Oliver v Carter Holt Harvey
[2016] VCC 23
•29 January 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-14-06530
| BEVERLEY OLIVER | Plaintiff |
| v | |
| NETWORK RECRUITMENT SERVICES PTY LTD and CARTER HOLT HARVEY WOODPRODUCTS AUSTRALIA PTY LTD | First Defendant Second |
| Defendant |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8, 9 & 11 December 2015 | |
DATE OF JUDGMENT: | 29 January 2016 | |
CASE MAY BE CITED AS: | Oliver v Carter Holt Harvey | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 23 | |
REASONS FOR JUDGMENT
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Subject: Plaintiff’s Application
Catchwords: Extension of Time Application – Withdrawal of First Defendant's Defence to s.23A Application
Legislation Cited: Limitation of Actions Act 1958 (Vic), Accident Compensation Act 1958 (Vic), Occupational Health & Safety (Manual Handling) Regulations 1999 (Vic)
Cases Cited:AxfordvGray [2013] VSC 664, Davies v Nilson [2015] VSC 584, Tsiadis v Patterson (2001) 4 VR 114, Andresakis v Alexus Holdings Pty Ltd [2006] NSWCA 294, Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C. Harrison QC with Mr A. Dimsey | Maurice Blackburn Lawyers |
| For the First Defendant For the Second Defendant | Mr N. Griffin Mr D. Oldfield | Lander & Rogers Lawyers Moray & Agnew Lawyers |
HER HONOUR:
Introduction
1 On 22 April 2014 the plaintiff lodged a serious injury application against the second defendant pursuant to the Accident Compensation Act 1985 (the AC Act). On 15 August 2014 the Victorian WorkCover Authority consented to the plaintiff bringing proceedings for pain and suffering damages only in respect to injury alleged to have been sustained throughout the course of the plaintiff’s employment with the second defendant and in particular on 18 December 2001, on 27 August 2003 and on 28 August 2003. Statutory offers and counter-offers failed to resolve the plaintiff’s claim.
2 On 23 December 2014 the plaintiff commenced common law proceedings against the defendants seeking damages for injury to her lower back, including injury at the L4/5 level requiring interbody fusion and rhizolysis (the injury) during the course of her employment between 20 October 1999 and 31 October 2003.
3 In summary the plaintiff contends as follows.
4 The plaintiff was employed by the first defendant, Network Recruitment Services Pty Ltd (Network), as a clerical/marketing assistant. Pursuant to a labour hire agreement between the first defendant and the second defendant, Carter Holt Harvey Woodproducts Australia Pty Ltd (Carter Holt), the plaintiff was hired to work at the Carter Holt’s premises and at her own premises. This work involved heavy repetitive work, including lifting and manoeuvring boxes.
5 The plaintiff relies on three incidents. The first two incidents involved lifting boxes of brochures whilst working at Carter Holt’s premises on or about 18 December 2001 and on or about 27 August 2003 (the first incident and the second incident respectively). The last incident involved lifting a loaded tub whilst performing work at home on or about 28 August 2003 (the third incident).
6 The claim against each defendant is made in negligence, alternatively for specific breaches of Regulations 12, 13, 14 and 15 of the Occupational Health & Safety (Manual Handling) Regulations 1999 (the OHS Regulations). Regulations 13 and 14 oblige an employer to identify tasks involving hazardous manual handling and to undertake risk assessment where a task involves hazardous manual handling.
7 Among other defences pleaded, each defendant contends the plaintiff’s action is barred by the provisions of the Limitation of Actions Act 1958 (Vic) (the Act).
8 By summons filed on 26 October 2015 the plaintiff sought an extension of the time within which to bring her action against each defendant pursuant to section 23A of the Act. This is a hearing of the extension of time application.
The relevant legislation and applicable principles
9 Notwithstanding amendments introduced by Part IIA altering the time limit in personal injury actions, where, as in this action for damages for personal injuries Part IV of the AC Act applies, section 27B preserves the time limit under section 5 of the Act. Section 5 of the Act imposes a six year time limit from the date of accrual of a cause of action founded on tort including an action for breach of statutory duty.
10 At hearing, the date of the third incident was treated as the date of accrual. It was common ground that the limitations period expired on or about 27 August 2009.
11 Part II, Division 2 establishes the circumstances under which the limitation period may be extended. Section 23A of the Act permits the Court (if it decides it is just and reasonable so to do)”[to] order that the period within which an action on the cause of action may be brought be extended for such period as [the Court] determines”. Section 23A(3) relevantly provides:
“In exercising the powers conferred on it by subsection (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following –
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.”
12 The principles applying to extension of time claims are well known. These are conveniently summarised by His Honour, Justice T Forrest in AxfordvGray, in a decision involving the extension of the limitation period under sections 27K and 27L of the Act, where His Honour says:[1]
[1] [2013] VSC 664
10 The principles which apply to this application are similar to those which applied to applications brought under s23A of the Act. Those principles can be summarised as follows:
· The plaintiff bears the onus of establishing that it is just and reasonable to order that the limitation period be extended.
· Should the defendants establish by evidence that they may suffer prejudice by granting the plaintiff an extension of time, then it is for the plaintiff to demonstrate that that evidence does not demonstrate prejudice.
· The considerations referred to in subsections (1) and (2) (of section 27L of the Act) are not to be weighed against each other; the Court must endeavour to synthesise the competing considerations in arriving at a conclusion that takes account of all of them.
· The relevant delay is the delay between the accrual of the cause of action and the making of the application for an extension of time.
· Relevant prejudice to a defendant is that which actually occurred by reason of the relevant delay, as well as prima facie or general prejudice to a defendant who would otherwise have the benefit of the limitation period. Whilst that prejudice cannot readily be identified generally where there is delay the quality of justice available to the defendant deteriorates.
· The longer the delay in commencing proceedings the more likely will be prejudice from lost witnesses or fading recollections.
The evidence
13 In support of her application for extension of time the plaintiff relied on the following documents:
· an affidavit she swore on 12 October 2015;
· three affidavits of her solicitors; sworn by solicitor, Rachel Kim Shaw on 23 October 2015 (the Shaw affidavit) or affirmed by solicitor, Craig Parrish on 23 October 2016 (the first Parrish affidavit) and on 7 December 2015 (the second Parrish affidavit);
· a summary of the medical reports in the plaintiff’s possession, prepared by her;[2]
[2] Exhibit A1
· three letters dated 23 June 2000, 15 October 2003 and 15 October 2003 concerning her contract with Network;[3]
[3] Exhibit A2
· copy Worker Injury Claim Form dated 2 June 2011.[4]
[4] Exhibit A3
14 In defence of the application Network relied on affidavits of its solicitor, Tanya Bloom, sworn on 8 December 2015 (the Bloom affidavit) and of a former Director between 9 May 1985 and 24 May 1996, Roger Langley, sworn on 7 December 2015 (the Langley affidavit).
15 Carter Holt relied on six affidavits: sworn by its solicitor, Sarah Jane Letcher (the Letcher affidavit) on 4 December 2015 and by five former employees of Carter Holt. The employees’ affidavits were sworn on: 12 August 2015, by Australian Market Manager Engineered Wood Products at Carter Holt’s Box Hill office between approximately 1998 and April 2006, Denis Tosin (the Tosin affidavit); 21 August 2015, by Carter Holt’s Sales and Shipping Co-ordinator for Engineered Wood Products for approximately three years until approximately 1999, Simmone Regan (the Regan affidavit); 30 September 2015, by Tammy Fankhanel (nee Hromis), who after relocating from Brisbane in late 1999, worked for two to three years as Carter Holt’s Marketing Manager in Engineered Wood Products (the Fankhanel affidavit); 5 November 2015, by Janelle Anderson, who was employed by Carter Holt at its Box Hill office between approximately the end of 1998 and 2002 as a receptionist and then as personal assistant to the Australian Manager for the Woodproducts section, Lloyd Redfern (the Anderson affidavit); and on 9 November 2015, by Carter Holt’s National Human Resources Manager at its Box Hill office between March 2001 and June 2005, Alan Tidswell (the Tidswell affidavit).
16 At hearing, only the plaintiff and Ms Shaw were required for cross-examination. The other affidavit material was dealt with in submissions.
