Nikitin v Fasco Australia Pty Ltd
[2017] VCC 494
•5 May 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-16-03994
| NIKOLAI NIKITIN | Plaintiff |
| v | |
| FASCO AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 and 21 March 2017 | |
DATE OF JUDGMENT: | 5 May 2017 | |
CASE MAY BE CITED AS: | Nikitin v Fasco Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 494 | |
REASONS FOR JUDGMENT
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Subject:LIMITATION OF ACTIONS
Catchwords: Negligence – personal injury in course of employment – whether limitation period should be extended – prejudice resulting from delay – documents not retained – 15 year delay -
Legislation Cited: Accident Compensation Act 1985; Limitation of Actions Act 1958 (Vic);
Cases Cited:Prince Alfred College Incorporated v ADC [2016] HCA 37; Tsiadis v Petterson [2001] VSCA 138; Repco v Scardamaglia [1996] 1 VR 7; Welsh v Adecco Industrial Pty Ltd & Ors [2017] VSC 44
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Ms S A Lean | Zaparas Lawyers |
| For the Defendant | Mr S A O’Meara QC with Mr R Kumar | Wisewould Mahony |
HER HONOUR:
Preliminary
1 The plaintiff suffered injury during the course of his employment with the defendant, as a result of an accident on 3 October 2001. The plaintiff alleges that he was carrying a heavy box of metal components from a pallet, when he tripped on either a pallet or a nearby scissor lift, causing him to fall to the ground and strike his head. The plaintiff complained that the space in which he was required to walk, whilst carrying the box, was too narrow and posed a risk of tripping.
2 The plaintiff completed an incident report on the day of the accident, and a claim for workers compensation benefits soon after. He then continued to receive such no-fault benefits, together with weekly payments of compensation, until January 2013. The plaintiff stated that he sought advice from two solicitors within one to two years of the accident, but was not advised as to the existence of a limitations period within which to bring a common law damages claim.
3 In June 2012, the plaintiff instructed Zaparas Lawyers in relation to his workplace injury. Zaparas then lodged a lump-sum claim pursuant to s98C of the Accident Compensation Act 1985 (“ACA”). This claim took over three years to process and determine, such that it was not until 28 January 2016 that a serious injury application was finally lodged on the Victorian WorkCover Authority in respect of the October 2001 accident.
4 The plaintiff was granted a serious injury certificate by the defendant’s representatives, and proceedings were issued in this Court on 6 February 2016.
5 The defendant subsequently raised a limitations defence, on the basis the six-year limitation period had expired on 3 October 2007. Accordingly, the plaintiff now seeks an extension of time in which to issue common law proceedings pursuant to s23A(2) of the Limitation of Actions Act 1958 (“LAA”). It is now for me to determine whether, in all the circumstances of the case, it is just and reasonable to extend the limitation period.
Background
Date Event December 1950 The plaintiff was born in China.[1] 1984 The plaintiff migrated to Australia.[2] October 1999 The plaintiff commenced employment with the defendant as a machine operator.[3] 3 October 2001 The plaintiff suffered injury in the course of his employment with the defendant, whilst working on the Electrolux line,[4] when he tripped carrying a box of metal components.[5] The plaintiff suffered a loss of consciousness and was later taken to hospital by ambulance. The plaintiff completed an incident notification form and his injury was recorded in the defendant’s Register of Injury form.[6] 4 October 2001 A WorkSafe field report was prepared by Inspector Bevan Smillie in relation to the plaintiff’s accident.[7] 16 October 2001 The plaintiff lodged a claim for compensation which was subsequently accepted.[8] Late 2001 to possibly 2003 The plaintiff instructed solicitor, Michael Kats, from Rhoden Lawyers. The plaintiff initially consulted Mr Kats as a consequence of a delay in receipt of his weekly payments.[9] The plaintiff does not recall being advised of any time limit in which to lodge a common law claim.[10] 2002 The plaintiff’s daughter took him to see a second lawyer with whom he had difficulty communicating. He saw this lawyer once, and said he was not given any advice about his claim,[11] nor does he believe he was advised of any time limit in which to lodge a common law claim.[12] 2003 The defendant ceased operating the Electrolux line.[13] February 2003 The defendant commissioned an investigation report from DP Thomas & Associates Pty Ltd in relation to the circumstances of the plaintiff’s accident on 3 October 2001. The report included statements from the following:
· The plaintiff (unsigned)
· Brendan Rundle, signed on 2 March 2011
