Pickett v Westaff (Australia) Pty Ltd
[2021] VCC 1104
•13 August 2021
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL List
Case No. CI-19-05681
| LEONIE PICKET | Plaintiff |
| v | |
| WESTAFF (AUSTRALIA) PTY LTD (ABN 71007654131) | First Defendant |
| and | |
| FUJI XEROX DOCUMENT MANAGEMENT SOLUTIONS PTY LTD (ABN 74000553284) formerly trading as Salmat Document Management Solutions Pty Limited | Second Defendant |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 July 2021 | |
DATE OF DECISION: | 13 August 2021 | |
CASE MAY BE CITED AS: | Pickett v Westaff (Australia) Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1104 | |
REASONS FOR DECISION
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Subject:ACCIDENT COMPENSATION – LIMITATION OF ACTIONS
Catchwords: Where specific prejudice alleged through loss of documents - Whether just and reasonable for limitation period to be extended
Legislation Cited: Limitation of Actions Act 1958; Accident Compensation Act 1985; Occupational Health and Safety Regulations 2007
Cases Cited:Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; Clark v McGuiness [2005] VSCA 108; Transport Accident Commission v Murdoch [2020] VSCA 98; Tsiadis v Patterson (2001) 4 VR 114; Delai v Western District Health Service [2009] VSC 151; Cowie v Sec Pryse v Sec [1964] VR 788; Davies v Nilsen [2015] VSC 584; Koumorou v State of Victoria [1991] 2 VR 265; Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517
Decision:Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram QC with Mr G Worth | Slater and Gordan |
| For the First defendant | Ms B Myers | Thomson Geer |
HER HONOUR:
1In about 2007, Leonie Pickett was employed by the first defendant (Westaff) on a casual basis to perform document preparation and scanning work for the second defendant (Salmat). In late 2007, Mrs Pickett was assigned to work on digitising old Department of Defence files from a number of military campaigns, including the Boer War. This task required Mrs Pickett to remove documents from heavy book binders with metal brackets, which were often stiff and rusted and required a significant amount of force to open. After the documents were scanned, she was then required to replace the documents in the same binders and force the brackets back into position.
2By about March 2008, Mrs Pickett was suffering pain over the front and back of her right shoulder and had difficulty lifting and moving her shoulder. Mrs Pickett lodged a Workcover claim with respect to her right shoulder in about March 2009. In late 2010, she had shoulder surgery. Mrs Pickett’s employment with Westaff continued until about 2010 or 2011, when she became a permanent full-time employee of Salmat. She continued to work for Salmat until the end of 2014, when she ceased working and commenced receiving Workcover benefits.
3This proceeding was commenced by Mrs Pickett against Westaff and Salmet on 27 November 2019.
4In this application, Mrs Pickett applies under s23A of the Limitation of Actions Act 1958 (the Act) for an extension of the time within which she can bring an action against Westaff. Mrs Pickett does not seek an extension of the time within which she can bring an action against Salmat as, by the time the application came on for hearing, Salmat had abandoned its limitation of actions defence.
A preliminary issue
5It was common ground that, for the purpose of calculating whether the limitations period had expired, the relevant period:
(a) commenced on the date Mrs Pickett’s cause of action was complete;
(b) ended on the date when Mrs Pickett lodged an application for a serious injury certificate (4 March 2019); and
(c) was paused from at least 17 February 2014 (when Mrs Pickett’s solicitors lodged an impairment benefit claim form on her behalf) until 26 November 2017 (which was 30 days after Mrs Pickett was notified of the decision of the Medical Panel on the impairment benefit claim).
6However, Westaff and Mrs Pickett did not agree on the date on which the cause of action was complete.
7Mrs Pickett submitted that she relied upon a single cause of action against Westaff, which was not complete until at least the time when she ceased to be employed by Westaff, sometime between the end of 2010 and the middle of 2011.[1] Westaff, on the other hand, submitted that Mrs Pickett’s cause of action against Westaff was complete in March 2008, when her right shoulder was first injured.
[1]The evidence on the precise date at which Mrs Pickett’s employment with Westaff ceased was conflicting. However, nothing particularly turns upon this as, if the cause of action was continuing until the end of 2010, she was not statute barred.
