Saric v Chubb Security Australia Pty Ltd
[2015] VCC 271
•20 March 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-14-03025
| DANILO SARIC | Plaintiff |
| v | |
| CHUBB SECURITY AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 February 2015 | |
DATE OF JUDGMENT: | 20 March 2015 | |
CASE MAY BE CITED AS: | Saric v Chubb Security Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 271 | |
REASONS FOR JUDGMENT
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Catchwords: Limitation of Actions Act 1958 – s23A – psychiatric injury sustained in the workplace – agreed delay of 8 years and 5 months between occurrence of injury and initiation of action – benefits paid by Worker’s Compensation insurer – plaintiff had engaged solicitors during the limitation period in relation to contests concerning statutory benefits and unrelated litigation – judgment in favour of plaintiff in serious injury application pursuant to s134AB of Accident Compensation Act 1985 in relation to psychiatric injury sustained – plaintiff’s present application effectively based upon mental or psychiatric inability to revisit circumstances of sustaining injury until after expiration of limitation period – consideration of reasons for delay – whether general or specific prejudice has occurred – whether plaintiff has discharged burden of proof – factors to be considered
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms K Judd QC with Ms E Hill | Belleli King & Associates |
| For the Defendant | Mr J Batten | Minter Ellison Lawyers |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s23A of the Limitation of Actions Act 1958, hereinafter referred to as “the Act”. There was no argument but that s23A applies – see s27B(2)(a) which precludes the operation of Part IIA of the Act. An application such as this requires consideration of the factors set out in s23A(3), although that list is not exhaustive. In the present case, the opposition of the defendant to the application focussed entirely on two of the listed factors, namely:
(a)the length of the delay and the reasons for it; and
(b)specific and general prejudice to the defendant.
2 It was further agreed that, this being an application concerning a workplace injury, certain provisions of the Accident Compensation Act 1985 applied, these being s134ABA(b) and s134ABB. As a result of the operation of s134ABA(b), that period commencing on the day in which an application under s134AB(4) is made and ending on the day on which proceedings are commenced in accordance with s134AB(12)(e) is to be disregarded. It was agreed that, in the present case, the remaining period beyond the expiration of the limitation period is two years and five months. Thus, it was further agreed that the total period to be considered following the occurrence of the injury is eight years and five months. There was no argument but that the limitation period in question is six years.
3 The proposed action by the plaintiff concerns an incident which occurred at the Sofitel Hotel on 9 May 2003. At that time, the plaintiff was employed by the defendant as a security guard. He was directed away from his usual place of employment so as to attend at the Sofitel Hotel, where there had been an incident or accident. A person had thrown himself from one of the upper levels, some 30 or more floors up. There were body parts and the like in the area where the plaintiff was directed to stand for the purposes of preventing people from entering that particular area. Without going into the somewhat gory details, the plaintiff’s case, in very simple terms, is that the defendant required him to remain in this area near the body parts for some hours and that he suffered a psychiatric injury as a result.
4 Of course, any reference to background factual matters contained in this judgment is made solely for the purposes of this application. It is not intended that such findings are in any way determinative in relation to issues of negligence, damages and the like. While some attention was paid to these issues, it was more inferential and in the context of the present application.
5 Returning to the general background, the plaintiff, who has essentially not been in paid employment for a lengthy period, was placed upon payments of statutory benefits. This in turn was productive of some litigation concerning cessation of weekly payments, cessation of payment of medical and like expenses and the like. This litigation seems to have concluded on approximately 10 August 2007. I shall return to it subsequently. The plaintiff has also been involved in separate litigation concerning injuries sustained by him at a gymnasium. This concerned an incident which occurred in August 2004 and the litigation seems to have concluded in approximately 2008. The bottom line is that there is no argument but that the plaintiff had retained three separate firms of solicitors, including his present solicitors, at various stages during the limitation period. There is also no argument but that his present solicitors had endeavoured to get instructions from him in relation to commencing common law proceedings against the defendant, this occurring during the limitation period, and had brought the existence of the limitation period to his attention. Reference to these matters occurs at various places throughout the transcript – see, for example, Transcript (hereinafter referred to as “T”) 46–48.
