Pugsley v Collins and Pugsley v The Frank Whiddon Masonic Homes NSW

[2008] NSWDC 264

CITATION:	Pugsley v Collins & Pugsley v The Frank Whiddon Masonic Homes NSW [2008] NSWDC 264
HEARING DATE(S):	6 and 7 August 2008
JUDGMENT DATE:	15 August 2008
JURISDICTION:	Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Leave granted to the Plaintiff to extend the time for the filing proceedings numbered 5664 of 2007 to 17 December 2007; 2. Leave granted to the Plaintiff to extend the time for the filing proceedings numbered 1357 of 2008 to 8 April 2008; 3. Order that proceedings numbered 5664 of 2007 and proceedings numbered 1357 of 2008 be heard together. 4. Costs of the respective motions are to be costs in the respective causes.
CATCHWORDS:	LIMITATION OF ACTIONS – findings based on s 60C(2) and s 60E(1) of Limitation Act 1969 and s 151D(2) of Workers’ Compensation Act 1987 – order made after the event nunc pro tunc in relation to proceedings that had been commenced against employer before leave to commence was obtained.
LEGISLATION CITED:	Limitation Act 1969 [NSW], s 60A, s 60C, s 60D Workers’ Compensation Act 1987 [NSW], s 151D(2) Civil Liability Act 2002 [NSW]
CASES CITED:	Atikullah v Sefton (2001) 53 NSWLR 574 Conray v Scott’s Refrigerated Freightways Pty Ltd [2008] NSWCA 60 Dandashli v Dandashli NSWCA unreported 16.12.96 Emmanuele v Australian Securities Commission (1997) 188 CLR 114 Holt v Wynter [2000] 49 NSWLR 128 Jol v The State of New South Wales (1998) 45 NSWLR 283 Schering –Plough v Page [2002] NSWCA 4 Whisprun Pty Ltd v Sams & Ors [2002] NSWCA 394
PARTIES:	In proceedings numbered 5664 of 2007 John Richard Pugsley (Plaintiff) David Collins (Defendant) In proceedings numbered 1357 of 2008 John Richard Pugsley (Plaintiff) The Frank Whiddon Masonic Homes NSW trading as Easton Park Retirement Village (Defendant)
FILE NUMBER(S):	5664 of 2007; 1357 of 2008
COUNSEL:	Ms M Fraser (for Plaintiff in each case) Mr C Jackson (for Defendant in proceedings numbered 5664 of 2007) Mr W Austron (for Defendant in proceedings numbered 1357 of 2008)
SOLICITORS:	Brydens Law Office (for Plaintiff in each case) Stephen Teece (for Defendant in proceedings numbered 5664/07) Hicksons (for Defendant in proceedings numbered 1357/08)

JUDGMENT

Introduction

1. The Plaintiff proceeded on two separate Notices of Motion each seeking limitations relief. The parties consented to these two motions being heard together.

The Proceedings

2. The Plaintiff claims to have been injured in the course of his employment on 5 September 2002. Arising from that injury he filed two sets of proceedings against unrelated defendants.

3. Proceedings numbered 5664 of 2007 “the first proceedings” were filed on 17 December 2007. In those proceedings The Plaintiff alleged negligence against Daniel and Emma Collins trading as D & D French Polishing. The first proceedings relate to an alleged incident at the premises of D & D French Polishing on 5 September 2002. The Plaintiff alleged that in the incident in question he injured his back whilst unloading a heavy desk from his employer’s truck. By their defence filed on 18 March 2008 the Defendants in the first proceedings pleaded a reliance on section 50C (sic) of the Limitation Act, 1969 and contend that the Plaintiff’s action against them is statute barred. On 12 June 2008 the Plaintiff discontinued his claim against Emma Collins however that circumstance is of no consequence to the motion.