8This is a critical difference. If Mrs Pickett’s cause of action was not complete until at least late 2010, then no extension of time is necessary. If Mrs Pickett’s cause of action was complete in 2008, then she is statute barred and requires an extension of time to bring an action against Westaff.
9At the commencement of the hearing, I queried whether it was within the scope of Mrs Pickett’s summons, which was expressed to be an application for an extension of time, for Mrs Pickett to submit that no extension of time was required. Senior Counsel for Mrs Pickett then made an oral application for the preliminary determination of Westaff’s limitations of action defence.[2] I refused this application, broadly on the grounds that finally determining this issue would have required me to determine the nature and duration of any breach of duty of care by Westaff, which was a matter for trial.
[2] Paragraph 15 of Westaff’s defence filed 4 December 2020.
10I then invited Senior Counsel for Mrs Pickett to consider whether Mrs Pickett wished to persist with her application for an extension of time under s23A of the Act. He indicated that she did. Counsel for Westaff had by that stage accepted that it was not a precondition for the exercise of the power under s23A that the Court first be satisfied that the limitation period had expired. Thereafter, the hearing proceeded solely as an application for an extension of time under s23A of the Act, albeit one made in the context of Mrs Pickett not conceding that her claim was statute barred.
Relevant factors
11Section 23A empowers the Court to extend the limitations period if it is satisfied by Mrs Pickett that it is just and reasonable to do so. Section 23A(3) lists factors which must be considered by the Court:
(a) the length of and reasons for the delay on the part of Mrs Pickett;
(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to Westaff;
(c) the extent, if any, to which Westaff had taken steps to make available to Mrs Pickett means of ascertaining facts which were or might be relevant to the cause of action of Mrs Pickett against Westaff;
(d) the duration of any disability of Mrs Pickett arising on or after the date of the accrual of the cause of action;
(e) the extent to which Mrs Pickett acted promptly and reasonably once she knew that the act or omission of Westaff, to which the injury of Mrs Pickett was attributable, might be capable at that time of giving rise to an action for damages; and
(f) the steps, if any, taken by Mrs Pickett to obtain medical, legal or other expert advice and the nature of any such advice she may have received.
12In the present case, in addition to the statutorily mandated factors, Westaff submitted that the availability of a cause of action against Mrs Pickett’s solicitors was a relevant factor.
13In considering whether to exercise the discretion to grant an extension of time, the Court does not weigh the relevant factors against each other.[3] Rather, the Court must perform an exercise of “synthesis of competing considerations underpinned by the proposition that the plaintiff bears the onus of persuasion.”[4]
[3] Tsiadis v Patterson (2001) 4 VR 114 at 123 [33].
[4] Davies v Nilsen [2015] VSC 584 at [44].
14I address each relevant factor in turn below. Having done so, I conclude that I am satisfied that it is just and reasonable to grant an extension of time in the circumstances of this case.
The length of and reasons for the delay on the part of Mrs Pickett
Parties’ submissions
15Counsel for Westaff submitted that there had been a very substantial delay in making the application for a serious injury certificate and no adequate explanation for that delay. She submitted that no explanation had been proffered by Mrs Pickett’s solicitors for the decision to pursue no-fault benefits rather than pursuing a common law claim; the delay in lodging the impairment benefit claim until 11 days before the expiry of the limitation period; or for the failure to lodge an application for a serious injury application for a further 16 months after notification of the decision of the Medical Panel on the impairment benefit claim.
16Senior Counsel for Mrs Pickett submitted that any delay could be explained by the need to accumulate the evidence in this case, including a large volume of medical reports and the disputes in relation to this and other injuries. He submitted that it could also be explained by Mrs Pickett’s oral evidence that she understood from a conversation with her solicitor in March 2014 that the limitation period was no longer applicable to her claim for injury to her right shoulder and that she did not receive any subsequent advice to the contrary.
Analysis
17For the purposes of this application I have assumed, in favour of Westaff, that the cause of action accrued on about 1 March 2008.[5] The application for a serious injury certificate was not made until some 11 years later, on 4 March 2019. Westaff accepted that the relevant period of delay ended on this date.[6] This is a significant delay, but it is not of the same order as cases such as Brisbane South Regional Health Authority v Taylor;[7] Prince Alfred College Incorporated v ADC[8] or Clark v McGuiness.[9]
[5] If I accepted Mrs Pickett’s submissions, no extension of time would be necessary.