6 Thus, this is a somewhat different type of application pursuant to the Act. This is not a situation where a plaintiff was unaware of his rights or where solicitors had failed to take action in a proper and timely manner. Mr Batten, appearing for the defendant, described it as unique and it is certainly different. The plaintiff’s case is essentially that, because of his psychiatric condition, particularly after mentally revisiting what had occurred for the purposes of the statutory benefits litigation, and despite a number of contacts from his solicitors seeking instructions and the like, he could not face going through the details of what had occurred or become involved in litigation concerning it until a date a couple of years beyond the expiration of the limitation period.
7 I shall discuss certain aspects of the facts in greater detail shortly, but the above represents an overview of the factual background of this unusual case. The bottom line is that, for the purposes of the Act, a period of eight years and five months is to be considered.
8 Ms K Judd QC with Ms E Hill of Counsel appeared on behalf of the plaintiff. Mr J Batten of Counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, including the adoption of two affidavits, and was cross-examined. Associate Professor Nick Paoletti, consultant psychiatrist, who has seen the plaintiff on two occasions for medico‑legal purposes, gave evidence. Professor Paoletti also effectively adopted three affidavits as being true and correct and was cross-examined. There were a number of exhibits both to the affidavits of the plaintiff and those of Professor Paoletti. On behalf of the defendant, a lengthy affidavit of Mr David Poulton, a partner in the firm of Minter Ellison Lawyers which was representing the defendant, was placed in evidence. This affidavit had with it a large number of exhibits. Mr Poulton was not required to give oral evidence or be cross-examined. Further, counsel very sensibly agreed upon a number of aspects of the case. In addition, succinct but thorough submissions were made on behalf of each party. I shall turn now to a more detailed consideration of certain aspects of the factual background.
Factual background
9 The plaintiff is aged 51 years, he having been born on 7 March 1963. He is originally from the former Yugoslavia. He was engaged in a number of occupations in Australia, before commencing employment with the defendant as a security guard in approximately October 2002. I might say that I have extracted some of these background matters from the Judgment of her Honour Judge Millane in relation to the plaintiff’s successful application for a serious injury certificate, her Honour’s Judgment having been put before me. Of course, the parties were identical to those in the present application. The citation of her Honour’s Judgment is [2014] VCC 80.
10 The plaintiff had previously received some psychological counselling following the death of his brother in the Bosnian war in 1992. He has also had back surgery, having apparently sustained an injury whilst in the course of employment in 1996. However, it would seem that he made no claim in relation to this and indeed it is not suggested that he had been involved in any litigation or made any claim for compensation benefits prior to the incident the subject of the present application. I note that he was educated to Year 12 level in Yugoslavia and he struck me as being a reasonably intelligent person. In any event, it is not suggested that he was unaware of his rights during the limitation period or that difficulties due to such matters as poor education or language difficulties interfered with his ability to commence proceedings within the prescribed time. The English spoken by the plaintiff in the witness box was good and there was no sign of any unusual difficulty in comprehending questions.
11 Whilst the plaintiff underwent divorce proceedings in approximately 2001, it is not suggested any stress associated with these has played a role in the present application. The plaintiff now lives with a partner, Ms Anne Goodban, on what could be described as a hobby farm at Tynong, no great distance from Dandenong. There is also no argument but that he attends scrap metal auctions and endeavours to make some money out of this activity, apparently handing this on to Ms Goodban. The 40 acre property at Tynong belongs to her. Whilst her occupation would seem to be that of a psychiatric nurse and she first met the plaintiff in the course of her professional work, the plaintiff said that he does not discuss his legal matters with her – see T30. In relation to the scrap metal, he would collect those parts which he bought in a truck, and use a grinder and cutter to chop up such metal. Any money that he made, he gave to Ms Goodban. The plaintiff moved to the Tynong property in 2008, and there is no argument but that he carried out some of the scrap metal activities during the limitation period. One argument advanced on behalf of the defendant was that the plaintiff was demonstrating a capacity to make decisions relating to the use of the truck, the purchase of scrap metal and the like within the limitation period. I would point out now that, whilst this is not denied by the plaintiff, essentially his case is that it was matters concerning the 2003 incident which he found he could not revisit and could not take appropriate steps, as opposed to a general inability to make decisions.