4. Proceedings numbered 1357 of 2008 “the second proceedings” were filed on 8 April 2008 and alleged negligence against the Plaintiff’s employer, The Frank Whiddon Masonic Homes NSW trading as Easton Park Retirement Village. The second proceedings relate to the same incident as gave rise to the first proceedings. The defence to the second proceedings was filed on 22 April 2008 and asserts that by reason of the provisions of section 151D of the Worker’s Compensation Act, 1987 the Plaintiff’s claim is statute barred.

Notices of Motion filed by the Plaintiff

5. The Plaintiff’s Notice of Motion in the first proceedings was filed on 12 June 2008. This was followed by the filing of an Amended Notice of Motion on 24 June 2008. The Plaintiff seeks the following relief:

“(1) That time be extended pursuant to Section 60C Limitations Act (sic), 1969 up to and including the date of filing of the Statement of Claim herein;

(2) That the proceedings be consolidated with proceedings under (sic) number 1357 of 2008;

(3) Further and/or other order(sic);

(4) Costs of this Motion be costs in the cause.”

6. The Plaintiff’s Notice of Motion in the second proceedings was filed on 5 May 2008 and seeks the following relief:

“(1) That time be extended pursuant to Section 151D of the Workers’ Compensation Act, 1987 up to and including the date of filing the Statement of Claim herein;

(2) Leave to the Plaintiff to proceed and rely on the Statement of Claim herein;

(3) Further and/or other order(sic);

(4) Costs of this Motion be costs in the cause.”

Background to the limitation issues

7. The time for filing proceedings against any of the Defendants arising out of an incident occurring on 5 September 2002 expired in the ordinary course of events on 5 September 2005.

8. The Plaintiff gave evidence that he reported the occurrence of his injury to his employer’s supervisor on the day it occurred. A claim form was later completed. This resulted in the Plaintiff receiving weekly payments of worker’s compensation benefits from 2 December 2002. These payments have continued until the present time. The Plaintiff’s employment was terminated about one year following his injury. Exhibit “B” shows that as at 14 January 2008 the total of such payments made to or on behalf of the Plaintiff amounted to $241,992.03.

9. The Plaintiff gave evidence to the effect that until September or October 2006, he was unaware that he may have had a right to make a common law claim in respect of his injury and before that time had not realised he could seek legal advice in respect of his potential rights arising from his injury.

10. The Plaintiff gave evidence that in September or October 2006 his wife had told him she had heard what was an obliquely worded radio broadcast of an advertisement drawing attention to the availability of the services of the Plaintiff’s solicitors in connection with financial issues and potential claims. He described how on 6 November 2006 this conversation led him to consult and then engage his solicitor with the result that the proceedings in question were ultimately commenced on his behalf. The Plaintiff’s wife gave evidence that she heard the radio advertisement in question in about September or October of 2006. The Plaintiff gave evidence to the effect that before he consulted his solicitors on 6 November 2006 he did not know he had the right to pursue a negligence claim against any party in respect of his injury.

Challenges to Plaintiff’s evidence concerning unawareness of his right to claim

11. The Plaintiff and his wife were cross-examined about the events giving rise to his claim and his initial unawareness of his right to make a claim. Their evidence was not contradicted or shown to be incorrect.

12. The principal basis of challenge to the credibility of the Plaintiff’s evidence as to his unawareness of his right to claim damages was that many years earlier when he had suffered a previous back injury he had formed the view that such back injury was not work related and therefore he had not sought any compensation from his employer at the time. The challenge presumed, incorrectly, that any potential for the Plaintiff to seek compensation for such an event was based on some sort of legal awareness of what constituted a work related injury. The challenge proceeded on the flawed premise that the Plaintiff ought to have been aware of a presumed right to make a damages claim in connection with the incident of 5 September 2002 by reason of his earlier injury.

13. A further challenge to the Plaintiff’s evidence was made on the flawed basis that as a one-time member of a trade union he was somehow presumed to know the detail of his compensation rights. The denied he had such knowledge.