· Gregory Cummins, dated 4 March 2003
· Robert Heidenreich, signed and dated 21 February 2003
· Claman Ithier, signed and dated 21 February 2003
· Nanette Brown, signed and dated 24 February 2003.[14]
26 March 2003 The investigation report stated that the plaintiff was represented by Mr Kats of Rhoden’s Lawyers, who had advised the plaintiff to attend an interview with the investigator, provided he did not sign a copy of his record of interview.[15] 2006 The defendant moved its business to Dandenong South and ceased all manufacturing in the same year.[16] August 2007 The defendant was acquired by the Regal Beloit Corporation.[17] Around 2012 The defendant moved its business to Hallam. Mid-2012 The plaintiff received a letter from the defendant stating there would be a change in the frequency in which he received his weekly compensation payments.[18] June 2012 The plaintiff consulted Zaparas Lawyers and sought advice in relation to his WorkCover claim, as he had experienced delays in receiving his weekly compensation payments.[19] 26 June 2012 The plaintiff signed a cost agreement with Zaparas Lawyers.[20] 14 September 2012 Zaparas lodged an impairment benefit claim pursuant to s98C of the Accident Compensation Act with the relevant WorkCover insurer. 2 October 2012 The WorkCover insurer, Xchanging, informed the plaintiff’s solicitors that the s98C claim could not progress until it had been served on the defendant.[21] 12 October 2012 The s98C claim was served upon the defendant by registered mail.[22] November 2012 The plaintiff attended a conference with Ms Caroline Mills of counsel, and was advised of the expiration of the limitations period.[23] 14 December 2012 Xchanging informed the plaintiff that his entitlement to weekly payments and medical and like expenses would be terminated effective 14 January 2013.[24] 28 March 2013 Xchanging forwarded a notice of liability, assessment and entitlement, in respect of the plaintiff’s s98C claim. This letter informed the plaintiff that it accepted he had suffered a psychological condition, but rejected liability for the following injuries:
· Back with referred pain to the right leg
· Neck
· Severe cervicogenic headaches
· Body numbness
· Left shoulder
Further, the plaintiff’s impairment in respect of the accepted psychiatric injury was assessed at zero per cent.[25]
29 May 2013 The Accident Compensation Conciliation Service issued a genuine dispute certificate by in respect of Xchanging’s decision to reject liability for the plaintiff’s physical injuries, as well as the termination of his weekly payments and medical expenses[26] 2 August 2013 A complaint was filed in the Melbourne Magistrates’ Court in relation to the rejection of liability for the plaintiff’s physical injuries, as well as termination of his weekly payments and medical expenses.[27] 27 October 2014 Magistrate Wright referred the medical dispute to the Medical Panel.[28] 1 January 2015 The defendant’s business was transferred to Regal Beloit, under the trading name Regal Air Systems.[29] March 2015 The plaintiff was examined by numerous doctors at the Medical Panel. 5 June 2015 The Medical Panel provided its certificate of opinion and reasons for opinion in respect of the plaintiff’s rejected injuries for his lump-sum claim, together with a decision relating to the termination of the plaintiff’s medical expenses and weekly payment.[30] 24 August 2015 Xchanging accepted liability for the plaintiff’s psychological condition, mild traumatic brain injury, and soft-tissue injury to his cervical spine (pursuant to the Medical Panel certificate). It again determined that the plaintiff suffered zero per cent psychiatric impairment, and assessed the impairment of his physical injuries at zero per cent. 18 September 2015 The plaintiff rejected the impairment assessments in relation to both his physical and psychiatric impairment, and referred the matter to the Medical Panel. 20 November 2015 Following an examination of the plaintiff in October 2015, the Medical Panel determined that the plaintiff suffered a zero per cent impairment in relation to his psychiatric condition, and a zero per cent impairment arising from the mild traumatic brain injury and soft-tissue injury to his cervical spine.[31] 26 November 2015 Xchanging forwarded a notice of impairment benefit letter to the plaintiff in respect of his lump-sum claim advising that no benefit was payable. 28 January 2016 The plaintiff’s serious injury application was lodged with the Victorian WorkCover Authority.[32] 11 May 2016 The defendant granted the plaintiff a serious injury certificate for pain and suffering only. 7 September 2016 A Writ and Statement of Claim was filed. [1]Exhibit AM3, plaintiff’s affidavit sworn 22 January 2016, [4]
[2]Ibid
[3]Ibid
[4]Affidavit of Ashley McDonald sworn 17 March 2017, [4.4.2]
[5]Exhibit AM3, Plaintiff’s Affidavit sworn 22 January 2016, [11]