12 In cross-examination of the plaintiff, considerable attention was focussed upon his involvement with solicitors, the legal system and claims processes between 9 May 2003 and 9 May 2009. Some relevant matters in this regard are as follows:
·The plaintiff completed a WorkCover claim form on 26 June 2003, it being received by the defendant on the following day. The plaintiff’s injury is described as Post-Traumatic Stress Disorder. Reference is made to what the plaintiff had seen on 9 May 2003 and how this kept coming back to him. The reason why he had delayed completing such a form was that he did not want to look bad and thought that what was happening would go away. It seems from this form that he had ceased work on 16 June 2003.
·By letter dated 30 July 2003, the defendant’s insurer rejected the claim, essentially because of the delay in relation to its lodgement. The plaintiff requested a conciliation in respect of this, having lodged a form dated 13 August 2003. The form is completed in handwriting and the grammar in it is not perfect. It is not entirely clear as to whether the plaintiff had engaged solicitors at this time. The impression from the form is that he may not have done so. In any event, the form was completed to an adequate level. A letter dated 24 September 2003 from a Conciliation Officer indicates that the defendant had decided to accept the claim and would commence paying entitlements in accordance with the Act.
·By letter dated 15 April 2004 the defendant’s insurer informed the plaintiff that his weekly payments would be terminated on 2 May 2004 because he was no longer incapacitated for work. Again the plaintiff lodged a form seeking conciliation, and again the form has the appearance of having been completed by him personally. On this occasion conciliation was not successful. It is apparent from a letter dated 19 August 2004 that the Dandenong office of Slater & Gordon had been engaged by the plaintiff. Whether that firm took part in the conciliation conference of 7 June 2004 or indeed the earlier conciliation in September 2003 is not entirely clear. Certainly it was retained by the plaintiff at some stage and at least by 19 August 2004.
·It would then seem that nothing was done in relation to weekly benefits for a period, but by letter dated 14 August 2006 the defendant’s insurer gave notice to the plaintiff that payment of his medical and like services would cease. Again conciliation was requested, but it is apparent from the relevant form that, by this time, the plaintiff’s current solicitors (Belleli King & Associates) were involved. There is no reference to any solicitors on the previous “Request for Conciliation” forms and only a reference to “WorkCover Assist”. Further, a letter of 7 September 2006 enclosing the Request for Conciliation form and other material, such letter being addressed to the Accident Compensation Conciliation Service, makes it apparent that the plaintiff’s current solicitors were then acting for him.
·On 20 December 2006 the plaintiff, through his present solicitors, issued proceedings out of this Court seeking a declaration that he was entitled to weekly payments of compensation from 4 May 2004 and that he was entitled to the payment of medical and like expenses. Ultimately the matter came on for hearing (it was suggested in cross-examination that this was in the Magistrates’ Court, but the documents would indicate that it was in the County Court). Both parties were represented by Counsel. The matter was resolved and Terms of Settlement, dated 10 August 2007, were signed by Counsel. Essentially the plaintiff received weekly payments of compensation from 3 May 2004 until 21 September 2005, together with the payment of reasonable medical and like expenses and legal costs.
·It is also apparent that the plaintiff had conducted litigation against a gymnasium in Dandenong in respect of knee damage resulting from his lifting weights on 1 August 2004. In respect of this litigation, which was heard in the Dandenong Magistrates’ Court, the plaintiff engaged as his solicitors Ryan Carlisle Thomas. The belief seems to be that the matter came on for hearing in 2007 or 2008. It settled during the running of the case and after the plaintiff had given evidence. There is reference to this litigation both in the transcript of the serious injury application which is exhibited to the affidavit of Mr Poulton and in the transcript of the present application – see, for example, T23–25.