17 Having completed his cross-examination of the plaintiff and Ms Shaw the day before, on the second day of hearing, counsel for Network obtained leave of the Court to withdraw Network’s defence of the application with reservation of the costs of the plaintiff in this regard. This application was unopposed.
18 There was no direct challenge to the plaintiff’s credit during cross-examination. Counsel for Carter Holt, nonetheless, submitted evidence of her belief that she could not establish a serious injury before undergoing surgery in July 2011 was unreliable.
19 As my discussion of the evidence reveals in due course, the concern regarding the reliability of the plaintiff’s evidence centred on the following:
· The conflicting evidence given during cross-examination about the extent to which the plaintiff’s understanding of her common law entitlements following the receipt of legal advice in October 2004 was informed from memory and/or from having refreshed her memory by reference to any document/s before swearing her affidavit.
· The fact that at different times during cross-examination the plaintiff who qualified her affidavit evidence that, in October 2004, she had been advised she would not establish a serious injury, resisted acknowledging the likely error in her affidavit evidence.
20 I prefer Ms Shaw’s evidence of the initial legal advice about the plaintiff’s common law entitlements in October 2004, to the likely reconstructed and somewhat confused evidence of the plaintiff’s belief in this regard. These matters notwithstanding, I did not form an adverse view of the plaintiff as a witness. On the evidence the plaintiff was a woman who actively pursued entitlements to compensation arising from back injury suffered in the course of her employment. I found her explanation of the delay in engaging legal representation due to concerns about legal costs and the risks associated with litigation and a belief that her condition would improve sufficiently for her to return to employment, both understandable and plausible. Ultimately, in the circumstances described, I found the explanations the plaintiff gave for various periods of delay reasonable. The question for the Court, after balancing all relevant considerations, was whether it was just and reasonable to grant the extension sort.
21 I will elaborate on all of these matters as part of my discussion of the evidence as a whole.
Submissions
22 Counsel for the plaintiff submitted the critical consideration in this application was the operation of any prejudice and whether that factor was so significant as to make the granting of an extension unreasonable in the circumstances of this case.
23 Counsel for Carter Holt, on the other hand, submitted the real matters for consideration involved ascertaining:
a) what the plaintiff knew about her rights to pursue a common law claim and what she did with that knowledge;
b) the likely prejudice resulting from the delay; and
c) the weight to be afforded any potential claim against the plaintiff’s solicitors.
The evidence – The circumstances of employment and the injury
24 As at the date of hearing the plaintiff was unemployed. The matters to which the plaintiff deposed in her only affidavit along with relevant parts of her oral evidence are summarised in the paragraphs that follow.
The employment
25 The plaintiff commenced temporary clerical work with employment agency, Network in about 1998. In her first year, the plaintiff’s placements were mostly with Vic Rehab or Carter Holt for about 2 to 3 days per week. The plaintiff’s work with Carter Holt involved mailing, sealing envelopes and building folders with brochures. Eventually, the plaintiff chose to work exclusively for Carter Holt because the company wanted her to work three days per week performing these and database duties.
26 At paragraph 3 of her affidavit the plaintiff deposes as follows:
3. In consultation with the Second Defendant and the First Defendant my duties became one day a week at the Second Defendant’s premises in Box Hill and then one or two days a week at home. Sometimes I did three to four days a week at home. I just submitted time sheets at the end of the week. I had them signed off by the manager at the Second Defendant, then I faxed them through to the First Defendant and I would be paid.
27 Under cross-examination by Network’s counsel, the plaintiff indicated she had a copy of a contract which permitted her to work from home. In response to a call for this documentation, after cross-examination had concluded, the plaintiff produced three letters dated 23 June 2000 and 15 October 2003.[5]
[5] Exhibit A2
28 In keeping with the plaintiff’s evidence in this regard, the first letter contains an agreement dated 23 June 2000, signed on behalf of Network by an Account Manager, on behalf of Carter Holt by Ms Hronis and by the plaintiff.
29 The agreement relevantly states:
Beverly will continue to work 2 days per week at Carter Holt Harvey, 1 day in the Office at 22 Prospect Street, Box Hill and 1 day from home at 1 Juliet Avenue, Healesville, 3777.
The duties to be completed at 1 Juliet Avenue, Healesville will be of a clerical nature, i.e collating and making up information packs/kits to be sent by mail to clients.
30 The additional correspondence dated 15 October 2003 post-dates the injury. I will comment on the content of this correspondence in due course.
The nature of the duties performed and any induction or training in safe manual handling practices
31 In paragraphs 4 to 7 inclusive of the plaintiff’s affidavit she explains the nature and the manner in which her duties were performed either at home or at Carter Holt’s Box Hill premises:
4. In the office I would re-stock for stock rooms with brochures. The brochures came in boxes. The weight of the boxes varied. Some were very heavy. They were heavier than, say, a box of photocopier paper. I picked them up off the ground, lifted, carried and place them onto shelves. Sorting out the store room in this way would take most of my day. I would then load boxes of brochures into the back of my car. My car was a station wagon. I would use a trolley to bring the boxes to my car, then lift the boxes by hand into the back of the vehicle. Often this job was quite heavy.
5. At home I would unload my station wagon. I had set up a room at home with a large bench at approximately my waist height. I placed boxes of brochures onto shelves, onto the bench or onto the floor. I would take brochures and assemble folders or replace the brochures into envelopes as required.
6. I then weighed each folder or envelope and prepared them for posting. The envelopes weighed between 125 grams and 500 grams. The folders weighed up to 3 kilograms each. I assembled between 50 and 150 of these “kits” a day. I placed the completed kits into Australia Post tubs. I completed about four tubs a day but sometimes up to six or even eight a day. I lifted the tubs onto a trolley. I pushed the trolley to my car. I would lift tubs into the back of my car. My husband sometimes helped me because the tubs were very heavy.
7. I drove my car to the local post office in Healesville. I took a shopping trolley from the Coles Supermarket and placed the tubs onto the trolley. I pushed the trolley to the post office and unloaded it by myself. I needed to do a couple of trips with the trolley. The post office opened the staff access counter door and let me leave the tubs on the floor at the back. I had to put the tubs on the floor myself.
8. At home I also did database work on the computer. I also did labels and envelopes.
32 The plaintiff further deposes that, prior to the injury, neither defendant took steps to assess her workplace at home or provide her with instruction and training in safe manual handling practices.
33 Under cross-examination by counsel for Network, the plaintiff confirmed the manner in which she performed her allocated tasks had not been discussed beforehand. Rather, she undertook these tasks in a manner she considered suitable.[6]
[6] TN 27
34 The nature of and the manner in which the plaintiff performed her duties, particularly those performed at Carter Holt’s Box Hill premises and the evidence of any instruction and training in safe work practices was addressed to some extent in the employee affidavits on which Carter Holt relies.
35 Prejudice due to the fading of witnesses’ memories is a consideration in this application. Paragraphs 6 and 7 of the Letcher affidavit articulate this aspect of Carter Holt’s complaint of prejudice in the following way:
6. In the course of conducting this matter for the second defendant I have identified and located former employees of the second defendant who worked with the plaintiff and have obtained affidavits from them. Those former employees are Alan Tidswell, Janelle Anderson, Tammy Fankhanel, Simmone Regan and Denis Tosin. They have provided in their affidavit statements as to the limited recollections of the plaintiff and events surrounding the period when her injuries are said to have occurred.
7. I am instructed by the second defendant that it believes it will be prejudiced in the defence of the claims by the plaintiff, set out in the statement of claim attached to the writ dated 22 December 2014, including allegations that it did not carry out adequate risk assessments, and did not provide a safe system of work, because it has been unable to locate any witnesses who can remember any details of the plaintiff’s employment with the first defendant at the second defendant’s premises or at home.
36 The Tosin, Regan and Tidswell affidavits indicate either no recall of the plaintiff or of her suffering work-related injury or, in the case of the Regan affidavit, demonstrate a limited recall of the plaintiff lifting and packing in the course of performing packaging and mailing duties for Engineering Wood Products.
37 The Fankhanel and Anderson affidavits do, however, demonstrate recall of the duties and the manner in which these were performed by the plaintiff, particularly at the Box Hill office. Ms Fankhanel gives a detailed description of these, recalling further that she was the plaintiff’s manager and the plaintiff had worked outside her office when working at the Box Hill office.