[6]Affidavit of Sachith Fernando sworn 12 December 2016, [20] and “SF12”
[7]Affidavit of Sachith Fernando sworn 12 December 2016, [20] and “SF16”
[8]Affidavit of Ashley McDonald sworn 14 March 2017, [4] and “AM1”
[9]Plaintiff’s Affidavit sworn 16 March 2017, [2] and Transcript (“T”) 47, Line(s) (“L”) 9-17
[10]Plaintiff’s Affidavit sworn 16 March 2017, [2] and T48, L16-18
[11]T59, L29-30
[12]Plaintiff’s affidavit sworn 16 March 2017, [3]
[13]Affidavit of Ashley McDonald sworn 17 March 2017, [4.4.2]
[14]Affidavit of Sachith Fernando sworn 12 December 2016, [20] and “SF15”, Affidavit of Ashley McDonald sworn 14 March 2017, [8] and “AM4”
[15]Affidavit of Sachith Fernando sworn 12 December 2016, [20] and “SF15”
[16]Affidavit of Ashley McDonald sworn 17 March 2017, [4.4.4]
[17]Ibid
[18]Exhibit 2 – Letter undated (approximately mid-2012) from Ms Melissa Griffiths from the defendant company, to the plaintiff
[19]Plaintiff’s Affidavit sworn 16 March 2017, [5]
[20]Affidavit of Sachith Fernando sworn 12 December 2016, [5]
[21]Affidavit of Sachith Fernando sworn 12 December 2016, [9] and “SF3”
[22]Affidavit of Sachith Fernando sworn 12 December 2016, [10] and “SF4”
[23]T113, L1
[24]Exhibit 1- Letter from Xchanging to plaintiff dated 14 December 2012
[25]Affidavit of Sachith Fernando sworn 12 December 2016, [11] and “SF5”
[26]Affidavit of Sachith Fernando sworn 12 December 2016, [12] and “SF6”
[27]Affidavit of Sachith Fernando sworn 12 December 2016, [12] and “SF6”
[28]Affidavit of Sachith Fernando sworn 12 December 2016, [13]
[29]Affidavit of Ashley McDonald sworn 17 March 2017. It should be noted that it is unclear from the affidavit material as to whether the defendant changed hands in either August 2007 or January 2015. For the purpose of this application, in my view, nothing turns on this.
[30]Affidavit of Sachith Fernando sworn 12 December 2016, [14] and “SF7”
[31]Affidavit of Sachith Fernando sworn 12 December 2016, [17] and “SF9”
[32]Affidavit of Sachith Fernando sworn 12 December 2016, [19] and “SF11”
Evidence given in the application
6 Both the plaintiff and his solicitor, Mr S Fernando, were cross-examined at the hearing.
7 In summary, the plaintiff gave the following evidence:
(a) The day prior to the accident, the plaintiff had complained to the maintenance supervisor, Greg Cummins, that the scissor lift was in his way. He said it was subsequently removed.[33]
[33]T92, L18-21
(b) On the day of his accident, the scissor lift was back in his work area. The plaintiff then complained to his production supervisor, Claman Ithier,[34] as well as to Greg, when Greg walked through the area. He said the scissor lift was not removed on this occasion. [35]
[34]T33, L7-8
[35]T89, L5-20
(c) The accident occurred whilst the plaintiff was carrying a box of metal components, and he tripped on either a pallet or the scissor lift.
(d) In his evidence, the plaintiff used a diagram of his workstation that he had previously drawn, to mark the path he walked from the machine to the pallet where he got the box of metal components, noting the location of his fall.
(e ) The plaintiff lost consciousness in the fall. He said the first person to find him was a Maori man, whose name he could not recall.[36]
[36]T100, L20
(f) The plaintiff did not believe he was moved after his fall.[37]
[37]Unsigned record of interview conducted with Mr Nikolai Nikitin on 21 February 2003
(g) The plaintiff consulted solicitor, Michael Kats, from Rhoden Lawyers as there had been a delay in his weekly payments. Mr Kats assisted the plaintiff to resolve this issue, and may have seen him on up to four occasions, until possibly 2003. The plaintiff did not use an interpreter when he spoke to Mr Kats, and could not recall being advised of the limitations period in respect of the common law claim.
(h) The plaintiff consulted a second solicitor in approximately 2002. However, the plaintiff stated that the solicitor was not able to help him due to communication difficulties, and did not give him advice regarding the limitations period.
(i) In about 2012, the WorkCover insurer told the plaintiff that he would remain on weekly payments until 65 years of age and that he did not need to see a lawyer.[38] The plaintiff was not able to recall the exact date on which this conversation occurred, but stated that his affidavit sworn on 16 March 2017 was incorrect insofar as it claimed the conversation occurred in 2002.
(j) The plaintiff does not recall being advised of the limitations period when he consulted Zaparas Lawyers in June 2012.
[38]T61, L19-27
8 In summary, Mr Fernando gave the following evidence:
(a) The plaintiff was never given written advice regarding the relevant limitations period.
(b) The plaintiff conferred with Ms Caroline Mills of counsel in November 2012, at which time the plaintiff was given oral advice that the limitations period had expired.