14. A further challenge proceeded upon the basis that the Plaintiff was generally aware of the fact that around the time he acquired the injury in question there had been much publicity concerning compensation payouts and this presumably would have imputed to him the knowledge that he needed to pursue any claim he might have within certain time limits. The Plaintiff said he believed that his awareness of publicity about such claims related only to motor vehicle accidents.

15. I accept without reservation the evidence given by the Plaintiff and his wife concerning the sequence of events that led him to seek legal advice concerning the events of 5 September 2002. I accept the evidence of the Plaintiff as to his state of knowledge prior to 6 November 2006, namely he was unaware he had a right to make a claim for compensation arising from the injury he sustained on 5 September 2002.

16. In my view the Plaintiff and his wife each gave their evidence in a straightforward manner. Notwithstanding that their evidence was tested by cross-examination I was not left in any doubt about the veracity of their evidence. I find that prior to consulting his solicitors in the manner described the Plaintiff was unaware of his legal rights concerning the incident in question.

17. Accordingly, it remains for me to consider the circumstances of his injury and to examine the issues raised by the statutory framework within which the Plaintiff seeks limitation relief in each of the respective proceedings in order to determine whether the relief sought should be granted in either case.

Brief description of occurrence of the injury in question

18. The Plaintiff stated that he had been asked by his employer to drive a work utility which had been loaded with a heavy desk to the premises of D & D Collins French Polishing in order to effect delivery of the desk for repairs. It has been estimated that the desk weighed at least 135 kgs. The Plaintiff stated that he was told that he could expect a number of men would be available at the delivery destination to assist him with unloading the desk. On arrival he stated that he found that the foreshadowed assistance was not available. Only one other person was available and gave assistance to unload the desk. In the course of unloading the desk from the utility to the ground the Plaintiff stated he assumed a bent back posture during which he felt a popping sensation in his lower back. This injury ultimately resulted in surgical treatment and incapacity for work.

19. In the course of resisting the Plaintiff’s current applications the Defendants suggested that the Plaintiff’s version of events as to the manner of occurrence of the event was not credible. In support of that contention Mr Collins was called to give evidence. His oral evidence contained what he claimed was a recently revived recollection contrary to the terms of his affidavit. He said this revived memory had come to him shortly before he was called to give evidence and he had not told his solicitor of this circumstance because he thought that changing his affidavit would not look good for him in the litigation. I find that explanation incredible and as a result I find myself unable to rely on the evidence given by Mr Collins in this regard.

20. I accept the Plaintiff’s evidence concerning his description of the manner of occurrence of his injury on 5 September 2002 as outlined above.

21. Exhibit “A” contains photographs of the desk identified by the Plaintiff to be the desk he was unloading at the time of his injury. Exhibit “C” is a copy of a tax invoice dated 8 October 2002 from D & D Collins French Polishing to The Frank Whiddon Masonic Homes describing restoration work having been carried out to a desk which tends to corroborate the Plaintiff’s version of events.

22. An undated expert liability report of Neil Adams & Associates was tendered as Exhibit “D”. It is clear from that report that if the liability opinions expressed within the report were accepted at a trial the Plaintiff could secure a liability finding against the defendants in each of the respective proceedings. The author of Exhibit “D” analysed the ergonomic implications of the task in which the Plaintiff was engaged when he was injured. He analysed the mechanism of the claimed injury and he expressed views concerning the foreseeability, preventability and cause of the Plaintiff’s injury. He also identified arguable failures in the system of work in which the Plaintiff was engaged such as could support a finding of breach of the duty of the care owed to the Plaintiff. For the purposes of determining these motions, in the absence of challenges to the opinions in the liability report it is not necessary for me to further analyse this liability material other than to record my view that there is an evidentiary basis to support the argument that the claims brought by the Plaintiff have the potential to succeed at a trial.