38 The evidence, if any, available to Carter Holt regarding any risk assessment of the plaintiff’s workplace, instruction and/or training in manual handling practices is addressed to some extent in the Anderson affidavit.
39 Among other things, the Anderson affidavit indicates that, no formal safety induction procedure was in place when Ms Anderson commenced employment from approximately the end of 1998.
40 Ms Anderson deposes she was responsible for ‘rolling out’ a ‘safety map’ for the office and for organising the induction process for new employees. Without stating when this occurred, at paragraph 3, Ms Anderson deposes that existing employees ((‘every person in the building’)) received manual handling induction when that part of the safety map had been rolled out. Ms Anderson further deposes that another division of Carter Holt, Futurebuild, would have retained the induction records in its safety file and that these records would have been boxed and archived at Recall, possibly towards the end of the time Ms Anderson worked at Carter Holt. As my discussion of other affidavit material including the discovery made so far by Carter Holt reveals shortly, I could not be satisfied that Carter Holt has investigated Recall as a potential source of documentation.
41 Remarkably, none of the other deponents, including Ms Fankhanel, address their recollection, if any, of risk assessment, safety training and/or manual handling practices operating at Carter Holt during the relevant period.
42 I will comment further on this issue and another aspect of prejudice on which Carter Holt relied - the availability to documentary records to defend the proceeding - in due course.
Employment-related back injury and a WorkCover claim
43 Paragraphs 10, 11 and 12 contain allegations relating to the three incidents of back pain on 18 December 2001, 27 August 2003 and 28 August 2003 respectively.
44 The first incident occurred in the storeroom at Carter Holt’s premises as the plaintiff lifted boxes of brochures above shoulder height whilst standing on steps. This was reported. Pain apparently resolved with rest and physiotherapy.
45 The second incident also occurred in the storeroom. This involved the plaintiff lifting boxes of brochures above shoulder height from a table to higher shelves whilst standing on a step ladder (“I felt something which was not quite pain. It was more like a “pull”. I knew I should stop. It developed into just a mild pain. I stopped what I was doing and just went and did something lighter for the rest of the day.[7]).
[7] The plaintiff’s affidavit at paragraph 11
46 The third incident occurred the day after the second. The plaintiff deposed as follows:[8]
12. When I got home I took a tub which contained some printed material and placed it just inside my house. The tub was quite full. It was very heavy. I estimated that it was about 15 to 20 kilograms. The next day, I went to move the tub I had brought into the house the night before. I leant over and I picked it up by the handles. I felt something “rip” in my back. I felt a lot of pain. I had never felt pain in my back like that before. I tried to keep working at home but the pain continued. I went to see the physiotherapist about it a couple of days later. His practice is called “My Physio”. I did not feel any improvement. I went to see Dr Tate a few days after that. I was struggling with back pain.
[8] The plaintiff’s affidavit at paragraph 12
47 The plaintiff deposed she took time off work and, in due course, her WorkCover claim, initially made on or about 27 September 2003 against Network, was accepted.
48 Notably, none of the Carter Holt witnesses who were still employed in various divisions of Carter Holt in 2003 recalled the plaintiff suffering work-related injury. It follows, they are not in a position to give evidence regarding the circumstances of any injury allegedly suffered at the Box Hill premises on 27 August 2003. However, as my discussion of the evidence reveals shortly, the material gathered by Network and the Victorian WorkCover Authority (the VWA) as part of the WorkCover claim includes an investigator’s report obtained within a few months of the injury as well as statements taken from the plaintiff and her then manager.
Termination of employment
49 The plaintiff deposes that, having continued working “some hours” from home until about 26 October 2003, her employment was terminated by Network on 31 October 2003. Apparently, despite the recommendation of general practitioner, Dr Tate that the plaintiff not travel too much, Network notified her she could no longer work from home.
50 The letter dated 15 October 2003 from Carter Holt’s Marketing Services Manager, Fiona Hare to Network essentially confirms that the plaintiff had been advised the terms and conditions of her contract were changed:
….so that she no longer works from home, but works here at Box Hill. Bev is expecting to hear from Network with these contract changes today. I also believe it would be fair and reasonable for Network to provide Bev with a letter confirming these changes.
51 The letter to the plaintiff of the same date from a Network Account Manager, Renee Fitzgerald, advises the changes in the following terms:
… the operational requirements of your job have changed. Network Recruitment Services Pty Ltd needs to be able to assess all workplaces on a regular basis and ensure Occupational Health and Safety requirements and guidelines are being met. Unfortunately, the nature of working from home makes it difficult for Network to maintain this ongoing assessment. As such, your new place of work for your assignment with Carter Holt Harvey will be 22 Prospect Rd Box Hill, effective from Thursday 30th October.
If you choose not to continue this assignment (from of the Box Hill workplace) then unfortunately the assignment will cease at the completion of your last shift before 30/10/03.
Please keep me informed if you decide not to continue the assignment let me know if I can be of any assistance in any other way.
52 Under cross-examination by Carter Holt’s counsel the plaintiff explained her doctor had restricted travel to 20 minutes. In short, at that time, by her account the plaintiff was considered medically unfit to undertake the 45 minute drive from her home in Healesville to Carter Holt’s premises at Box Hill.[9]
Medical examination, treatment and WorkCover issues between November 2003 and October 2004
[9] TN 59-60
53 During this period the plaintiff was sent for x-ray of her neck and back on 13 November 2003 by Mr Peter Battlay, a specialist appointed by the WorkCover insurer, CGU. On or about 12 January 2004, she attended surgeon Mr Rodney Simm, on referral from Dr Tate. Mr Simm did not recommend surgery.
54 It is a relevant consideration in this case that, following the completion of the discovery process, documentary evidence including documents relating to the WorkCover claim, the ongoing management of this claim and medical assessment will be available for the defence of this proceeding.
55 Exhibit A1 is a document prepared by the plaintiff. Among other things, this document lists medical reports and radiological material dated between 6 November 2003 and 29 July 2013 in the plaintiff’s possession.
56 Exhibits CP-5 to the first Parrish affidavit and CP-6 and CP-8 to the second Parrish affidavit refer to or contain relevant documentary evidence so far identified by the discovery process.
57 Exhibit CP-5 contains copy correspondence dated 6 May 2015 addressed to Carter Holt’s solicitors setting out the matters on which the plaintiff proposed to rely in pursuing the application for extension of time. Among other things, the letter refers to an investigation report dated 6 November 2003, prepared by Cygnus Higgins Shaw and an undated Network Recruitment Services-Incident/Injury Report naming Renee Fitzgerald as the supervisor. The investigation report includes statements made by the plaintiff on 23 October 2003 and by her manager at Carter Holt from May 2002, Fiona Hare, on 30 October 2003.
58 These documents were emailed to Carter Holt’s solicitors on 14 October 2014. They contain detailed information regarding the plaintiff’s employment; the nature and location of the duties performed by her for Carter Holt; the circumstances in which injury was said to have occurred; and evidence from Ms Hare, that following the injury the plaintiff had watched an Occupational Health & Safety video on lifting.
59 Exhibit CP-6 attaches copies of the investigation report, statements and incident/injury report.
60 Ms Hare’s statement is particularly important. It provides a contemporaneous, albeit unsworn account. For reasons not explained by Carter Holt at hearing or by the Letcher affidavit, no affidavit from Ms Hare was forthcoming. This omission considerably diminishes the impact of the claim of specific prejudice arising from loss of documentation and/or the fading of witnesses’ memories.
61 Exhibit CP-8 contains copy documents relating to Network’s unsworn affidavit of documents. Relevantly, correspondence from Network’s solicitor dated 12 October 2015 produces copies of discoverable documents requested by the plaintiff. These documents include correspondence concerning the plaintiff’s return to work, passing between the plaintiff and Network’s Account Manager, Renee Fitzgerald and its Commercial Manager, Mr Burnet in October 2003 and facsimile messages generated by the plaintiff to Ms Hare at Carter Holt’s Box Hill office in January 2004 and by another Network employee, Barbara Ross to CGU. The latter attaches extracts from Network’s Payroll History Ledger for the year 2003-2004.