[6] Westaff’s Outline of Submissions dated 12 July 2021, paragraph 25.
[7] (1996) 186 CLR 541.
[8] (2016) 258 CLR 134.
[9] [2005] VSCA 108.
18Within this 11 year period, over 3½ years was taken up with the determination of Mrs Pickett’s impairment benefit claim. This period is explained by the mechanisms of the Accident Compensation Act 1985 (Vic). If this period is subtracted from the 11 years, the relevant period of delay is approximately 7½ years.
19Under cross-examination, Mrs Pickett gave evidence that she first consulted her solicitors in relation to her right shoulder in February 2013. She accepted that she was told at the first meeting with her solicitors, or shortly afterwards, that she had six years to bring a claim for her injuries. She also accepted that she received a letter dated 26 February 2013 from her solicitors, which advised her that the last date she could bring a claim for damages for her right shoulder injury was 28 February 2014.
20However, Mrs Pickett said that before this period had expired, she had had a telephone conversation with her solicitor in which she was advised that because a “document” had been put in, the time period was extended “indefinitely”[10] and there was now an “unlimited time”[11] to bring a claim. Mrs Pickett said she was not told that there would be a time when the time limit would apply again.[12] She also said she had not received any further advice from her solicitors about time limits since that conversation. The next she recalled hearing of time limits was when she received a letter from her solicitor saying that the limitations had exceeded and it would be necessary to “make an appeal to the court.”[13]
[10] T29, L4-10.
[11] T14, L27-31.
[12] T29, L11-19.
[13] T29, L27; T30, L1-21.
21Under re-examination, Mrs Pickett explained that she understood that the document or form, which had been submitted by her solicitor, froze the limitation period in the sense that it left it open to her to bring her claim in relation to her right shoulder at a later time.[14] She also explained that she left the day to day running of her case in the hands of her solicitors.[15]
[14] T56, L1-13.
[15] T56, L26-29.
22Mrs Pickett impressed me as a credible witness who was doing her best to honestly recall the events of the last 11 years. The delay between her experiencing right shoulder pain in early 2008 and consulting solicitors in February 2013 was not expressly explained in her evidence. However, I accept that for much of this period Mrs Pickett was grappling with both her right shoulder injury and left and right wrist injuries and that, after her shoulder surgery in November 2010, the left and right wrist injuries were more prominent. It appears from the medical reports tendered in evidence that the right shoulder injury only began regaining prominence in the period from mid-2012 to late 2013. In the circumstances, I am satisfied that Mrs Pickett’s delay in consulting solicitors until February 2013 was reasonable.
23I am satisfied that, as a result of a conversation with her solicitor (which most likely occurred on 20 March 2014, after the impairment benefit claim form had been lodged), Mrs Pickett genuinely believed the limitation period had ceased to apply to her claim for damages for her right shoulder injury. It may be that her solicitor intended to convey to her in this conversation that the limitation period had been temporarily frozen by the lodgement of the claim form, rather than permanently removed. The ease with which such a misunderstanding might arise was demonstrated by Mrs Pickett’s somewhat confused evidence in re-examination on the issue of whether or not she understood that there was a “freeze” on the limitations period.
24I am satisfied that Mrs Pickett did not receive any subsequent advice from her solicitors that the limitation period had been re-enlivened after notification of the Medical Panel decision.
25I am satisfied that there was a complexity to Mrs Pickett’s right shoulder claim and the associated medical evidence, particularly as it arose in the context of other alleged injuries. Whilst this complexity does not justify the disregarding of limitations periods, I accept that Mrs Pickett relied upon the advice of her solicitors as to the appropriate timing of any claim and the impact of any limitations periods, and that it was reasonable for her to do so.
26It may be that Mrs Pickett’s solicitors should have advised her upon receipt of the Medical Panel determination in relation to the impairment benefit claim that the limitations period had been re-enlivened. It may also be that they should have advised Mrs Pickett that she ought to make an application for a serious injury certificate within the limitation period. There is no adequate explanation from Mrs Pickett’s solicitors for their failure to do so. It is reasonable to assume in those circumstances that their failure to do so cannot be adequately explained. However, Mrs Pickett is not her solicitors.