Applicable legislation, findings and disposition

The motion in the first proceedings

23. In respect of the first proceedings the Plaintiff seeks leave to proceed pursuant to Section 60C of the Limitation Act, 1969. That section, as explained by Section 60A of the Limitation Act, enables the Court to extend the period of time for bringing a claim for personal injury by 5 years beyond the initial 3 year limitation period in respect of injuries occurring before 2 December 2002.

24. In determining an application pursuant to section 60C it is necessary to consider, so far as they are relevant, the criteria within section 60E (1) (a) to (h) of the Limitation Act 1969. In the course of argument it was conceded that of those criteria the real issue going to the question of the grant of leave was the matter of delay and the explanations for the delay.

25. The Plaintiff’s evidence is that following his injury he remained under medical care and received appropriate treatment as was required. There is no contest that there was a delay between the time of his injury and the time when he consulted legal advice on 6 November 2006. In that period he received weekly payments of compensation. There is no evidence to suggest that prior to 6 November 2006 the Plaintiff had a need to seek legal advice in respect of his injury sustained on 5 November 2002. Consistent with my findings concerning the absence of knowledge on the Plaintiff’s part of his right to make a claim, I find that the delay up to 6 November 2006 is not a disentitling factor to determining whether or not leave should be granted.

26. In respect of the delay between the time when the Plaintiff had the Solicitor’s advertisement drawn to his attention in either September or October of 2006 and until when the Plaintiff consulted his Solicitors on 6 November 2006, I find this period to be immaterial to the questions to be decided in these motions. I infer that in respect of this period it would have taken the Plaintiff some time, of the order of weeks, to consider the implications of the advertisement to his circumstances and to then make contact with the Solicitors and secure an appointment to obtain legal advice.

27. Accordingly, in the first proceedings the remaining issues to be determined concern the delay between 6 November 2006 and the time when the first proceedings were commenced on 17 December 2007, including the subsequent delay in seeking leave to proceed as well as whether the Defendant in the first proceedings would be prejudiced in the relevant sense if leave to proceed was to be granted to the Plaintiff.

28. The unchallenged evidence of the Plaintiff is that after he instructed his solicitors on 6 November 2006 he left it them to pursue whatever claims he may have had available to him. That explanation is entirely reasonable and I accept it. Accordingly, I find that after 6 November 2006 until the present time there was no relevant disentitling delay on the part of the Plaintiff as contemplated by Section 60E of the Act.

29. A question which then arises for consideration is whether, as was argued, there is any relevant delay on the part of the Plaintiff’s legal representatives which would operate as a disentitling factor to the granting of leave to extend time in respect of the first proceedings.

30. Mr Jackson, for the Defendant in the first proceedings, has referred me to Schering–Plough -v- Page [2002] NSWCA 4 which, inter alia, is authority for the proposition that a relevant factor to be considered in such cases is the diligence or lack of diligence on the part of the plaintiff’s representatives quite apart from any delay on the part of a plaintiff.

31. The Plaintiff relied on the affidavit of his solicitor Mr Lee Hagipantelis whose affidavit was sworn on 2 June 2008. Mr Hagipantelis’ unchallenged affidavit describes a course of investigation leading to a conference on 25 July 2007 with counsel, Mr Lidden SC at which time advice was given to the effect that proceedings should be brought against all parties affected by these motions. It is apparent from the evidence of Mr Hagipantelis that a forensic decision was taken to the effect that the first proceedings should not be commenced until the pre-action procedural requirements for bringing a worker’s compensation claim had been completed so that action could proceed against all relevant defendants. I accept that explanation proffered by Mr Hagipantelis as being a reasonable explanation for the delay between 6 November and the time when the first proceedings were commenced.

32. Further, in respect of the period between 6 November 2006 and 25 July 2007, which was the time when the conference was arranged with Mr Lidden SC, no evidence has been called to establish that this period should be characterised as one of unreasonable delay concerning prejudice to the Defendant in the first proceedings. I infer that during this period the Plaintiff’s solicitors were required to make inquiries and conduct investigations as an essential preclude to the briefing of counsel, arranging a conference and providing the requisite certification of merit as a precursor for filing proceedings.

