O'Connor, Clinton v Woolworths (Victoria) Limited Trading as Roelf Vos Supermarkets - [1999] TASSC 3

[1999] TASSC 3

PARTIES:  O'CONNOR, Clinton
  v
  WOOLWORTHS (VICTORIA) LIMITED

trading as ROELF VOS SUPERMARKETS

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  692/1998
DELIVERED:  13 January 1999
HEARING DATE/S:  7 December 1998
JUDGMENT OF:  Underwood J

CATCHWORDS:

Workers Compensation - Alternative rights against employer and third parties - Alternative rights against employer for damages at common law or by statute - Effect of claim or proceeding for or receipt of compensation on right to damages - Limitation of time for instituting action for damages - Tasmania - Extension of time - Application of settled principles.

Workers Rehabilitation and Compensation Act 1988 (Tas), s135.
Brisbane South Regional Health Authority v Taylor (1996 - 1997) 186 CLR 541, applied.
Aust Dig Workers Compensation [122]

REPRESENTATION:

Counsel:
             Applicant:  B C Hilliard
             Respondent:  A M Quinn
Solicitors:
             Applicant:  Watling Roache Lawyers
             Respondent:  Dobson Mitchell & Allport

Judgment category classification:
Judgment ID Number: [1999] TASSC 3
Number of pages: 4