62 Again, all of the above-mentioned material is available to Carter Holt in the defence of the proceeding. Moreover, there is no suggestion that the evidence of treating and examining health professionals is no longer available.
63 I found the plaintiff’s evidence that she at first believed she would recover without any permanent problem plausible, in view of her doctor’s willingness to allow her to continue working in 2003, albeit with restrictions on her travelling times and in view of her willingness to continue in alternative employment after her employment with Network ceased.
64 A dispute about the plaintiff’s entitlement to weekly payments of compensation, however, led the plaintiff to contact solicitors, Maurice Blackburn Cashman and a meeting with Ms Shaw at the firm’s Ringwood office on 6 October 2004.
The evidence – initial advice from solicitors, Maurice Blackburn Cashman (now Maurice Blackburn Lawyers)
65 The plaintiff consulted solicitors, Maurice Blackburn Cashman (Maurice Blackburn) for the first time on 6 October 2004. In paragraphs 18, 19 and 20 of her affidavit the plaintiff deposes as follows:
18. I continued to have pain in my lower back. At first I thought I would get over it. I did not want to be left with a permanent problem. There was a dispute about my ongoing entitlements to weekly payments. I went to the Law Institute of Victoria. They referred me to Maurice Blackburn. I saw a solicitor, Ms Kim Shaw at their Ringwood office on 6 October 2004. At that first consultation we discussed WorkCover entitlements, including weekly payments and medical expenses. I was advised that I would not be able to receive a lump sum of compensation for permanent impairment because I could not meet the 10% threshold. I was given a pack of brochures about Maurice Blackburn, Workcover (sic) and superannuation total impairment disablement claims. Ms Shaw discussed the possibility of common law damages. She advised me that I had to bring a common law claim within six years. She advised me that I would not establish that I had suffered a serious injury. I accepted her advice. I believed that my only source of compensation was going to be through the WorkCover scheme.
19. I received a letter from Ms Shaw dated 18 October 2004. It confirmed the advice that Ms Shaw had given me in person. She included a costs agreement. At that stage were still hoping to sort out the weekly payments issue with the Accident Compensation Conciliation Service. I went to my treating specialist, Mr Simm, to obtain a medical report to clarify some comments he had made. He provided a report dated 9 October (sic) 2004. I thought that would settle the issue. I believed that I would not be able to pursue common law damages because I did not have a serious injury.
20. On 24 November 2004 I wrote to Ms Shaw enclosing the report of Mr Rodney Simm dated 9 November 2004.
66 In her affidavit Ms Shaw relevantly deposes and produces a copy of the letter dated 18 October 2004 as follows:
2. On or about 6 October 2004 I conferred with the Plaintiff for the first time. She gave instructions about a lower back strain she suffered in the course of her employment on 29 August 2003. At that stage she had an accepted claim under the Accident Compensation Act 1985 (“the Act”). I gave her advice about a weekly payments dispute. I advised her to refer her dispute to the Accident Compensation Conciliation Service. If that process was successful then she could issue proceedings in the Magistrates Court. I advised her that her injury was not going to satisfy the 10% whole person impairment threshold to obtain a lump sum of compensation for permanent impairment pursuant to s98C of the Act. I formed the view that the plaintiff was not going to satisfy the serious injury threshold pursuant to s134AB of the Act.
3. By letter dated 18 October 2004 I wrote to the plaintiff advising her to pursue her weekly payments dispute in the Magistrates Court. I enclosed a copy of a costs agreement. The letter also advised the Plaintiff about Workcover (sic) no-fault benefits generally and common law rights. This included information about the six year time limit on commencing common law proceedings. I advised her that I would not be opening a common law file.….
4. I received a letter from the Plaintiff dated 24 November 2004 advising me that the Plaintiff had obtained a clarifying report from her treating surgeon, Mr Rodney Simm, dated 9 November 2004. At that stage I still had not opened a file of any kind on behalf of the Plaintiff because she had not returned a signed costs agreement.
67 It is unnecessary to repeat verbatim the content of the four-page letter dated 18 October 2004 exhibited to Ms Shaw’s affidavit. The letter purports to confirm the discussion with the plaintiff about her general entitlement to receive compensation under the AC Act for injury arising out of or in the course of her employment on, “29 (sic) August 2003”.[10] It is clear from this letter that the discussion focussed on the merits of issuing proceedings in the Magistrates’ Court to reinstate weekly payments of compensation. The letter seeks instructions in this regard and attaches a Magistrates’ Court Costing Agreement.
[10] Exhibit "KS1"
68 The letter further records discussion of and advice about the plaintiff’s entitlement to payment of a lump sum under the AC Act and the impact of such payment on the plaintiff’s right to pursue a common law claim for pain and suffering damages against her employer.
69 Importantly, the letter provides detailed advice about the making of a claim for common law damages. The salient parts of the advice given are set out below:
If you elect to pursue a claim for Common Law damages after undergoing your independent impairment assessment, you must first make an application to obtain a “serious injury” certificate. A “serious injury” for the purposes of pursuing a claim for damages is an injury that produces either a 30% or more whole-person impairment assessed under the Guides, or, in your case….
The Courts, when assessing whether an injury is “serious”, have said that the injury must be more than “major”, more than “significant” and at least “very considerable” in its impact on you as a person.
In addition to seeking damages for negligence for pain and suffering arising from the injury, you may also be able to recover damages for loss of earnings.…
A “serious injury” application is a one-off application. In other words, if you are unsuccessful with your application, you cannot re-apply at a later time. The timing of the application is therefore very important and we need to obtain all the relevant supporting material before your application is made.
We would like to review your case in 3-6 months. In the meantime, please keep a diary recording the effects that your injury have had on your day-to-day living, your attempts to return to work and your medical treatment.
In addition, it is also important to start to gather financial information including your financial records for at least three years prior to your accident. You should also retain your financial information…
Finally, it is important to understand that there is a statutory limitation period for pursuing Common Law claims for damages. Limitation period is six years from the date of your accident. In your case, as you were injured on 28 August 2003, court proceedings would need to be commenced no later than 28 August 2009. Again, we reiterate that before you can commence these proceedings, you must first obtain a “serious injury” certificate.
We confirm that we are not opening a file in your claim at this time.…
70 Both the plaintiff and Ms Shaw were cross-examined in some detail about the initial advice received concerning any entitlement to make a common law claim.
71 Essentially, Ms Shaw confirmed the following matters:
Ø The advice given.
Ø The anticipated review within three to six months’ time was intended to review the plaintiff’s condition, her treatment and the consequences of the injury and to consider the taking of further steps in pursuing a common law claim.
Ø She had not excluded the prospect of instituting common law proceedings on behalf of the plaintiff. Ms Shaw had not opened a common law file because, at the time, there was no immediate intention to pursue this claim.
Ø The conclusion stated in her affidavit that the plaintiff was not going to satisfy the serious injury threshold was not advice given to the plaintiff at the time. Indeed, had the plaintiff been so advised, this would have been noted in her file notes.
72 Ms Shaw’s evidence was not challenged by Carter Holt.
73 The plaintiff’s oral testimony regarding the initial advice received concerning a potential common law action was to the following effect:
In evidence-in-chief
Ø The content of her affidavit was accurate and adopted by her at hearing.
Under cross-examination by Network’s counsel
Ø The plaintiff agreed that she had: “a definite recollection … without assistance from any other material” of the discussion with Ms Shaw about common law damages. As stated in her affidavit, the plaintiff recalled that Ms Shaw advised her of the time limit and that the plaintiff would not establish that she had suffered a serious injury.
Ø The letter received dealt with the potential to bring a common law claim.
Ø The plaintiff agreed she had been asked to keep a record of events and issues associated with her injury and the consequences of the injury.
Ø The plaintiff understood the request to review her case in three to six months referred to both her common law and any statutory benefits entitlements.
Ø The plaintiff agreed her solicitors were saying her common law claim remained open. To this end, as requested, the plaintiff kept a diary/notes. The plaintiff believed she kept this material, but was unable to locate it before the hearing of her application concluded.
Ø The plaintiff understood from the advice received she had six years from August 2003 within which to lodge a common law claim. She did not make a diary note or record of this. Based on the explanation given by the plaintiff at hearing, she also understood from the advice received in October 2004, that she did not have the required serious injury (“I was told that I’d never had a serious injury that I could lodge a claim”[11]).