13 Thus, the plaintiff was in comparatively regular contact with solicitors in respect of matters concerning the relevant injury between August 2004 (perhaps a little earlier, although this seems doubtful) and the appearance and settlement on 10 August 2007. It may be that he was subsequently in contact with solicitors after the latter date, possibly in 2008, but that concerned a different injury. Before me, there was no suggestion that there was any link between the litigation concerning the relevant incident involving the present defendant and that concerning the injury sustained in the gymnasium. I accept that they were totally separate injuries and that consideration of what had occurred at the gymnasium did not necessitate the plaintiff revisiting the events of 9 May 2003.
14 As earlier stated, it is not disputed that the plaintiff’s present solicitors attempted to get instructions from him in relation to commencing proceedings based upon the relevant incident and that this was done during the limitation period. In addition, I accept that the plaintiff was alerted by his solicitors as to the existence of the limitation period prior to its expiration. I shall now turn to a summary of those parts of the plaintiff’s evidence concerning his failure to commence proceedings within the prescribed time and to the evidence of Professor Paoletti.
The plaintiff’s evidence as to why he did not commence proceedings within the limitation period
15 The plaintiff’s evidence-in-chief concerning his failure to commence proceedings essentially is contained in his affidavits of 7 November 2014 and 23 February 2015. In his earlier affidavit, he claimed that there was a delay between the resolution of his statutory benefit litigation on 10 August 2007 and the commencement of his serious injury application because of the severity of his psychiatric illness. He also referred to the difficulties that he has in relation to thinking of or speaking about the incident. He referred to withdrawing from the world after the earlier case was concluded in 2007, swearing that he could not deal with the incident and was unable to give his solicitors instructions or assist them to prepare and run his case. It was not until late 2011 that he felt emotionally and mentally ready to proceed with the serious injury application, having another “dark period” following it. That earlier affidavit also dealt with possible allegations of prejudice on the part of the defendant, a topic to which I shall return.
16 The plaintiff’s later affidavit of 23 February 2015 again contains reference to the deterioration of the plaintiff’s mental state following the conclusion of the statutory benefits litigation. It mentions such matters as the plaintiff’s solicitors contacting him in relation to his serious injury claim. The plaintiff swore that he could not bring himself to deal with the matter and avoided talking to his solicitors, this being too painful for him. He alleges that he was unable to give instructions or assist in the preparation of the case. He also stopped seeing his treating psychiatrist, Dr Thacore, in approximately January 2007 because he felt traumatised when having to talk about the relevant incident and, accordingly, did not have a treating psychiatrist at about the time of the expiration of the limitation period. He also swore that he could cope with the litigation concerning the injuries sustained at the gymnasium because he did not have to re-live the 2003 incident. It was not until late 2011 that he was finally able to bring himself to proceed with the serious injury application and the progress of the present action.
17 The plaintiff was cross-examined at some length. Considerable portions of this cross-examination related to the plaintiff’s activities during the limitation period and his capacity to do such things as make decisions concerning the purchase of scrap metal. In addition, as one would expect, there was cross-examination concerning the previous litigation and procedures in relation to statutory benefits. There was also cross-examination concerning the gymnasium litigation. This involved some discussion of the instructions to the solicitors that were engaged by the plaintiff. In relation to many of these matters, the plaintiff effectively agreed with the propositions put to him and, as stated, there is little or no controversy concerning them.
18 The plaintiff agreed in cross-examination that his treating general practitioner has been Dr McCowan, saying that this was from approximately 2008 onwards. He has seen Dr McCowan for the purpose of getting anti-depressant medication on a couple of occasions, but tended to avoid going to see doctors unless he was desperate or had reached “rock bottom”. He also said that he had stopped seeing Dr Thacore in 2007 and believed that he had next seen a psychiatrist, Dr Osieanlis, on the recommendation of Professor Paoletti, in 2014. He agreed that he had told Professor Paoletti that he stopped seeing psychiatrists because they “opened the can” – see T28.