(c ) Mr Fernando was of the mistaken belief that, pursuant to s134ABA of the ACA, the limitations period was suspended whilst the s98C claim was determined. Further, he believed that a serious injury application could not be lodged until the lump-sum claim had been finalised.[39]
[39]T111, L13-19
9 The defendant relied upon three affidavits tendered by solicitor, Ms A McDonald. These affidavits detailed the attempts made by the defendant to locate witnesses and documents relevant to the plaintiff’s claim.
10 In summary, Ms McDonald gave the following evidence:
(a) Nanette Brown has only a vague recollection of the accident. She cannot recall making the statement she gave in February 2003, and was not assisted by reading the document. She recalls the defendant undertook formal risk assessments on a regular basis and that Minutes of those assessments were taken. However, she cannot recall any details regarding these risk assessments, including how regularly they were undertaken or their outcomes. Ms Brown also recalls the defendant had a safe manual handling policy on which staff were trained, but cannot recall any details of the policy or the training provided.[40]
[40]Affidavit of Ashley McDonald sworn 14 March 2017, [11]
(b) Claman Ithier does not recall making his statement in March 2003. However, he was able to confirm certain aspects, including those paragraphs relating to him finding the plaintiff after his fall. Mr Ithier denies the plaintiff complained to him about the location of the scissor lift. Mr Ithier also recalls that the defendant undertook formal risk assessments, but is unable to recall the nature and frequency of such assessments or their outcomes.[41]
[41]Affidavit of Ashley McDonald sworn 14 March 2017, [12] and “Exhibit 6” - Affidavit of Ashley McDonald sworn 21 March 2017
(c) Greg Cummins has only a vague recollection of the accident. He cannot recall making the statement he gave in February 2003 and was not assisted by reading the document. He cannot recall the plaintiff complaining to him about the scissor lift. Mr Cummins recalls that the defendant undertook risk assessments on a regular basis, but is unable to recall the timing, frequency or outcomes of such assessments. He was able to recall that there were guidelines in relation to manual handling, but cannot recall the specifics.[42]
[42]Affidavit of Ashley McDonald sworn 14 March 2017, [14]
(d) Robert Heidenreich was not prepared to speak to the defendant’s solicitor in relation to the case.[43]
[43]Affidavit of Ashley McDonald sworn 14 March 2017, [15]
(e) Brendan Rundle has not been located.[44]
[44]Affidavit of Ashley McDonald sworn 14 March 2017, [16]
(f) Regal Beloit provided all the documents it holds in relation to the plaintiff’s employment and his claim. Such documents included the incident report, register of injuries, numerous emails between staff members, some of which discussed the need to obtain a statement from Rimoni Tiute, as well as a statement signed by the plaintiff on 30 November 2001 in relation to his accident.[45] The documents from Regal Beloit did not include any risk assessments or manual handling policies.[46]
(g) Copies of the reports prepared by D.P. Thomas and Associates were incomplete, in that they did not include the photos taken by Mr Ithier, nor the drawings of the accident scene prepared by Mr Ithier and Ms Brown. The original file held by D.P. Thomas was destroyed seven years after the report was completed, in accordance with its document destruction policy.[47]
[45]Affidavit of Ashley McDonald sworn 14 March 2017, [18] and “AM5”
[46]Affidavit of Ashely McDonald sworn 17 March 2017, [5]
[47]T192, L21-22
11 Neither party tendered any evidence as to the availability and recollections of the first person to find the plaintiff after the accident, Rimoni Tiute, or the WorkSafe inspector, Bevan Smillie.
12 Mr McGarvie invited me to draw an adverse inference from the defendant’s failure to explain the availability or otherwise of such witnesses. However, Mr O’Meara submitted that, in circumstances in which the onus is on the plaintiff to establish that an extension of time should be granted, the defendant was under no obligation to contact either potential witness.
Plaintiff’s reliability
13 The plaintiff struck me as a very genuine witness, who endeavoured to provide honest answers to the questions asked of him. However, he conceded on multiple occasions that he was unsure about certain details, and that he had difficulty recalling events that occurred over 15 years ago.
14 The plaintiff was cross-examined extensively in relation to the circumstances of the fall and, in particular, whether or not he tripped on the pallet or the scissor lift. On one occasion, the plaintiff waited approximately 45 seconds before answering that he had tripped on the pallet. However, on another occasion, the plaintiff stated that he had tripped on the scissor lift. The discrepancy between these answers is not a recent phenomenon, and I do not consider it to be a result of the delay in the institution of proceedings. In his claim form, completed on 16 October 2001, the plaintiff stated that he tripped on either the (scissor) lifter or a pallet. I consider it entirely plausible the plaintiff would be uncertain as to the exact reason he tripped, in circumstances in which he was walking in, what he described as, a confined space, holding a basket of metal components in front of him. I note the plaintiff also suffered a loss of consciousness in the fall, which would likely increase his uncertainty as to the object he actually tripped on.