[11] TN 26
Ø The plaintiff rejected the proposition that she understood: “the ball was in (her) court to go back to Maurice Blackburn at a stage convenient to (her), to provide further instructions in respect of a common law claim. … I thought it was a general consensus between the two of us. That we would keep in contact with each other.”[12] Given the content of the letter of advice dated 18 October 2004, I did not find the plaintiff’s belief in this regard unreasonable.
[12] TN 26
Ø The plaintiff recalled sending the report from Mr Simm to Ms Shaw on 24 November 2004 and, further recalled, discussing the prospect of surgery with him in November 2004. According to the plaintiff the report was required to establish whether she needed surgery and had a serious injury claim (“The idea of sending the reports was to establish whether or not I had a serious injury claim. I understood that’s why I needed to send reports to her”[13]). During re-examination the plaintiff confirmed that, in discussion with Mr Simm, he advised surgery was not required.
[13] TN 34
Under cross-examination by Carter Holt’s counsel
Ø The plaintiff agreed the letter did not state she would not establish a serious injury.
Ø The plaintiff indicated she had collected financial records as requested.
Ø The plaintiff agreed the reason for asking her to gather and provide information and material was to assist her lawyers in establishing whether she had a serious injury.
Ø The plaintiff’s answers to a line of questioning exploring the obvious conflict between the unqualified statement in her affidavit that she was advised she would not establish a serious injury and her understanding that after gathering more information, her common law entitlement would be reviewed in three to six months’ time, were largely unresponsive and appeared to qualify the statement contained in her affidavit –
So your solicitor asked you to provide all of this material to assist in establishing whether you had a serious injury? – – – Yes.
You say that despite her having already formed the view, that you didn’t have one? – – – At the time, no.
… I suggest that the reason you went away and undertook to collect and provide your solicitor with all of this information is because you were not advised by your solicitor that you would not be able to establish a serious injury. What do you say about that? – – – I was asked to provide information and that’s what I did.
You would agree, wouldn’t you, that you were provided with that information or you are asked to provide that information to assist your solicitor to establish whether or not you had a serious injury? – – – Based on my current condition.[14]
[14] TN 48-49
Ø Essentially the plaintiff agreed she kept records of conversations to ensure she had an accurate record and the records kept by her were likely more accurate than her memory of events some years ago. However, the plaintiff had not, she said, taken notes during or immediately after the conference with Ms Shaw on 6 October 2004.
Ø After some to-ing and fro-ing in an attempt to establish whether and the extent to which the plaintiff had referred to any notes or documents prior to swearing her affidavit, the plaintiff attributed the statement made in her affidavit that she would not establish she had suffered a serious injury, to the letter received from her solicitors dated 18 October 2004. The plaintiff again provided a qualified response to the proposition that the letter had not advised that she would not establish a serious injury (“At the time, no”[15]).
Ø The plaintiff agreed she had relied on the letter to make the statement in her affidavit that she would not establish a serious injury yet rejected the further proposition that she may have been mistaken when she swore that she was provided with this advice. The line of questioning and the answers that followed indicated the plaintiff resisted the opportunity to acknowledge that without qualification, the statement in paragraph 18 of her affidavit was erroneous.
Ø On further questioning (“… was it the case that you had a memory of that advice being given to you at that time that you swore the affidavit or was it the case that you were referring or you had to refer to the letter of 18 October 2004 in order to remember being given that advice?”[16]), the plaintiff indicated the letter, not her memory was the source of the statement in the affidavit (“It would be to look at the letter and remember the advice”[17]).
[15] TN 55
[16] TN 59
[17] TN 59
74 At the very least, the last mentioned response indicates the earlier sworn and unequivocal statement concerning the advice received in October 2004, was based on reconstruction, not recall. It did not explain the plaintiff’s reluctance to concede the likely error in the affidavit evidence. I did not, however, conclude that the plaintiff’s evidence as a whole indicated any deliberate attempt to obfuscate. Rather, she appeared confused.
75 The plaintiff’s evidence at hearing about the status of any potential common law claim when the initial legal advice was given, established an essentially different understanding from that held by Ms Shaw. In summary, as a result of the discussions with Ms Shaw and the letter received, in October 2004 the plaintiff likely relevantly understood that: firstly, her statutory entitlements under the AC Act were distinct from any common law entitlements; secondly, she had six years from August 2003 to bring an action for common law damages; thirdly, she needed to gather information for her solicitors to establish statutory and/or common law entitlements; fourthly, following the gathering of information, her solicitors anticipated review of her case, including any potential common law entitlement in three to six months; and fifthly, if as claimed at hearing, the plaintiff believed in October 2004 she would not at that point in time establish a serious injury, she, nonetheless, understood that she had not by then fully recovered and any potential common law claim was subject to review.
76 Allowing for Ms Shaw’s evidence and the very clear wording of the letter of advice, I was satisfied that in October 2004 Ms Shaw had not excluded the possibility of initiating common law proceedings within the time limit advised. In short, it is unlikely that, as claimed in paragraph 18 of the plaintiff’s affidavit, during the initial consultation or by reason of the letter, the plaintiff received preliminary advice to the effect that she would not establish a serious injury for the purpose of bringing a common proceeding.
77 Ms Shaw’s evidence notwithstanding, I could not exclude the possibility that the advice by Mr Simm in November 2004 that surgery was not required contributed to the plaintiff’s belief she did not have a serious injury claim and, at that time, would not be able to pursue a common law claim. The plaintiff’s evidence in this regard was not challenged in cross-examination.
78 The observation I make at this juncture is that, were this the plaintiff’s belief in November 2004, there was no evidence that this belief was controverted by further legal advice from her solicitors following transmission of the doctor’s report to Ms Shaw.
79 It appears that, the question of the plaintiff’s common law entitlement was never reviewed in the period before the solicitors closed their file after confirming settlement of her claim for reinstatement of weekly payments of compensation in or about August 2007. In effect, despite contact about pursuing other entitlements, no further advice was given which may have altered the plaintiff’s belief that she could not establish a serious injury for the purpose of bringing a common law claim. This issue was not reviewed until October 2012, more than three years after the limitation period expired.
The evidence – Further action, if any, prior to the expiry of the limitation period
80 Maurice Blackburn continued to act for the plaintiff until successfully finalising her entitlement to weekly payments of compensation in or about August 2007.
81 As mentioned, the plaintiff’s common law entitlements were not reviewed or the subject of further discussion during this period. Save for some delay in completing a cost agreement to retain the solicitors to act, the plaintiff was proactive in pursuing other entitlements with discussion and legal advice directed to, in the main, reinstatement of the plaintiff’s weekly payments.
82 The evidence of Ms Shaw and the plaintiff for the period to August 2007 is summarised in the following points:
Ø On 19 January 2005 the plaintiff was advised by telephone about the conciliation process for reinstating her weekly payments of compensation.
Ø In May 2005 the plaintiff wrote to Ms Shaw advising her that Maurice Blackburn would be retained if the plaintiff, who was assisted by WorkCover Assist, was unable to resolve the dispute. She sought assistance with a discrimination claim. The plaintiff’s discrimination enquiry was referred to another section of Maurice Blackburn. She, nonetheless, attended VCAT unassisted and resolved this additional dispute during 2005.
Ø During November 2005 there was further contact and discussion concerning legal action for reinstatement of weekly payments. The plaintiff advised Ms Shaw she was not working due to her back injury. She wanted to pursue legal action. Ms Shaw sent another costs agreement and medical authorities. There was further correspondence from the solicitors and/or discussion with Ms Shaw between 27 January 2006 and the return of a signed costs agreement and medical authorities on 9 May 2006. In her evidence the plaintiff attributed the delay in finalising the retainer to a number of factors: she had three children, she was not working and was concerned about costs and the risks associated with court action and, she expected to recover and return to work. In addition to opening a file for the compensation claim, the solicitors recommended the plaintiff first refer a separate claim for medical expenses for purchase of a mattress to the Accident Compensation Conciliation Service.