27In the circumstances, Mrs Pickett has provided an adequate explanation for her delay in commencing proceedings.
The extent to which, having regard to the delay, there is or is likely to be prejudice to Westaff
Parties’ submissions
28Counsel for Westaff submitted that it was prima facie prejudicial to permit proceedings to be commenced against Westaff outside the limitation period. She submitted that time inevitably erodes memories and the quality of any remaining evidence. She submitted that it was not necessary for Westaff to point to specific evidence, which had been lost because the “unfairness in such a case is often not discernible and can be unknowable”.
29Westaff also relied upon specific prejudice. Counsel for Westaff submitted that Westaff as an employer was under non-delegable duties to Mrs Pickett. The statement of claim pleaded breaches of duty such as failing to instruct the plaintiff properly, failing to supervise her, failing to undertake risk assessments and failing to provide a proper induction; as well as breaches of the Occupational Health and Safety Regulations 2007, such as failing to ensure the risk of musculoskeletal disorder associated with a hazardous manual handling task was eliminated as far as reasonably practicable. Meeting this case would require Westaff to put on evidence from witnesses and documents about what it did and did not do to fulfil these non-delegable duties.
30Counsel for Westaff submitted that all of the relevant documents, including risk assessments, records of attendances, induction documents and toolbox meeting records had been lost since the cause of action accrued, in the following circumstances:
(a) Westaff (along with its entire group of companies) went into liquidation on August 2014;
(b) the liquidator had lost access to Westaff’s electronic documents; and
(c) Westaff’s hardcopy documents had been retained, however a “thorough and appropriate” search of those documents by Westaff’s solicitor yielded no results, the solicitor having been unable to locate any documents relevant to this proceeding, including any risk assessments.
31Counsel for Westaff further submitted that this loss of documents impacted on the reliability of any oral evidence that might be given by those witnesses who had been identified. In the absence of relevant documents, she submitted that Westaff’s witnesses would be unable to refresh their memories.
32Counsel for Westaff submitted that Westaff was effectively left with a “vacuum of meaningful documentation and evidence.” She submitted that in the circumstances, Westaff had properly raised the issue of prejudice and it was for the plaintiff to prove that the evidence did not demonstrate prejudice.
33Senior Counsel for Mrs Pickett submitted that Westaff had failed to put any of the potential witnesses which it had identified on oath; and had instead hidden behind a solicitor’s affidavit. He said that this deprived Mrs Pickett of the opportunity to cross-examine those witnesses to ascertain the true extent of their memory. He also submitted that the Court could not be satisfied that there were no relevant documents in this case in circumstances where the evidence was that there were 2,400 boxes of potential material but Westaff’s solicitor had only examined 18 of them. There had been, he submitted, a “dearth of effort” on the part of Westaff and in those circumstances the Court could not be satisfied that there was relevant prejudice.
Relevant principles on assessing prejudice
34In considering the question of prejudice, I have applied the following principles.
35First, the relevant period of delay for the purpose of assessing prejudice commences from the accrual of the cause of action rather than the expiry of the limitation period.[16]
[16] Transport Accident Commission v Murdoch [2020] VSCA 98 at [83].
36Secondly, it is inherent in the requirement to assess the “extent to which…there is or is likely to be prejudice” that the Court must consider not just established prejudice but also potential prejudice. The Court is not limited to considering only prejudice which is more probable than not to occur. Possible prejudice, and the likelihood it will occur, is also a relevant factor.[17]
[17] Tsiadis v Patterson 4 VR 114 at 120 [23].
37Thirdly, there is a general presumption of prejudice that arises when proceedings are commenced outside a statutory limitation period, particularly where there has been a long delay.[18] As said by McHugh J in Brisbane South Regional Health Authority v Taylor:[19]
“…sometimes, perhaps more often that we realise, the deterioration in quality [of justice] is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists…it must often happen that important, perhaps decisive, evidence has disappeared without anybody now “knowing” that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing the proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.”
[18]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 556 (McHugh J); applied in Delai v Western District Health Service [2009] VSC 151 at [23]; Tsiadis v Patterson (2001) 4 VR 114 at [32].