33. Accordingly, in all the circumstances of the case in respect of the first proceedings, I am not persuaded of the merit of an argument that there has been a lack of forensic diligence on the part of the Plaintiff’s legal advisors causing material delay and prejudice. Although there has been an admitted delay between obtaining advice from counsel and filing both sets of proceedings due to a tactical decision of the kind contemplated by Simpson J in Conray -v- Scott’s Refrigerated Freightways Pty Ltd [2008] NSWCA 60 at paragraph 134 and the following paragraphs, I find that there is no evidence that any such tactical decision was productive of prejudice. Further, I do not regard any delay associated with such a decision as amounting to a lack of diligence on the part of the Plaintiff’s legal representatives.

34. The length and reasons for the delay have been explained by the Plaintiff and his solicitor [s.60E(1)(a), (c), (d), (e), (g) and (h)]. The extent of the delay has been a function of the Plaintiff’s unawareness of his rights over the period between 5 September 2008 and 6 November 2006 and in respect of that period, no relevant prejudice to the Defendants has been shown [s.60E(1)(b)]. I am also required to consider whether the conduct of any of the Defendants induced the Plaintiff into a delay in bringing the proceedings [s.60E(1)(f)]. In this regard the Plaintiff’s employer paid him weekly payments of compensation. I find that this factor was instrumental in the Plaintiff not seeking earlier legal advice since, based on his own understanding, he was being paid his entitlements and on his untutored view, he had no outstanding rights that were not being satisfied.

35. In respect of both proceedings, having regard to all the circumstances including the matters requiring consideration in section 60E(1)(a) to (h) of the Limitation Act, 1969 I find that it is just and reasonable that the Plaintiff be given an extension of time in which to bring the first proceedings.

36. Accordingly, it remains to be determined whether the defendant in the first proceedings, Mr Collins trading as D & D French Polishing, has suffered prejudice as a consequence of the delay described.

37. It has been argued on behalf of the Defendant in the first proceedings that a fair trial has been prejudiced by the effluxion of time in this case. The mere effluxion of time and the fact that a trial has to be conducted in possibly less than perfect or ideal conditions with possibly less than the full potential armamentarium of evidence which might have been available if an earlier trial could have been held does not necessarily render such a trial unfair. See Holt -v- Wynter [2000] 49 NSWLR 128 at 142 paragraph 79 per Priestley JA.

38. In this case, in the first proceedings, the starting point for a consideration of whether prejudice has been established is for me to observe that Mr Collins has no written record of the occurrence of the incident in question and this would have also been the position even if proceedings had been commenced within the required three years of the occurrence. By itself this is not evidence of prejudice as this is not the type of case where records that were once in existence were destroyed in the ordinary course of management of archived business records. Secondly, Mr Collins’ recently revived memory of the facts surrounding the loading of the desk as he described in his oral evidence, whilst open to challenge, provides him with a basis for a factual dispute to be ventilated at a trial as to the occurrence of the injury. If Mr Collins has a relevant recollection as he has stated in his evidence that will form the basis for his defence of the claim. This is not a case where documents, which would otherwise be available to Mr Collins are now no longer available to him and could have otherwise been used to aid his defence or to corroborate his recollection to assist him to meet the case sought to be made against him or to enhance the prospects of his evidence being accepted.

39. In my view the evidence has not demonstrated relevant prejudice affecting the Defendant in the first proceedings. Accordingly, I find no disentitling prejudice operates to preclude or disentitle the Plaintiff to an order for the grant of leave to extend the time for filing the first proceedings. I find that it would be just and reasonable to make an order extending time in this case.

The motion in the second proceedings

40. The Plaintiff commenced the second proceedings more than 3 years after his injury. He did so without first obtaining the leave of the Court. In doing so he failed to comply with s.151D.