Ø In about June 2006 the plaintiff commenced part-time employment organising bookings for conferences and tourism for Yarra Valley and the Dandenongs Conference and Meetings Network. On 11 July 2006 Ms Shaw was advised the plaintiff had found new employment.
Ø Between August 2006 and issuing a complaint in the Magistrates’ Court on 24 November 2006, the plaintiff and her solicitors attended to preparation of the complaint.
Ø Between November 2006 and settlement of the plaintiff’s claim for weekly payments on 30 July 2007, various steps were taken in pursuit of this complaint. The plaintiff retained counsel and underwent further medical assessment. Notably, solicitors, Lander & Rogers were originally instructed and acted for the VWA in the Magistrates’ Court. Settlement involved payment of weekly compensation for 52 weeks from 4 March 2004, together with the plaintiff’s costs.
Ø Having, on 6 August 2007 confirmed the plaintiff’s entitlement to weekly payments was finalised, by letter dated 18 October 2007 the solicitor advised the plaintiff her file had been closed. It was common ground that there was no mention of the plaintiff’s common law entitlements or the limitation period. The plaintiff relevantly deposed to her state of mind and the factors that contributed to this at the time, as follows –
40. … At this stage I did not expect to have further dealings with Maurice Blackburn. I was back at work. I was managing my injury. As I understood it, I did not have a serious injury and could not pursue common law damages.
Ø It was apparent from the evidence as a whole that, even after the injury had settled, the plaintiff’s condition remained symptomatic and required physiotherapy and medical treatment on an as needed basis. Under cross-examination the plaintiff explained that, when advised the solicitor had closed her file, she had been managing her condition (involving restrictions on performing housework and difficulties in personal care, such as cutting her own toenails and tying her shoelaces) by swimming up to five times per day and with pain killing and sleeping medication.
83 It was submitted on behalf of Carter Holt that, at this stage, solicitors acting prudently would have followed up with further advice on the common law claim. Arguably, prudent solicitors, experienced in personal injury law, might have reviewed any potential common law entitlement, particularly where this course had been recommended when preliminary advice about the plaintiff’s statutory and common law entitlements was given in October 2004. As against this proposition there is no evidence to suggest that the plaintiff’s known disability at any time before Maurice Blackburn closed the compensation file, should have alerted the solicitors to the possibility that a potential common law claim required further investigation.
84 In all, I did not find the plaintiff’s conduct in this period unreasonable. Rather, I formed the view the finalisation of the compensation claim was an appropriate occasion for her solicitors to revisit the issue of the plaintiff common law rights, if only to confirm the strengths or weaknesses of any potential common law claim and to remind the plaintiff of the time limit and of her obligation to act to protect any common law position should her condition worsen.
85 The observation I make it this juncture is that, the plaintiff, who had until then actively pursued various avenues of compensation, satisfied me that nothing had changed either medically or in the legal advice given to disabuse her of the view held about her ability to establish a serious injury for the purpose of bringing a common law claim or to remind her of the time limit. In my view, this was not, as submitted on behalf of Carter Holt, a case of the plaintiff simply resting on her rights. If anything, in late 2007, the plaintiff’s conduct in not acting to protect her common law position evidenced an ongoing belief that she did not have a serious injury for the purpose of bringing a common law claim.
86 Between the closing of the compensation file and the expiration of the limitation period the plaintiff suffered a flare-up in back pain which required further treatment. The evidence in this regard is summarised in the following points:
Ø The plaintiff deposed that, despite persistent back problems, she continued working. In about 2008, her part-time role changed to Business Development Co-ordinator.
Ø During 2008 the plaintiff found new employment with the Lilydale Agricultural and Horticultural Society. This employment was full-time in the lead up to the Lilydale Show in November 2008. The plaintiff deposed she coped well with the longer hours until back pain required further treatment.
Ø The plaintiff described flare-ups in pain from time to time, including suffering a tearing sensation while bending to clean chairs at home. On this occasion the plaintiff required physiotherapy and medical treatment. Under cross-examination the plaintiff described this episode as an exacerbation of the 2003 injury, involving a worsening of symptoms (“Just like in 2003”[18]) but not as severe as those experienced in 2003. The symptoms had, she said, settled and plateaued after the 2001 incident. However, the plaintiff said she suffered symptoms “continuously” with good and bad days.[19] The copy claim form dated 2 June 2011 (produced by the plaintiff at hearing) records the flare-up incident as having occurred on 24 November 2008, with a claim made in 2009.[20]
[18] TN 30
[19] TN 31
[20] Exhibit A3
Ø The plaintiff agreed that following the 2008 incident the overall level of her pain increased.
Ø Whilst, under cross-examination the plaintiff also agreed with additional propositions to the effect that, as a result of this “increase in pain”,[21] she had been referred to pain management specialist, Dr McCarthy and to neurosurgeon, Mr D’Urso, other evidence suggests that treatment by these specialists probably commenced in 2010 and 2011 respectively, after the expiration of the limitation period.
Ø The plaintiff gave evidence that before October 2012, from time to time, she sent emails to Ms Shaw informing her of the progress of her back condition. At hearing, in response to a request to produce these, the plaintiff produced a bundle of emails dated between 5 March 2009 and December 2011. The emails were not the subject of cross-examination or tendered. However, the plaintiff’s evidence during re-examination suggests that the email correspondence to which she referred, had included email correspondence on 10 February and 15 February 2011 notifying Ms Shaw of a proposal for surgery and further email correspondence on 4 July and 5 August 2011 referring to the surgery performed on 23 July 2011.
Ø Ms Shaw deposes that, she had not opened a new file after contact from the insurer, CGU in March 2009 or after exchanging email correspondence with the plaintiff and giving advice between 5 March 2009 and 27 July 2009. This contact, she said, related to an exacerbation of the plaintiff’s back injury at home and a pending conciliation conference to determine the plaintiff’s new claim for medical expenses. Ms Shaw does not mention any notification of surgery in 2011, whether before or after the plaintiff underwent surgery in 2011.
[21] TN 32
87 In summary, it appears that, whilst in 2009 the plaintiff independently pursued her entitlement to medical expenses arising from an exacerbation of the back injury originally suffered in 2003, she continued to communicate some information to her solicitor about her back condition after the compensation claim was finalised in about August 2007 and before the limitation period had expired. Again it was common ground that the plaintiff’s common law entitlements were not revisited by the solicitors.
88 The observation I make at this juncture is that there was no evidence to suggest that the plaintiff sought or required regular medical or other treatment for her back symptoms in the period between 2004 and the exacerbation episode in November 2008. The evidence of attendances for medical investigation or treatment contained in Exhibit A1 and the evidence summarised so far, indicates as much.
The evidence – Further action, if any, until seeking legal advice on 31 October 2012
89 In the period between August 2009 and October 2012 the condition of the plaintiff’s back deteriorated. The evidence relating to the condition of her back and the seeking of further advice is summarised in the following points:
Ø Based on Exhibit A1 and the plaintiff’s affidavit, it appears that between February and May 2010, Dr McCarthy obtained up-to-date MRI scans and arranged for bilateral radiofrequency denervation procedures. CGU apparently funded this treatment. The plaintiff deposes two of the procedures provided good results, but not the third.
Ø Without indicating when, the plaintiff deposes she resigned from her employment with the Lilydale Show because she felt it interfered with her recovery. She took up temporary data base and entry work for about six months. However, the problems with her back persisted.
Ø The plaintiff first saw Dr D’Urso on about 1 February 2011. He recommended immediate fusion surgery, which the plaintiff hoped would alleviate a lot of her problems.
Ø It appears that new claims submitted on advice from CGU against the Lilydale Show and against Network were rejected. Although at some later stage CGU approved the lumbar spine L4-5 interbody fusion and rhyzolysis surgery subsequently performed by Mr D’Urso on 23 July 2011. There followed a period of rehabilitation and recovery with further radiological investigation.
Ø Whilst surgery had improved her back pain, the plaintiff deposes she continued to experience flare-ups of pain brought on by prolonged sitting or performing domestic activities. Throughout 2012 the plaintiff continued to attend Dr Tate and Mr D’Urso for treatment and underwent further CT investigation of her back on 8 August 2012.
Ø The plaintiff underwent funded retraining and returned to employment performing data entry and reception work for one month in about April 2012. She deposes she struggled with this work. As I understood the material before the Court, apart from this short period of employment, the plaintiff has not worked since then.