15 On the second day of giving evidence, the plaintiff was adamant that he made complaints about the location of the scissor lift on three occasions prior to the accident. I note that while this does not appear consistent with the plaintiff’s statement to the investigator in 2003, the statement was not signed and was provided without the use of an interpreter.
16 Whilst I accept the plaintiff was a genuine witness, it is evident from the inconsistencies in his evidence that the passage of time has rendered his memory somewhat unreliable. For example, in his affidavit, the plaintiff stated that in about 2002, after having consulted the second lawyer, that he was advised by the WorkCover insurer’s case manager that he would be looked after “until the age of sixty-five, and that I did not need lawyers”. However, in cross-examination, the plaintiff indicated that this conversation took place in approximately 2012. In such circumstances, I am satisfied the plaintiff was not intentionally dishonest in relation to the contents of his affidavit. However, I do consider the plaintiff’s evidence in relation to the dates on which he saw solicitors, and on which he received assurance from the insurer that his weekly payments would be ongoing, to be unreliable.
17 In describing his work setup, I consider the plaintiff gave relatively clear evidence in relation to both the location of the machines and the place from which he was required to obtain the metal components. However, it is apparent that there will be differing evidence as to whether there were lines marked on the floor of the area in which the plaintiff fell, and whether or not he had previously complained about the scissor lift. Such discrepancies are not uncommon in industrial accident claims, even those brought within time, and I consider them to be matters upon which the plaintiff can be cross-examined at trial.
Can leave be granted in respect of one cause of action and not another?
18 In his Statement of Claim filed on 7 September 2016, the plaintiff pleaded both negligence, and in the alternative, a breach of the Occupational Health and Safety (Manual Handling Regulations) 1999.
19 During the hearing of the application, I raised with counsel the possibility of granting an extension of time for one cause of action and not the other.
20 Section 23A(2) states that:
“Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) and after hearing such of the person is likely to be affected by that application as it sees fit, may, if it decides that is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines.”
21 Mr O’Meara did not expressly concede that I could consider the s23A application in respect of the negligence cause of action, and then separately consider the application in respect of the manual handling cause of action. However, he submitted that the negligence pleadings included particulars which were so intertwined with those of the manual handling regulations, that even if I did consider the two causes of action separately, it would lead to the same result.
22 Mr McGarvie submitted that I could separately consider the two causes of action. In response to Mr O’Meara’s submission that the negligence cause of action currently includes particulars relevant to the manual handling regulations, Mr McGarvie submitted that I consider granting an extension of time in respect of certain particulars whilst striking out others.
23 On 29 March 2017, I recalled the parties and advised that I was satisfied s23A contemplates the possibility of an extension of time being granted in respect of one cause of action and not another. Section 23A(2) refers to an extension of time being granted in respect of a cause of action, and not the proceeding as a whole. In considering whether or not to grant an extension of time, the relevant factors may differ in importance when considering the different causes of action. In particular, sub-s23A(3)(b) requires a court to consider the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant. It appeared possible to me that the extent of the actual prejudice to the defendant may differ depending on the cause of action and its pleadings.
24 After having advised the parties that I intended to consider the s23A application separately for each of the two causes of action, the plaintiff sought leave to amend its Statement of Claim. Leave was granted and, on 4 April 2017, the plaintiff filed an Amended Statement of Claim. In its amended pleadings, the plaintiff withdrew its claim in respect of breach of the manual handling regulations, and deleted those references in its particulars of negligence referring to the defendant failing to conduct risk assessments.
25 Subsequent to the Amended Statement of Claim being filed, the defendant made further submissions in relation to the current pleadings. It submitted that, notwithstanding the deletion of those parts of the pleadings that referred to the manual handling regulations, the defendant was still prejudiced by the unavailability of its risk assessments.
Relevant principles
26 The parties agree that the limitation period for this claim expired on 3 January 2007.
27 The High Court recently set out the principles relevant to such an application in the decision of Prince Alfred College Incorporated v ADC.[48] In a joint judgment of French CJ, Kiefel, Bell, Keane, Nettle JJ, it was stated that:
“…First, an applicant for an extension of time must prove the facts which enliven the discretion to grant the extension and also show good reason for exercising the discretion in his or her favour. An extension of time is not a presumptive entitlement which arises upon satisfaction of the pre-conditions that enliven the discretion. The onus of persuasion is upon the applicant for an extension of time. The exercise of the discretion to grant an extension of time must take account of the reasons for the limitation regime, and the discretionary nature of the decision to be made must be respected when conducting appellate review of a primary judge’s decision. In Taylor, 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”.’