[19] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551.
38Fourthly, a defendant may also seek to rely upon specific prejudice, however, where it does so, it bears the evidentiary onus.[20] If the defendant satisfies that evidentiary onus, the burden rests upon the plaintiff to establish that it is nevertheless just and reasonable to grant an extension of time.
[20]Cowie v Sec Pryse v Sec [1964] VR 788 at 793; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547 and 555-6.
39Fifthly, the gravity of the prejudice suffered by the defendant may be elucidated by consideration of the question of the likelihood that a fair trial can be had. Thus, in Davies v Nilsen,[21] J Forrest J cites the following passage from his earlier decision in Gordon v Norwegian Capricorn Line (Australia) Pty Ltd:[22]
“…in determining whether there is significant prejudice, what is to be considered is whether there can be a fair trial. A fair trial does not mean an ideal trial, but one that is “acceptably fair”. A Court has to make an assessment of what might occur at the trial in terms of whether an acceptably fair trial can be had. The applicant must satisfy the Court that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely.”
[21] [2015] VSC at [108], see also at [110].
[22]Gordon v Norwegian Capricorn Line (Australia) Pty Ltd [2007] VSC 517 at [79]; applied by J Forrest J in Daviesv Nilsen [2015] VSC 584 at [108] and [110].
40It is difficult to envisage a circumstance when the Court would grant an extension of time unless satisfied that it was likely that an acceptably fair trial could be had.[23] Of course, it does not follow from this that an extension of time should be granted solely on the basis that the Court is satisfied that a fair trial is more probable than not. When considering an application under s23A of the Act, the Court must determine whether it is just and reasonable to grant an extension of time having “regard to all of the circumstances of the case”[24] including each of the enumerated factors in s23A(3).
[23]See Clark v McGuiness [2005] VSCA 108 at [87] (Eames JA); Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 555.
[24]Tsiadis v Patterson at 123 [31] (Buchanan JA); see also at Kone Elevators Pty Ltd v Popa [2006] VSCA 26 at [35].
Extent of prejudice in this case
41By the time the application for a serious injury certificate was made, over 11 years had elapsed since March 2008. In that time, self-evidently memories will have faded. Relevant documents will have been lost. There is no requirement on Westaff to identify evidence which has been lost, it is the very nature of the prejudice that it may not be possible to know now how much has been lost. This is the presumed general prejudice suffered by Westaff by reason of delay.
42Westaff has filed two affidavits from its solicitor in relation to specific prejudice. Westaff’s solicitor identifies three former employees of Westaff and a former employee of Salmat who would be able to give relevant evidence at a trial of this proceeding. Although (as is to be expected) none of these witnesses have comprehensive or perfect recall of the events of 2008, taken together it is apparent that Westaff has available to it a significant body of oral evidence concerning the duties performed by Mrs Pickett and Westaff’s procedures, including in relation to risk assessment and site inspection.
43In relation to documentary evidence, each of the three former employees of Westaff has stated that documents such as job placements, worksite inspections, inductions, risk assessments and policies would have been systematically loaded into, and preserved, in Westaff’s electronic database. One of these former employees has stated that hardcopy worksite inspections would have also been retained. In addition, another former employee has stated that she maintained a physical file for each WorkCover matter and all paperwork would have been placed in that file.
44Westaff’s solicitor deposes to having received an email from Westaff’s liquidator which “advised that due to a failure of the Bluestone Group’s servers following KordaMentha’s appointment, they had lost access to all the electronic files and payroll system of the various companies involved, including the first defendant”. This is the sole evidence in support of Westaff’s claim to have lost access to its entire electronic database. This evidence is hearsay. It may be that hearsay evidence is admissible on a s23A application.[25] Mrs Pickett did not object to its tender on those grounds. However, the actual email from the liquidator is not exhibited. There is no explanation of the precise nature of the server failure or of any investigations or enquiries as to the steps which might be required (and likely cost) to reinstate access to the servers.
[25]Scanlon v American Cigarette Company (Overseas) Pty Ltd (No 1) [1987] VR 261 at 269-270; cf Hassan v Noa (No 2) [2021] VSC 339; Cowie v Sec Pryse v SEC [1964] VR 788 at 789.