Ø Apparently the plaintiff’s husband was involved in a transport accident in 2012. A conference was arranged with Ms Shaw on 31 October 2012 at which both claims were discussed. The plaintiff deposes she advised Ms Shaw about her surgery and the effects of the injury, at which time Ms Shaw recommended the plaintiff consider common law proceedings. Whilst Ms Shaw had no independent recollection of or record of the conference with the plaintiff, the letter dated 9 November 2012 from another solicitor, Ms Lees, confirms this conference took place and establishes that the solicitors were asked to pursue the plaintiff’s statutory and common law entitlements.
Ø Under cross-examination the plaintiff agreed her back condition had worsened considerably in the lead up to surgery. The plaintiff attributed the failure to return for legal advice at any time between the exacerbation of her back condition in 2008 and 31 October 2012 to her belief that she needed to have a serious injury and to her understanding that she should contact Ms Shaw if she had surgery. The plaintiff, however, further indicated she had forgotten about time limits in the interim. It was not put to the plaintiff that she intentionally ignored the limitation period.
90 Whilst there was no evidence to support the contention that in 2004 the plaintiff had been advised to return for legal advice if she had surgery, I have accepted that a combination of factors probably impacted on the plaintiff’s appreciation of her position. One was her belief that absent surgery she would not establish a serious injury. Another was the failure of the solicitors to follow-up and review her common law entitlements at any time, despite acting for and advising on other entitlements and despite intermittent contact with her before the expiration of the time limit. A further factor was the plaintiff’s likely failure to recall all of the legal advice received. The plaintiff’s evidence was that, by the time she suffered the exacerbation injury in November 2008, she had forgotten the advice about the time limitation.
91 In my view, the evidence supports a finding that the plaintiff probably forgot the time limit, rather than intentionally ignored the earlier advice in this regard. In reaching this conclusion, I took into account the plaintiff’s conduct in pursuing other avenues of compensation to which she believed she was entitled in the years since suffering injury in August 2003. If anything, the plaintiff’s conduct in this period in not also pursuing further advice regarding any common law entitlements was consistent with an ongoing belief that she would not also establish a serious injury in the absence of surgery and, without being reminded of this, a failure to recall the time limit.
92 As already noted, there is no evidence that the solicitors responded when advised by the plaintiff in 2011 of the proposal for surgery and later that she had undergone surgery. This evidence does not establish inaction on the part of the plaintiff. In my view, the plaintiff was entitled to rely on her solicitors for a response at the time. There is, however, little point in speculating about why, on learning of these matters during 2011, the solicitors failed to initiate further discussion of the plaintiff’s potential common law entitlements, notwithstanding the expiry of the time limit.
The evidence – Steps taken to pursue common law entitlements between November 2012 and issuing proceeding
93 The correspondence from Ms Lees enclosed another costs agreement. Importantly these documents establish that, this time, the plan was to pursue both statutory and common law entitlements. The plaintiff was asked to provide certain documents and authorities. For reasons not explained at hearing, whilst confirming a six year time limit for bringing a common law claim in respect to the injury suffered in August 2003, the letter dated 9 November 2012 advised the plaintiff she had until 1 November 2013 to issue common law proceedings.
94 Whilst at hearing, the plaintiff was at a loss to explain the more than four month delay in providing the documents requested, I infer that, at the time, the plaintiff’s conduct was influenced by the advice that the time limit expired in November 2013. The anomaly in the advice given was not noted until Ms Lees took leave of absence and Mr Parrish assumed the conduct of the file on 3 June 2013.
95 The first Parrish affidavit and the Shaw affidavit tell us that, on or about 29 July 2013, they discussed Mr Parrish’s concern that the time limit had already passed. It was not clear from either affidavit whether Mr Parrish had been mollified in this regard by Ms Shaw’s view that, in the circumstances of this case, the VWA was unlikely to rely on this defence. Another month, nonetheless, passed before, on 28 August 2013, Mr Parrish met with the plaintiff.
96 Remarkably, given the importance of explaining the reasons for any delay, neither the first Parrish affidavit or Mr Parrish’s letter to the plaintiff dated 16 October 2013 specifically address whether the time limit was discussed in conference or at any later time. The letter confirms more generally discussion of statutory benefits and the plaintiff’s potential common law damages claim without any mention of the time limit. The letter does recommend that the plaintiff pursue a common claim against Network.
97 Under cross-examination, the plaintiff recalled discussion of the time limit mentioned in the letter dated 9 November 2013, but could not recall whether, when she received the letter dated 16 October 2013, she had at “the back of her mind” the advice that proceedings had to be brought by 1 November 2013.[22]
[22] TN 38
98 The plaintiff could not explain why it took more than a month for her to return the signed costs agreement on 24 November 2013.
99 All of the abovementioned matters left me with some reservations about the extent to which the plaintiff understood, firstly, that the advice about the time limit received nearly a year earlier had been erroneous and, secondly, that she should act without further delay to pursue her common law entitlements. That said, I proceeded on the basis that the primary responsibility for any unexplained inaction in pursuing the plaintiff’s common law entitlements after 31 October 2012 must rest with the solicitors who were instructed to proceed on that date.
100 Between January 2014 and service of the section 134AB application on 22 April 2014 information was gathered and finalised. Counsel conferred with the plaintiff and drew the affidavit supporting this application.
101 Lander & Rogers, who now also represent Network in the common law proceeding, forwarded the VWA’s certificate dated 15 August 2014. As mentioned the VWA consented to proceedings for pain and suffering damages only in respect to injury alleged to have been sustained throughout the course of the plaintiff’s employment with Network and, in particular, on 18 December 2001, 27 August 2003 and 28 August 2003.
102 As earlier mentioned, the statutory conference and processes were completed during November 2014 and the Writ and statement of claim were filed on 23 December 2014.
103 Section 134ABA of the AC Act relevantly provides that, for the purpose of calculating the period of time under the Act within which proceedings permitted by and in accordance with section 134AB may be commenced, the period between issuing a serious injury application under that Act is to be disregarded. Accordingly, had a serious injury application been made within the six-year time limit, the 10 months or so before the filing of the Writ would be disregarded. The steps taken in obtaining a certificate during 2014, nonetheless, account for some of the delay in filing the Writ after the solicitors were instructed to proceed on 31 October 2012.
104 The first Parrish affidavit provides a summary of the steps taken in the common law action so far. As mentioned in their defences dated 20 March 2015 and 17 April 2015 respectively, Carter Holt and Network each raise the limitation defence.
105 On 6 May 2015 Mr Parrish wrote to Lander & Rogers and to Carter Holt’s solicitors, Moray & Agnew, seeking confirmation that each defendant intended to rely on the limitations defence and notifying his instructions to make this application for extension. Only Ms Letcher responded. On 22 May 2015, she advised by telephone she was seeking instructions on the limitation issue.
106 In the meantime, the separate section 138 recovery proceeding was filed and resolved by 3 July 2015.
107 On 28 May 2015, the plaintiff served Notices for Discovery on each defendant. By letter dated 9 July 2015, Carter Holt notified delay in providing an affidavit due to a number of factors: difficulty in locating relevant records, noting also that Network was in liquidation; uncertainty about whether draft handbooks were in use during the period of the plaintiff’s employment; and loss of “a significant amount of documentation”, ostensibly as a result of a takeover in 2005.[23]
[23] The second Parrish affidavit, Exhibit CP-7
108 On 6 November 2015 Carter Holt served an affidavit of documents sworn by the Manager, Claims & Injury Services (Australia & New Zealand), John Stefanovski. Schedule 1 of the affidavit contains a small number of undated Carter Holt documents. These documents were undated and variously described as: employee information booklet; Woodlogic handbook; Wood Products induction manual; induction checklist training session plan reference; contractor handbook; and casual staff induction checklist. I expect the description in the Schedule 1 of correspondence and copy correspondence between the lawyers for the parties as having “No date” is an error.
109 Mr Stefanovski’s explanation for the paucity of documentation discovered is found in the expression of his belief in paragraph 6 of Schedule 1 (and largely repeated in paragraph 2 of Schedule 2) that: “documentation which may previously have been held by the second defendant was lost or destroyed after a corporate buyout in 2005” and further that: “any records relating to the employment of the plaintiff with the second defendant may have been lost or destroyed at this time, or have been archived and cannot be located”.