Secondly, the purpose of the legislative conferral of the discretion is to ensure a fair trial on the merits of the case. The loss of evidence which will tend against the prospects of a fair trial will usually be a fatal deficit in an argument that good reason has been shown to exercise the discretion to grant an extension. As McHugh J pointed out in Taylor, the justice of a plaintiff’s claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of the delay, is unable fairly to defend itself or is otherwise prejudiced. His Honour had earlier observed that, in cases of long delay, prejudice may exist without the parties or anyone else realising that it exists.”[49]
[48][2016] HCA 37
[49]Ibid at [99] – [100]
28 In determining whether it is just and reasonable to grant the plaintiff an extension of time, s23A(3) of the LAA requires that I have regard to all of the circumstances of the case, including the following matters:
“(a) the length of and reasons for the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d) the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”
29 The parties agreed that, in this application, only sub-paragraphs (a), (b), (e) and (f) were relevant.
30 The list of factors contained in s23A(3) are not exhaustive, nor should they be weighed against each other. Instead, the court must “endeavour to synthesize a number of competing considerations in arriving at a conclusion that takes account of them all.”[50]
[50]Tsiadis v Petterson [2001] VSCA 138 at [33]
What is the relevant delay to be considered?
31 Mr O’Meara submitted that the relevant delay was the period between the accrual of the cause of action and the issuance of court proceedings. He relied upon the following comment contained in the joint Judgment in Prince Alfred College, where it was noted that:
“..in weighing prejudice the court should not undertake comparison of the prejudice suffered by defendant before the expiration of limitation period and that suffered thereafter.”[51]
[51]Ibid at [109]
32 Mr O’Meara also referred me to the decision of the Full Court of the Supreme Court in Repco v Scardamaglia,[52] in which it was held that in a s23A application, the delay referred to in s23A(3) is the delay between the accrual of the cause of action and the making of the application for an extension of time.
[52][1996] 1 VR 7
33 Mr McGarvie submitted that the relevant delay was that between the expiration of the limitations period and the lodging of the plaintiff’s serious injury application.
34 I consider that I am bound by the decision in Repco, which is consistent with the comments of the High Court in Prince Alfred College.
35 In Welsh v Adecco Industrial Pty Ltd and Ors,[53] T Forrest J considered that the relevant delay is that between the accrual of the cause of action and the date upon which the plaintiff submitted her serious injury application pursuant to s134 AB of the ACA.
[53][2017] VSC 44
36 I note that at the time Repco was decided, a plaintiff could seek common law damages for a work injury without needing to first obtain a serious injury certificate under the ACA. This legislative requirement was subsequently introduced for injuries suffered at work on or after 1 December 1992.[54] Since that time, save for the “black hole period” between 11 November 1997 and 20 October 1999, an injured worker has been required to seek a serious injury certificate from either the defendant, or the court, prior to the institution of common law proceedings.[55]
[54]s135A ACA
[55]s135A and s134AB of ACA
37 The requirements for a valid serious injury application are set out in Ministerial Guidelines and include, amongst other requirements, an affidavit of the plaintiff, together with a draft Statement of Claim.[56] Both documents must then be served upon the VWA.
[56]Ministerial Directions
38 A serious injury application is the pre-cursor to the formal commencement of a common law claim. In this case, the sufficiency of the detail provided, as to the nature of the case the defendant would be expected to meet, is such that I am satisfied the period of delay to be considered was 3 October 2001 until 20 January 2016 when the serious injury application was lodged – a period of just over 15 years.
39 I shall now consider the factors in s23A(3) which are relevant to this case.
(a) The length of and reasons for the delay on the part of the plaintiff
40 Mr O’Meara criticised the plaintiff’s explanation for delay in the commencement of these proceedings and the paucity of such evidence. The plaintiff did not expressly state that he was unaware of his common law rights, but said he was only advised of the limitations period in 2012.
41 The plaintiff is an unsophisticated man who, whilst in Australia, has only ever worked in factories. Although he spoke basic English, whilst giving his evidence, the plaintiff often relied upon the assistance of the Mandarin interpreter, both in the understanding and answering of some of the questions.
42 The plaintiff was in receipt of weekly payments of compensation from October 2001, and only sought legal advice when he had difficulties regarding a delay in the payment of such compensation. He instructed his previous solicitors without the use of an interpreter.
43 In considering these circumstances, I am satisfied the plaintiff was not fully aware of his common law rights until sometime after he instructed Zaparas Lawyers in June 2012. I consider that he then trusted his solicitors would pursue his compensation entitlements, as they thought best, based upon their experience in personal injuries litigation.