41. The Workers’ Compensation Act, 1987 provides:

“S.151D

(1) (Repealed)

(2) A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than 3 years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken.

(3) The Limitation Act 1969 does not apply to or in respect of court proceedings to which this section applies.

(4) This section does not apply to the commencement of court proceedings in respect of a claim within the meaning of Part 5 of the Motor Accidents Act 1988 or Chapter 5 of the Motor Accidents Compensation Act 1999 .”

42. The parties did not seek to argue that the incident in which the Plaintiff was injured arose out of the use of a motor vehicle. Accordingly, I do not need to consider subsection (4) of Section 151D.

43. Although sub-section (3) of s.151D of the Act expressly states that the Limitation Act, 1969 does not apply to proceedings to which s.151D applies I propose to have regard to the considerations set out in section 60E of the Limitation Act, 1969 as I believe such considerations provide a reasonable and useful template to serve as a checklist to guide the exercise of discretion under s.151D(2) of the Workers’ Compensation Act, 1987.

44. I have considered the factors required to be considered in Section 60E(1) of the Limitation Act, 1969 in connection with the first proceedings as set out in paragraphs 23 to 39 above. I consider that the same considerations could reasonably be applied an application pursuant to s.151D(2) of the Workers’ Compensation Act, 1987. I find that the analysis of those factors which I have set out as being applicable to the first proceedings apply with equal relevance to the second proceedings so I will not repeat them here. Accordingly, I find that the delay due to the Plaintiff not seeking leave to commence the second procedure at an earlier time and within 3 years of his injury is not a disentitling factor to the grant of leave.

45. The Defendant in the second proceedings has argued that the consequence of the Plaintiff’s failure to comply with s.151D requires that the proceedings be characterised as having been invalidly commenced. On behalf of the Plaintiff it is argued if the commencement of the second proceedings should be characterised as an irregularity for which the Court has the power to make an order nunc pro tunc. The Plaintiff submits the Court should do so because the justice of the case requires that this be done.

46. The Court has wide powers to deal with irregularities in proceedings. That power comes from section 63 of the Civil Procedure Act, 2005 which provides:

“ 63 Directions with respect to procedural irregularities

(1) This section applies to proceedings in connection with which there is, by reason of anything done or omitted to be done, a failure to comply with any requirement of this Act or of rules of court, whether in respect of time, place, manner, form or content or in any other respect.

(2) Such a failure:


(a) is to be treated as an irregularity, and

(b) subject to subsection (3), does not invalidate the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings.


(3) The court may do either or both of the following in respect of proceedings the subject of a failure referred to in subsection (1):

(a) it may, by order, set aside the proceedings, any step taken in the proceedings or any document, judgment or order in the proceedings, either wholly or in part,

(b) it may exercise its powers to allow amendments and to make orders dealing with the proceedings generally.


(4) The court may not take action of the kind referred to in subsection (3) (a) on the application of any party unless the application is made within a reasonable time and, in any case, before the party takes any fresh step in the proceedings after becoming aware of the failure.”

47. I have already reviewed and considered the explanation for the late commencement of the first proceedings. As I have decided that the considerations within Section 60E(1) of the Limitation Act, 1969 are a useful guide to determining the relevance of delay in relation that apply to the second proceedings I need not repeat that analysis here.

48. It therefore remains for me to consider the outstanding issues of whether or not the Defendant in the second proceedings is prejudiced by the late commencement of the proceedings and whether the commencement of the second proceedings should be treated as an irregularity and whether an order should be made curing this irregularity.

49. Ms Webber, the Plaintiff’s supervisor at The Frank Whiddon Masonic Homes gave evidence by telephone. She did so in difficult circumstances. She did not have a copy of her affidavit at the time she gave evidence and she said she was stressed because at the time she was occupied with caring for an ill family member. Apart from some confusion over whether the object in question was a desk or a boardroom table, which, in the circumstances of the application I do not regard as significant, she was able to recall the names of a number of co-employees who assisted the loading of the piece of furniture in question onto the utility driven by the Plaintiff.