110 For the purpose of this application, the statements made in Mr Stefanovski’s affidavit fail to adequately explain the whereabouts of Carter Holt’s relevant documentation. Moreover, the only evidence before the Court of any corporate takeover or buyout in 2005 relates to Network’s business. The Bloom affidavit exhibits a copy of a historical company extract which indicates that the company operated as Network Recruitment Services Pty Ltd until Seawind Investments Pty Ltd was registered on 13 April 2005. This company was deregistered on 27 October 2007. The Langley affidavit, sworn by a former Director, confirms the sale and deregistration of Network in 2005 and October 2007 respectively.
111 If Carter Holt was also involved in a takeover or corporate buyout in 2005 this and its impact on the company’s record keeping was not adequately explained by any of the affidavit material filed on behalf of Carter Holt.
112 The Letcher affidavit sworn on 4 December 2015, provides some further information about Carter Holt’s documentation, yet it too fails to satisfactorily explain the fate of Carter Holt’s records other than its computerised data records. Among other things, Ms Letcher deposes as follows:
3. I am informed by John Stefanovski, the Manager, Claims and Injury Services, for the second defendant, and believe, that the second defendant has not been able to locate any documentation relevant to the plaintiff’s alleged accidents and injuries in 2001 and 2003, or to her employment with the first defendant at the second defendant’s Box Hill office, and at her home in Healesville.
4. I am informed and believe that the second defendant was involved in a take-over in about 2005. Since the take-over and subsequent corporate re-structure there have been a number of systems upgrades, although these relate more to data bases and software rather than records such as employment records. I am informed and believe that the reason that the second defendant cannot locate any records relating to the plaintiff’s employment is that it has a 10 year data retention policy, and, although it would have archive documents such as the plaintiff’s employment records, it is unable to retrieve any computer records more than 10 years old.
5. I am informed by John Stefanovski and believe that the only documentation which the second defendant has been able to locate is from the period prior to 2005 is ‘standard form’ material, such as an induction manual and contractor information forms. These documents have been discovered by the second defendant, but I am instructed that the second defendant is unable to say whether any of this material was in use at the time the plaintiff says that she was employed with the second defendant at its Box Hill office, and from her home in Healesville.
113 On 28 September 2015 Network produced an unsworn affidavit and forwarded copy documents requested by 5 October 2015. As mentioned, this affidavit contains extensive documentation relating to particularly the WorkCover claims.
114 As to Network’s discovery, according to the Bloom affidavit, former company director, Mr Langley advised on 4 December 2015 that he had recently found further documents. These are not mentioned in his affidavit sworn on 7 December 2015.
115 At this juncture, three short points can be made regarding any prejudice other than general prejudice due to the passage of more than 12 years between the accrual of the cause of action and the filing of the extension application on 26 October 2015.
116 Firstly, the defendants’ discovery is inadequate and/or incomplete. Secondly, extensive medical and WorkCover records, including investigative material and various employment documents likely remain available for the purpose of defending the proceeding.
117 Lastly, if, as claimed, employment documents, specifically records relating to manual handling and safety procedures and/or employee injury in the years between 1998 and 2003, have been lost/destroyed or archived as the result of company takeover/s or buyouts in 2005, it is hard to see how, as distinct from evidence of loss of witnesses or the fading of witnesses’ memories, an inability to access documentary records after 2005 is attributable to delay by the plaintiff in pursuing a common claim within the time limit.
118 I have already commented on Ms Anderson’s evidence regarding the archiving of documents, it follows from the matters already canvassed that Carter Holt did not discharge its evidentiary burden concerning specific prejudice arising from loss/destruction/archiving of its records. Importantly, I was not satisfied Carter Holt had made appropriate enquiries of witnesses to establish their recollection of any risk assessment of the workplace or procedures for safe manual handling practices during the relevant period.
119 In summary, to the extent that there were periods of delay after the plaintiff’s solicitors were instructed to proceed on 31 October 2012, these were not inordinate and should not be visited on the plaintiff, who was entitled to rely on her solicitors’ advice and to rely on them to progress her claim without delay. Furthermore, I could not be satisfied that prejudice to Carter Holt through the loss or destruction of records was caused by these further periods of delay.
Findings
120 As required, I have considered all of the competing considerations revealed by the evidence adduced, including the matters to which section 23A(3) of the Act directs attention and, to the extent this was discernable, any likely prejudice to Carter Holt. My findings as to contested matters are summarised in the following paragraphs.
Paragraphs (a), (e) and (f) – the length and reasons for delay; the extent to which the plaintiff acted promptly; and the steps taken to obtain legal advice
121 The delay in initiating the plaintiff’s common law claim is substantial. I have already discussed the various periods over which delay occurred and to what extent, if any, delay was attributable to the plaintiff’s conduct and whether her conduct was, objectively speaking, unreasonable.
122 The submissions made in support of granting an extension of time relied in part on the absence of evidence of a viable serious injury claim prior to the plaintiff undergoing surgery on 23 July 2011 and on the admission by Carter Holt that, having inspected the file of the plaintiff’s solicitors, no recorded note was found stating that the plaintiff had a viable or arguable serious injury claim before undergoing surgery in July 2011.[24]
[24] TN 70-71
123 Authority tells us, however, that the inquiry as to the matters contained in (a), (e) and (f) of section 23A is directed to the plaintiff’s state of mind and her actions in ascertaining or protecting her rights. The likely success of any earlier serious injury application is not the issue. Rather, the Court must examine the plaintiff’s actions in the context of pursuing her common law claim, including the steps taken to secure a serious injury grant.[25] The question of the plaintiff’s pursuit of a serious injury application is, nonetheless, relevant to determining whether the delay is inordinate.[26]
[25] Davies v Nilson [2015] VSC 584, [47]
[26] Ibid [49]
124 In this case, the plaintiff satisfied me that after receiving initial advice about her common law rights, until undergoing surgery in July 2011 she continued to believe that she could not establish a serious injury as a prerequisite to making a claim at common law. In the circumstances described by the plaintiff, her belief in this regard was reasonable. Moreover, having maintained contact with the solicitors who provided the original advice and acted for the plaintiff in respect to her compensation claims, in my view it was reasonable for the plaintiff to have relied on the solicitors with whom she dealt over many years to revisit their earlier advice.
Paragraph (b) – prejudice
125 The plaintiff properly conceded general prejudice arising from the passage of many years since the accrual of the cause of action. Moreover, Carter Holt relies on the fact that it did not receive notification of the serious injury and common law proceedings until 2014.
126 I have already commented at length on the claimed prejudice arising from loss/destruction or archiving of documentary records and from the fading of witnesses’ memories.
127 I was not, however, satisfied the degree of prejudice established by the material before me would lead to an unfair trial.
Paragraph (f) – any prospective claim against the solicitors
128 The right, if any, of the plaintiff to bring an action against her solicitors for any failure to initiate a proceeding within time is a relevant consideration in determining whether to grant the extension sought.[27] The weight to be given to this consideration depends upon the circumstances of this case.[28]
[27] Ibid [43] and see Tsiadis v Patterson (2001) 4 VR 114, [27]-[28] and Andresakis v Alexus Holdings Pty Ltd [2006] NSWCA 294.
[28] Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517, [86]
129 I formed the view that the evidence does not indicate a strong case in negligence against the solicitors, despite some evidence of inactivity on their part and, more specifically, their failure to revisit the question of the plaintiff’s common law entitlement at any time before closing the compensation file in late 2007. The circumstances of this case are readily distinguishable from those which led to dismissal the application for extension in Gordon v Norwegian Capricorn Line (Australia) Pty Ltd.[29] It follows that I did not give particular weight to this factor in determining whether to grant the application.
[29] Ibid
Conclusions
130 For the reasons articulated and having considered all of the competing considerations, the plaintiff satisfied me that a fair trial of her common law claim could be had. In short, as required, the plaintiff satisfied me that it is just and reasonable to extend the time limit.
131 Subject to hearing from the parties I propose to order that the time for bringing this proceeding is extended to 23 December 2014. I will hear submissions on any further orders sought.
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