(b)The extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant
44 The defendant submitted that it suffered both presumptive and actual prejudice as a consequence of the 15 year delay, and that such prejudice was so great that a fair trial was not possible.
45 Mr O’Meara relied upon the following examples of actual prejudice:
(a) Neither the factory nor the defendant’s system of work at the time the plaintiff was injured, are available for inspection. It is therefore very difficult to ascertain whether or not there was an adequate system of line markings on the floor.
(b) Mr Brendan Rundle has not been located.
(c) Ms Brown, Mr Ithier and Mr Cummins have a limited recall of the accident.
(d) The diagrams drawn by Mr Ithier and Ms Brown cannot be located.
(e) The photographs taken by Mr Ithier after the accident cannot be located.
(f) The defendant’s ‘5S’ housekeeping assessment undertaken on 19 September 2001, shortly prior to the accident, cannot be located.
(g) The defendant’s policies, safe operating procedures and training in respect of manual handling, cannot be located.
46 The defendant submitted that its prejudice is not avoided by the plaintiff simply focusing on particulars of negligence directed to allegations of prior complaint, and the failure to supervise and assist. It was further submitted that the presumptive and actual prejudice is so great that the defendant is compromised in its ability to deny that such complaints were made.
47 Mr O’Meara relied upon a recent decision of Justice T Forrest in Welsh. In that case, the plaintiff suffered injury to her lower back during the course of her employment in January 2004. It was accepted that her limitation period expired in or about January 2010. However, a serious injury application was not lodged until 16 October 2014. Ms Welsh did not report the incident to the defendant until several months after suffering her back injury and did not lodge a WorkCover claim until several years later. In July 2008, Ms Welsh instructed a solicitor to lodge a lump-sum claim and a possible common law claim. Those solicitors then pursued the plaintiff’s no-fault entitlement, which included issuing proceedings in the Magistrates’ Court. However, in January 2010, when the limitations period was due to expire, those solicitors failed to then lodge a serious injury application, despite having received advice from counsel to do so.
48 In Welsh, the respective defendants submitted that they suffered significant prejudice as a result of the destruction of numerous records, which then impacted upon the defendant’s ability to defend the allegations made against it. T Forrest J considered that the effect of the missing documentation “must be substantial”,[57] such that the defendant was “left to defend itself with bare denials and the faded recollections of those witnesses who can be found.”[58] In addition, the defendant’s factory had closed and the equipment the plaintiff was using when injured had been disposed of. This was also considered to constitute significant prejudice to the defendants. Ultimately, T Forrest J concluded that, in all the circumstances, it was not just and reasonable to extend the limitations period.
[57]Ibid at [26]
[58]Ibid at [26]
49 For the reasons I will explain below, I consider the circumstances of this case to be different from those in Welsh, in which there was a virtual void of contemporaneous documents.
(c)The extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages
50 As stated previously, I considered the plaintiff to be an unsophisticated man, who understands only basic English. The plaintiff had previously sought legal advice from two different solicitors in late 2001 to approximately 2003. However, I am not satisfied that the plaintiff was made aware of his possible common law entitlements, or the need to pursue them with any urgency.
51 Once he instructed Zaparas in June 2012, it was apparent that he trusted them to act in his best interests in the pursuit and prosecution of his claim. Therefore, I make no criticism of the plaintiff for not acting promptly or reasonably once he knew of his possible rights.
(d)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
52 It was unfortunate that the plaintiff’s lump-sum claim took over three years to process and determine, and that the plaintiff’s solicitor misunderstood the application of s134ABA of the ACA.
53 I make no criticism of the plaintiff’s solicitors for lodging the lump-sum claim, notwithstanding it was ultimately a protracted proceeding resulting in no impairment benefit being paid to the plaintiff. That is not something the plaintiff’s solicitors could have predicted at the commencement of the claim. In circumstances in which an impairment assessment of 30 per cent or more would result in a deemed serious injury, and an entitlement to claim damages for pain and suffering as well as pecuniary loss, I consider it was not unreasonable for Zaparas to first pursue the plaintiff’s lump-sum claim.
54 However, when the s98C claim was initially lodged, I consider a reasonable and prudent solicitor would have put the defendant on notice of the plaintiff’s intention to proceed with a serious injury application and common law claim at the conclusion of the lump-sum claim. Had the plaintiff’s solicitors informed the defendant as to the common law claim that was likely to proceed against it, such notification could then have formed a basis upon which to limit the period of delay to be considered under s23A.
55 The failure of the plaintiff’s solicitors to lodge a serious injury application as soon as practicable after June 2012 or, in the alternative, its failure to notify the defendant of its intention to lodge a common law claim at the conclusion of the lump-sum claim, is not a matter that should be sheeted home to the plaintiff.
