plaintiff medically examined pursuant to the Evidence Act 1910, s25, there is no evidence that because of delay the defendant would be disadvantaged in any attempt to obtain medical evidence excluding the work environment as the source of the symptoms, or tending to demonstrate that the injuries complained of occurred outside the six year limitation period.
Nonetheless, the possibility of the existence of unidentifiable prejudice as explained by McHugh J in Brisbane South Regional Health Authority v Taylor (supra) must be considered. The delay here is great, the writ issuing many years after the cause of action is alleged to have accrued. Having regard to the fact that there appears to be ample evidence readily available to the defendant about the work environment and the plaintiff's complaints from time to time and the absence of any evidence from a medical practitioner that the effluxion of time has materially affected the thorough and proper investigation of whether or not the plaintiff's symptoms are to be attributed to her former work environment and the date of injury, I do not consider that the chances of a fair trial, in the present circumstances, have become unlikely. I will take into account, however, that because of the lengthy period of delay there will be some general deterioration in the quality of justice upon the trial of the claim.
The plaintiff, although recollecting that her symptoms first commenced some time in January 1994, was unable to identify the date. The writ which issued on 14 January 2000 identified the period "on and from the 14th day of January 1994" as the period during which the plaintiff acquired the symptoms in respect of which she seeks damages. Counsel for the defendant submitted:
"But secondly, it's also the prejudice which comes about now, because of the bifurcation of the month of January, which is of course, the critical month. And whether it be that the onus is on the defendant at trial to prove that the damage occurred outside the six year period or not, the reality is, that the employer is going to be unable to - almost likely unable to advance the matter much beyond the plaintiff's own evidence, which is that she does not know when symptoms accrued in the month of January, save to say that it was in January. That stands to substantially prejudice the defendant, or the would be defendant, because to put it simply, it cannot and will not ever know, whether prior to 14 January 1997, the entirety of the cause of action … ."
I agree that the defendant may be disadvantaged in attempting to prove that some or all of the plaintiff's injuries occurred prior to 14 January 1994, but the uncontested evidence is that the symptoms commenced some time in January 1994. The question is whether or not delay has caused prejudice to the defendant. If the delay had been only a few weeks shorter, the possibility of the defendant arguing the six year limitation period would not even have arisen. Delay has enhanced, not prejudiced, the defendant's ability to rely upon a defence of limitation.
Conclusion
As I have indicated, the plaintiff has a viable case and, in my opinion, notwithstanding the lengthy period of delay, I am satisfied from the evidence which has been presented that the chances of a fair trial have not been lost. Notwithstanding that because of delay the quality of justice at the trial would be adversely affected and having regard to the rationales for the enactment of limitation periods referred to in Brisbane South Regional Health Authority v Taylor (supra), I would have little hesitation in granting the extension sought but for my finding that the plaintiff is to be held accountable for the lengthy period of delay between November 1997 and October 1999.
The plaintiff carries the positive burden of demonstrating that the justice of the case requires the grant of the extension sought. Her role in the delay is a factor of significant weight but is not necessarily determinative. The position was considered by Neasey J in Knight v Smith (supra) at 91, where he said:
"Principally, the appellant's argument concentrated upon attention upon the following passage from the judgment of Barwick CJ:
'No doubt this extension of time is not as of course. Some acceptable explanation for the failure of the appellant to sue in time must be given before the court is required to consider the substantial question whether it would be just to grant the extension. The door, as it were, must first be opened. No hard and fast rule can be stated defining what may be an acceptable explanation. But at least, in my opinion, it should be held that it is the litigant's failure to sue in time which must be satisfactorily explained. However much in some fields the client must suffer for his solicitor's acts done on his behalf, in this field the litigant is not necessarily, in my opinion, to be saddled with responsibility for all that his solicitor does or does not do'. (Hall v Nominal Defendant (1966) 117 CLR 423, at p 435.)
It was sought to argue from his Honour's judgment, not only that the learned Chief Justice was referring to a two-stage process of thought, but that he was also prescribing an ineluctable order of priority. That is to say, it was submitted that the judge must first consider the explanation for delay, and then only if he finds that explanation acceptable may he properly proceed to consider the substantial question whether it would be just to extend time.
Both those submissions are in my opinion untenable. … In my view, his Honour did not intend to lay down as general rules either of the two propositions submitted."
Notwithstanding that the plaintiff's fault resulted in a significant period of delay, I take the view attaching in this case the greatest weight to the apparent lack of any prejudice caused by delay that the justice of the case requires the grant of the extension.
Order
The time within which the plaintiff may commence an action against the defendant for damages for personal injuries suffered by her in the course of her employment with the defendant on and since 14 January 1994 will be extended to the date of the issue of the writ, namely 14 January 2000.
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