45Westaff also claims that it is unable to locate any relevant hardcopy documents, aside from:
(a) two documents dating to May 2010 located from the claim files of the Authorised WorkCover Agent;
(b) a worker’s claim for impairment benefits form dated 26 February 2014;
(c) some draft agreements between Westaff and Salmat;
(d) an email dated 13 March 2009 from a Westaff employee to an employee of CGU which states “Westaff have a new claim we would like to lodge in regards to worker Leonie Pickett. The right shoulder injury occurred whilst she was wriggling brackets out of folders and has been persistent since then”; and
(e) one page from a claim for compensation form dated 5 March 2009.
46Westaff’s solicitor deposes to having been provided with a list of 2,400 boxes of archived books and records from Westaff’s liquidator relating to the group of companies to which Westaff belonged. He deposes to having selected 18 of these boxes which he considered “might potentially contain documents relevant to this proceeding”. He stated that he had inspected those documents and had observed some WorkCover files, but could not locate a WorkCover file in the plaintiff’s name; payroll records or timesheets in respect of the plaintiff; or any completed worksite inspections, risk assessments or induction documents relevant to the plaintiff and her alleged circumstances.
47Westaff’s solicitor does not explain the method he adopted for selecting the 18 boxes out of 2,400 which were inspected. There is no evidence that the list of boxes was provided to any of Westaff’s former employees to see if they could assist to identify boxes which might contain relevant documents. Westaff’s solicitor deposes that “it would be a significant cost and time” to inspect further documents in the hope of finding a relevant document. However, no estimate is provided of the likely time and expense required to identify and inspect further relevant boxes.
48Senior Counsel for Mrs Pickett submitted that Westaff ought to have filed affidavits from each of the potential witnesses which it had identified, in order that they could be cross-examined in relation to their recollections. I do not accept this submission. Whilst it may be appropriate for an actual defendant to be cross-examined in a s23A application;[26] to require all other identified witnesses to be cross-examined as to their recollection before trial would be both disproportionate and unfairly prejudicial to the defendant.
[26] See Hassan v Noa (No 2) [2021] VSC 339.
49However, different considerations apply in relation to the existence (or otherwise) of documentary evidence. Westaff submits that it has lost access to its entire electronic database. It further submits that it is unable to locate relevant hardcopy documents, despite the fact that two identified witnesses have stated that relevant hardcopy documents would have been retained. The determination of this application may have the practical effect of bringing to an end any claim by Mrs Pickett against Westaff. The Court is entitled to expect cogent, detailed and specific evidence in support of such a submission.
50It is possible that, as a result of the delay, Westaff has lost documents which may be relevant to its defence in this proceeding. However, I am not satisfied that a thorough and appropriate search for relevant documents has yet been conducted. It is more probable than not that Westaff will be able to locate further relevant electronic or hardcopy documents prior to trial.
51I accept that Westaff has suffered prejudice by reason of delay, including through the presumed fading of memories and the possible loss of documents. However, I find that Westaff is nevertheless likely to have an acceptably fair trial, particularly given:
(a) Mrs Pickett will bear the onus of proof in establishing breach of duty and causation;
(b) Westaff has available to it a number of witnesses who can give oral evidence in relation to Mrs Pickett’s duties and Westaff’s procedures (including in relation to risk assessment and induction);
(c) Westaff has available to it medical evidence, including radiology dating back to 2008 and medical reports dating back to 2009;
(d) Westaff has located an email from one of its former employees dated 13 March 2009, which confirms that Mrs Pickett suffered injury “wriggling brackets out of folders”; and
(e) it is more probable than not that Westaff will be able to locate additional relevant documents prior to trial.
The extent, if any, to which Westaff had taken steps to make available to Mrs Pickett means of ascertaining facts which were or might be relevant to the cause of action of Mrs Pickett against Westaff
52Senior Counsel for Mrs Pickett submitted that Westaff had “made a paltry effort, at best…to supply relevant evidence and relevant witness evidence for the purposes of the plaintiff’s case”. This was effectively a repeat of his submissions in relation to the inadequacy of the plaintiff’s evidence in relation to specific prejudice. I will not deal with this factor further separately.