50. The significance of her evidence, which was given without access to the records she left behind when she left her employment, does not suggest prejudice to The Frank Whiddon Masonic Homes in connection with investigating the incident in question. I infer that with due diligence the Defendant in the second proceedings and its insurer would have ready access to those records.

51. I have reviewed the affidavit and evidence of Mr Capel, the solicitor for The Frank Whiddon Masonic Homes on the issue of potential prejudice to his client in connection with this application. His evidence does not reveal any relevant prejudice. The investigator retained by the insurer to investigate the facts surrounding the incident allegedly received limited co-operation with his investigation but given the corroborative statement in the employer’s report of injury form which describes the unloading incident in question and given the non-contributory nature of the evidence of Mr Collins and Mr Walton it is difficult to imagine what further factual material would become available that would assist the employer’s insurer to consider and meet the claim brought by the Plaintiff. I find that no relevant prejudice arises.

52. The Defendant in the second proceedings contends that the Plaintiff has not complied with s.151D(2) because the proceedings were commenced without first having obtained the leave of the Court and this fact is said to be fatal to the ability of the Plaintiff to maintain the proceedings.

53. Notwithstanding that the second proceedings have been filed without the prior leave of the Court the Plaintiff contends that such leave should be granted after the event nunc pro tunc. There is ample authority to support that position. See Dandashli -v- Dandashli, NSW Court of Appeal, unreported, 16 December 1996; Emmanuele -v- Australian Securities Commission (1997) 188 CLR 114; Jol -v- The State of New South Wales (1998) 45 NSWLR 283; Atikullah -v- Sefton (2001) 53 NSWLR 574 and Whisprun Pty Ltd -v- Sams & Ors [2002] NSWCA 394.

54. Having reviewed the foregoing matters I have concluded that it is just and reasonable that the that the Plaintiff be granted leave to commence proceedings against The Frank Whiddon Masonic Homes notwithstanding that it is more than 3 years since the Plaintiff received his injury.

55. Further, in my view, consistent with the authorities I have cited, the Plaintiff is entitled to an order nunc pro tunc in respect of the second proceedings notwithstanding that those proceedings were irregularly commenced and I propose to make that order.

Consolidation

56. The Plaintiff seeks an order that the two sets of proceedings, which are the subject of the motions under consideration, should be consolidated. Although the separate proceedings arise out of the one incident on 5 September 2002 I consider it would be inappropriate to make an order for consolidation. This is so because the parties are not the same in each case and the provisions of the Civil Liability Act, 2002 would apply to the first proceedings whereas the provisions of the Workers’ Compensation Act, 1987 would apply to the second proceedings. Different liability considerations would apply in relation to the first proceedings compared to the second proceedings. Further, different damages considerations would apply to the assessment of damages in the respective proceedings.

57. Accordingly, I decline to make an order that the two lots of proceedings be consolidated. Instead, I believe that the appropriate order is that the proceedings should be heard together.

58. At the hearing of the motions negligible time taken up with argument over the consolidation issue. There was no need for discrete evidence to be called on the issue and accordingly I do not propose to make a specific order for costs in relation to the consolidation issue.

Orders

59. I order that:

(a) pursuant to Section 60 C of the Limitation Act , 1969 that the limitation period for commencing proceedings against Mr Collins trading as D & D French Polishing and which are numbered 5664 of 2007 be extended to 17 December 2007;

(b) pursuant to Section 151D of the Workers’ Compensation Act , 1987 that the limitation period for commencing proceedings against The Frank Whiddon Masonic Homes and which are numbered 1357 of 2008 be extended to 8 April 2008 as if that order was made prior to that date;

(c) proceedings numbered 5664 of 2007 be heard together with 1357 of 2008;

(d) costs of the respective motions are to be costs in the respective causes;

(e) the exhibits may be returned after the expiration of 28 days.