56 In Welsh, the plaintiff was represented by solicitors at the time the limitations period expired. Those solicitors then acted on the plaintiff’s behalf and pursued a claim in respect of the plaintiff’s no-fault benefit entitlements, but took no action to commence a common law proceeding until almost five years after the limitation period had expired. T Forrest J commented that :
“it would be unjust to visit the apparent tardiness of the plaintiff’s solicitors upon her.” [59]
[59][2017] VSC 44 at [19]
57 T Forrest J recognised that the plaintiff may well have an action in negligence against her former solicitors, but stated that whilst it was a factor to consider, it should not be determinative of the application.
58 The circumstances of Welsh are very different to this case. The plaintiff’s limitation period had expired almost five years prior to him instructing Zaparas.
Synthesising the competing considerations
59 The granting of an extension of time involves the weighing up of factors detailed in s23A(3) of the LAA. In synthesising these factors, I should exercise my discretion if I am satisfied it is just and reasonable to do so.
60 For the reasons detailed above, I make no criticism of the plaintiff for not bringing his claim sooner. I am conscious that if an extension of time is not granted, the plaintiff will be precluded from seeking common law damages.
61 As part of the synthesising process, it is necessary to consider whether or not the defendant’s presumptive and actual prejudice is so great that a fair trial is not possible.
62 I accept the defendant’s submission that the inability to inspect the factory, as well as the defendant’s system of work at the time the plaintiff was injured, is prejudicial. Whilst I accept it is now difficult to determine whether or not there was an adequate system of marked lines on the floor, I consider some of this prejudice can be overcome by the presence of witnesses who are still available to give evidence.
63 I accept that Mr Brendan Rundle has not been located. However, Ms Brown, Mr Ithier and Mr Cummins are all available to give evidence. Each currently claim to have a limited recall of the circumstances of the accident. However, I consider it likely that, before being called as witnesses, each will re-read their very detailed statements, in addition to being provided with other documents relevant to the claim, and conferring with counsel. In doing so, I consider it likely their memories will be sufficiently refreshed, such that by the time they are called to give oral evidence, a fair trial will be possible.
64 In particular, I note that Mr Ithier denies the plaintiff complained to him about the location of the scissor lift, and confirms the statement he previously gave which included the following:
“I think he was laying where he had fallen. He was between two pallets, as I recall. The pallets in question held crates of end shields and I believed Nikolai had been taking a crate of end shields from one of these pallets, when he tripped and fell. The pallets were within their floor markings, as was a nearby empty pallet. There was adequate room between the pallets and the lighting was very good. There was no spillage on the floor in so far as I am aware.
I am pretty sure there was a hired scissor lift nearby at the time, but I do not think he could have tripped on this is as it was not close to where I saw him being attended to. The scissor lift was there for electrical work being performed on the overhead lighting elsewhere. It was “parked” there due to access to a power source to recharge the batteries.
I discussed how the accident occurred with Nikolai when I visited him in hospital the next day. He was unsure of what had occurred. He said he believed he had tripped over the pallet rather than the scissor lift. He was carrying a crate of end shields at the time.”
65 I consider this to be specific evidence, directly relevant to the negligence claim, which the defendant can still call to defend itself in this claim.
66 I also consider it highly relevant that the plaintiff made statements in 2001 and 2003, regarding the circumstances of his accident, upon which he can be cross-examined.
67 It is unfortunate that neither the diagrams drawn by Mr Ithier and Ms Brown, nor the photographs taken by Mr Ithier after the accident, can be located. However, there are two relatively contemporaneous sketches that still exist, and which can be to put to the relevant witnesses.
68 I accept that the defendant’s ‘5S’ housekeeping assessment undertaken on 19 September 2001 cannot be located. However, in circumstances in which the plaintiff said that the scissor lift had been parked in the area for no more than a week prior to this accident, this assessment would have no direct relevance to the plaintiff’s claim.
69 I also accept that the defendant’s policies, safe operating procedures and training in respect of manual handling, cannot be located. The destruction of such documents may well have constituted insurmountable prejudice in the manual handling claim. However, I consider such prejudice is of less significance in the negligence proceedings. It is unlikely that any such documents would be directly relevant to the plaintiff’s claim that he was required to carry a heavy box of components, in a narrow area.
70 Notwithstanding my acceptance that the defendant has suffered both presumptive and actual prejudice as a consequence of the delay, I consider there is still sufficient material relevant to this matter to enable a fair trial to be held.
Conclusions
71 On balance, after considering all the factors relevant to this application, I am satisfied that I should exercise my discretion to grant the plaintiff an extension of time in which to commence his common law claim. I will make the consequent orders.
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