The duration of any disability of Mrs Pickett arising on or after the date of the accrual of the cause of action
53Senior Counsel for Mrs Pickett relied upon what he described as the ongoing disability of Mrs Pickett.[27] However, there is no evidence that Mrs Pickett was under any legal disability.[28] Even if the term extends beyond technical legal disability,[29] there is no evidence that Mrs Pickett’s disability prevented her from commencing the proceedings. I do not consider this to be a relevant factor in this proceeding.
[27] T71, L6-11.
[28]See s3(2) of the Act (which deems a minor or person of unsound mind to be under a disability) and s23 of the Act (which suspends limitation periods when a person was under a disability when the cause of action accrued).
[29] See Koumorou v State of Victoria [1991] 2 VR 265 at 274.
The extent to which Mrs Pickett acted promptly and reasonably once she knew that the act or omission of Westaff, to which the injury of Mrs Pickett was attributable, might be capable at that time of giving rise to an action for damages
54I have addressed this factor above in relation to the length of and reasons for the delay. I accept that it was reasonable for Mrs Pickett to delay until February 2013 before consulting her solicitors and reasonable for her to rely upon the advice of her solicitors in relation to the timing of her serious injury application.
The steps, if any, taken by Mrs Pickett to obtain medical, legal or other expert advice and the nature of any such advice she may have received
55I accept that there has been a large amount of medical evidence obtained in relation to Mrs Pickett’s injury over the last 11 years, including five Medical Panel opinions. I have already addressed the legal advice she received.
The availability of a cause of action against Mrs Pickett’s solicitors
56Mrs Pickett may have a cause of action against her solicitors. However, that cause of action is complicated by:
(a) the existence of her claim against Salmat in this proceeding, which is not statute barred;
(b) her contention that the limitation period against Westaff has not yet expired; and
(c) the requirement that she establish both negligence by her solicitors and that it caused the relevant loss.
57Mrs Pickett would most likely need to commence separate proceedings to pursue this cause of action. It is also likely that she would need to retain new solicitors in the current proceeding.
58Counsel for Westaff accepted that the strength of this factor depended upon the circumstances of the case and should not be overweighed. As J Forrest J said in Gordon v Norwegian Capricorn Line (Australia) Pty Ltd:[30]
“It follows that a potential claim against former solicitors is a relevant consideration, but that the question of what weight is to be given to it depends on the circumstances; a court must be careful in ascribing weight to the prospect of such a claim, given that the full circumstances surrounding such a claim may not be known. A Court may also take into account the prejudice to the plaintiff in prosecuting the claim against the solicitors as opposed to prosecuting the claim that is potentially statute barred. That prejudice may take several forms – diminution in the value of the claim as well as any added costs and the complexity of the proceeding against the former solicitor.”
[30][2007] VSC 517 at [86].
59Whilst I accept the availability of a claim is a relevant factor, in the circumstances of this case, it does not weigh particularly heavily against the grant of an order.
Conclusion
60In an oft-cited passage in Brisbane South Regional Health Authority v Taylor,[31] McHugh J outlined the important policy considerations underlying limitations periods. Although that case was decided on different statutory provisions, the policy considerations described in that passage apply equally to an application under s23A of the Act. The question of whether Mrs Pickett has established that it is just and reasonable to extend time must be considered having regard to these considerations; and the fact that an extension of time is an exception to the general rule that proceedings must be commenced within the limitations period.
[31] (1996) 186 CLR 541 at 552-3.
61Having carefully considered all of the above circumstances, I am satisfied that it is just and reasonable to grant an extension of time under s23A in this case. I place particular significance on my findings that Mrs Pickett has provided a reasonable explanation for her delay and that an acceptably fair trial is likely notwithstanding the delay. Any prejudice to Westaff arising from the delay is not such that Westaff will be unable to adequately defend itself against Mrs Pickett’s claims in this proceeding.
62I will grant an extension of time under s23A and will hear from the parties in relation to the appropriate form of order, and as to costs.
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Certificate
I certify that these 18 pages are a true copy of the reasons for decision of her Honour Judge Tran, delivered on 13 August 2021.
Dated: 13 August 2021
Jane Le
Associate to her Honour Judge Tran
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