Serial No 3/1999
File No 692/1998

CLINTON O'CONNOR v WOOLWORTHS (VICTORIA) LIMITED
trading as ROELF VOS SUPERMARKETS

REASONS FOR JUDGMENT UNDERWOOD J

13 January 1999

The applicant seeks an order extending time within which to commence proceedings against the respondent, his former employer, for damages for personal injury.
On 9 September 1993, the applicant was employed as a "shelf filler" at the respondent's store in Upper Burnie. During the course of that day, the applicant went to the staff toilets located next to the garden display. About a metre inside the door, the applicant slipped and fell to the floor. He landed on his "back and tail bone area". He immediately experienced pain at the base of his spine, left his place of employment and visited a doctor. The medical practitioner certified the applicant unfit for work for a short period. He claimed, and was paid, weekly compensation. This application falls to be determined in accordance with the provisions of the Workers Rehabilitation and Compensation Act 1988, s135 which provides:
"135 ¾ (1) Where any payment of compensation under this Act in respect of an injury has been accepted by a worker, no proceedings shall be commenced by him, after the expiration of a period of 3 years after the date on which the injury was suffered, against the employer to recover damages in respect of that injury.
(2) Notwithstanding anything in subsection (1), on application made in that behalf by a worker, the Supreme Court or a judge in chambers may, after giving the employer an opportunity of being heard, extend the period referred to in subsection (1) by such further period, not exceeding 3 years, as the Court or judge thinks necessary.
(3) The powers conferred on the Supreme Court or a judge by subsection (2) may be exercised notwithstanding that the period mentioned in subsection (1) may have expired."
The time within which the applicant could have commenced proceedings as of right expired on 9 September 1996. This application and a writ claiming damages for negligence were filed on 8 May 1998, one year and eight months out of time. In support of his application, the applicant read his affidavit sworn 27 May 1998. He was cross-examined on this affidavit.
With respect to the question of whether the applicant has established a prima facie case, the applicant deposed in his affidavit, par4:
"I noticed as I got up that the floor was wet where I had fallen. The water on the floor was coming from a leaky tap connection which connected a hose from the fruit and vegetable section to the tap in the toilet. I noticed that water was running down the length of the hose from the connection and pooling on the floor. It was usual practice for the hose for water supply to be connected to the tap in the toilet because there was no water connection in the fruit and vegetable section. After my fall management started placing a sign warning that the floor was slippery when water leaked from the tap. There was no sign in place on the day of my accident. Some time after my fall a water connection outlet was placed in the fruit and vegetable section so that the hose did not need to run from the toilet area."
Prior to his cross-examination, the applicant gave oral evidence by leave that the reference in the above paragraph to the fruit and vegetable department was an error and that the reference should have been to the garden display area. In cross-examination, the applicant said that he had regularly used the toilet prior to the day he slipped and that he had never before noticed water on the floor. He agreed that some time after his fall, the supermarket was extensively renovated and the staff toilets where the accident happened, were demolished during the course of the renovations and new toilets erected in another part of the building.
On behalf of the respondent, an affidavit sworn by Mr Graeme Cocks on 24 July 1998 was read. Mr Cocks was the manager of the fruit and vegetable department at the time of the accident. After this length of time, Mr Cocks' recall of the relevant events was very sketchy. He deposed in his affidavit, pars7 - 10 inclusive and 12:
"7   I vaguely recall that there was a tap that ran from the male staff toilets via a hose to a garden display that was set up in the store at the time.
8    I believe that the tape and hose had been in operation for some time for the purpose of marketing the items in a garden display. The tap in the toilet was the closest tap to the display and that is why it was connected there. The garden display was approximately 10-15 metres from the male staff toilets. The fruit and vegetable department, was not anywhere near this display.
9    I have no recollection as to whether that hose connection was leaking. I have no recollection of water being on the floor.
10   I have no recollection of a sign in the toilet warning people that it had a slippery floor either before or after the date that the Plaintiff slipped on 9th September, 1993. I have no recollection of a hose connection being repaired or changed after the 9th September, 1993.
…
12   I have no recollection of anyone else complaining about or slipping on any water on the floor of the male staff toilets."
In his cross-examination, Mr Cocks said that he recalled that the hose was permanently attached to the tap in the toilets. He said that it was kept rolled up and when needed, it was unrolled. He said that the system had been in place for "some time". He was unable to recall seeing water on the floor on any other occasion.
In his cross-examination the applicant said that before he went to see the doctor on the day of the accident, he reported the incident to someone in the office. He said after he had done this, he saw a "witches hat" on which was written "wet floor", positioned near the water on the floor in the toilet. He added that a short while later the water was cleaned up and the sign removed. How the applicant knew all that having regard to his evidence that he went to see the doctor after reporting the incident was not explained by the evidence.
There was no evidence to establish how long the water had been on the floor before the accident. There was no evidence that prior to the day of the accident the hose had leaked water onto the floor and there was no evidence whether or not there was a system in place to detect and mop up water or other liquids that had spilled onto the floor in the respondent's premises. Thus, it is fair to observe that the evidence barely establishes that the applicant has a prima facie case, although of course, as Cox J (as he then was) said in Soul v Soul 23/1982 at 6, that on an application such as this, the evidence of a prima facie case may only be skeletal.
One thing that did emerge from the oral evidence of both the applicant and Mr Cocks was that the likelihood of a trial being able to shed any more light on the circumstances surrounding the applicant's accident is extremely remote after this lapse of time. In this respect, the respondent has suffered prejudice by the delay caused by the plaintiff's failure to prosecute his suit in a timely manner. This general delay has also prejudiced the respondent's ability to properly defend any proceedings in another respect.
In his affidavit, par7, the applicant deposed with respect to his condition after the accident as follows:
"7 I was off work for approximately two to three months. I received Workers Compensation payments for this period. I then returned to work on light duties. I was still experiencing difficulties even though I was on light duties. Certain movements would cause pain in the tailbone and back. After a month or so found it necessary to have further time off work. I was off work for approximately one month the second time. I received Workers Compensation payments for this period. I then returned to work for approximately six months on light duties. I was still experiencing pain however, I attempted to continue working. After that time I was on and off work on a number of occasions because of the pain I was suffering from the injury. On each occasion I was off work I received Workers Compensation payments. I was prescribed pain killers. I became dependent on the pain killers. I became very depressed because of the pain that I was in. I found it difficult to sleep. I eventually left work because of these difficulties."
With respect to the foregoing, the following matters were put to the applicant:
·    That he was off work for twenty days after the accident and not two to three months. He said that he did not know whether or not that was correct.
·    That he had suffered from pain in his lower back before the accident on 9 September 1993. He said that he "didn't know".
·    That he consulted a doctor in July 1993 complaining of pain in the lower back, left leg and buttock. He said he could not recall doing this and did not know whether it was true or not.
·    That in July 1993, he told the doctor that he had slipped on the wet floor in the wash room and injured his back, his buttock and his left leg. He said he was "confused" and that there was only one incident in which he slipped in the toilet at work but concluded, "I don't know; it's a long time ago".
·    That in February 1994, he suffered pain in his lower lumbar spine and leg whilst lifting pet food at work. He agreed that this was correct.
The cross-examination of the applicant revealed that he had seen a number of different medical practitioners with respect to pain in his lower back, both before and after the accident at work on 9 September 1993. There was no evidence with respect to the present whereabouts of those practitioners, nor with respect to the availability of their records. Further, the applicant's appalling memory means that it is unlikely that he will be able to answer interrogatories with respect to the issue of a causal link between his present and past disabilities and the accident on 9 September 1993.
The applicant deposed that he became dependent on prescribed pain killers. He said in cross-examination, that he remained in the respondent's employ until 24 February 1997, after the time for commencing proceedings had expired. He agreed that prior to this time, he was abusing pain killing drugs and "experimenting" with the use of cannabis.
By his affidavit, par8, the applicant deposed:
"8 After I left work my union arranged for me to see a solicitor in Hobart in respect of a claim. However, I not [sic] attend that appointment because at the time I was very depressed. I was not aware that proceedings must be issued within a certain time period after the accident."
By his oral evidence the applicant made it clear that after he left work he had a "nervous breakdown" and was admitted to hospital for some period of time.
The applicant's oral evidence with respect to the reason for the delay in commencing proceedings was most unsatisfactory. At the outset he contradicted his affidavit, par8, by saying that the union did not arrange for him to see a solicitor in Hobart, but to see "some union person". The applicant could not say who this person was and was unable to describe him or her by reference to any office or position in the union. He was unable to state his understanding of why he had been advised to see this person other than to say that it was "about the fall". When it was put to the applicant that he was told to see someone about making a claim with respect to his accident, he said that it was not about making a claim, and added that he did not know why he had to see this unidentified person in Hobart. The applicant said he did not go to Hobart to see this person as he felt depressed at the time and did not have the money to get there.
There was no evidence from any union representative. The inference is inescapable that shortly after he stopped work in February 1997, some person advised the applicant to see someone in Hobart about his entitlements arising out of the accident on 9 September 1993, but the applicant decided to do nothing about it.
About a year later, the applicant's parents urged the applicant to contact his present solicitors. He said that his parents did this because they had seen an advertisement in the newspaper to the effect that no fee would be charged unless a claim was successful. Accordingly, the applicant consulted Mr Hilliard on 8 April 1998 and then became aware that this application would be necessary. Thereafter, the filing and service of the application was attended to without delay.
The applicant carries the onus of showing that it is just that the time for bringing an action for damages for personal injury against the respondent should be extended. As McHugh J said in Brisbane South Regional Health Authority v Taylor (1996 - 1997) 186 CLR 541 at 553, "[the] limitation provision is the general rule; an extension provision is the exception to it."
I am not persuaded that the applicant has discharged the positive burden he carries of showing that the justice of this case requires that the order sought be made. The period of delay is considerable. There is no satisfactory explanation for it, particularly after the applicant spoke with a representative of his union. Ignorance of the limitation provision is not, per se, a satisfactory explanation for delay. Further, early in 1997, the applicant decided not to pursue an advised investigation with respect to any entitlement he may have had arising out of the accident. The delay that has occurred will make it very difficult for the respondent to properly defend the claim on the issues of whether there was a breach of duty and if there was, the extent of loss, injury and damage caused by this breach. In this respect, the following passage from the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor (supra) at 555 is pertinent:
"If the action had been brought within time, it would have been irrelevant that, by reason of the delay in commencing the action, Dr Chang might have had little independent recollection of his conversation with the applicant and that the defendant might have had difficulty in fairly defending itself. But once the potential liability of the defendant had ended, its capacity to obtain a fair trial, if an extension of time were granted, was relevant and important. To subject a defendant once again to a potential liability that has expired may often be a lesser evil than to deprive the plaintiff of the right to reinstate the lost action. This will often be the case where the plaintiff is without fault and no actual prejudice to the defendant is readily apparent. But 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 delay in commencing the action, is unable to fairly defend itself or is otherwise prejudiced in fact and who is not guilty of fraud, deception or concealment in respect of the existence of the action."
The application is dismissed.