19 The plaintiff also said that he avoided talking to his partner, Ms Goodban, concerning legal matters. He said that he tried to keep busy. He described how he went to some 6, 8 or 10 scrap metal sales per year and had been doing this from 2007 onwards. He also described an addiction that he had to poker machine gambling and his efforts to beat that. Further, he referred to his activities on the 40 acre property on which he lives. Any money that he makes from the scrap metal activities is given to his partner, who I understand to be the owner of the property. He could not recall when he first received advice about his right to sue the defendant for common law damages, but stated that he would have received such advice – see T34. He repeated that he could simply not bring himself to deal with the issue. He could not give clear instructions – see T36. Whilst he agreed that Ms Goodban was helping him “stay alive”, he said in essence that she had “no say” in relation to the plaintiff talking to solicitors and the like – see T38.
20 The plaintiff said that his present solicitors had rung him a few times during the period after 2007 asking him to tell them what to do. Essentially, he told them not to go ahead until he felt better – see T41. This took three years or more. He acknowledged swearing an affidavit in support of the serious injury application on 5 October 2011. However, he agreed that the delay was entirely his responsibility. He had not sought to make any contact with other security guards who had been present on the day of the incident. He was not aware that Chubb Security Australia Pty Ltd had been sold in 2006. He did not know the names of other security guards who had been working on the site on the day in question, because that was not his regular place of work. He was one of the extra guards that had been called in. By 2011, he thought he was stronger and could face the matter. He had previously gone to the premises of his present solicitors on a few occasions, but once he started talking about the matter, he would break down.
21 In re-examination, the plaintiff said that, between August 2007 and late 2011, he had not engaged in activities that involved him talking about the relevant incident. Any activities related to the farm or to scrap metal did not involve this. During that period, he did not talk to his partner about the matter. He was not seeing a treating psychiatrist during that period, because he knew that such a person would want to talk about the incident. He did not talk about the incident with his general practitioner, although he did discuss depression. Whilst he felt sufficiently strong to proceed with the serious injury application in late 2011, he found that giving evidence and talking about it resulted in him being “pushed backward” – see T50. He also confirmed that he had not had to think about the relevant incident during the proceedings against the gymnasium.
The evidence of Professor Paoletti
22 The evidence of Professor Paoletti could be summarised as follows. His evidence-in-chief essentially involved him adopting an affidavit of 24 February 2015 to which was attached his report of 19 February 2015. Two earlier reports of Professor Paoletti, these being dated 10 April 2013 and 28 October 2013, were already in evidence by reason of being exhibited to affidavits of the plaintiff. These reports had apparently been prepared for the purposes of the serious injury application determined by her Honour Judge Millane. They were identified by Professor Paoletti.
23 In his most recent report, Professor Paoletti took a history that, following the 2007 court case, the plaintiff found that the whole situation had been exacerbated and that was why he did not want to know about proceeding further with litigation. Professor Paoletti also stated that the history of symptoms provided to him when he saw the plaintiff on one occasion in 2013 (whilst there were two reports in that year, Professor Paoletti only saw the plaintiff once), along with the mental examination that he carried out, were in keeping with the plaintiff’s major difficulties in pressing his common law claim. Professor Paoletti’s diagnosis had been that the plaintiff was suffering from Post-Traumatic Stress Disorder with anxiety; a major depressive disorder, single episode, chronic, in partial remission; a period of partner relational problem, resulting in divorce; and finally a period of paranoid ideation. Professor Paoletti was of the view that those four factors acting together limited the plaintiff’s capacity to attend to bringing his common law claim against the defendant. In particular, Post-Traumatic Stress Disorder sufferers are well-known for avoidant behaviour. There would also have been reduced motivation from the depression, the failed marriage and the paranoid thinking, and this would have fuelled the avoidance.
24 Further, I note that, in his report of 10 April 2013, Professor Paoletti recorded a history of some suicidal thoughts and, amongst other things, major anxiety expressed by the plaintiff, with avoidance about seeing psychiatrists because of the resurfacing of disturbing emotions. Further, at the end of the interview, the plaintiff stated that he expected the post-traumatic symptoms to resurface more strongly afterwards, as they had with all psychiatric interviews. This is why he stopped seeing psychiatrists. In relation to treatment, Professor Paoletti reported that the plaintiff was avoidant of psychiatric treatment because he could not cope with the re-traumatising associated with talking about it, a condition Professor Paoletti said was not unusual in trauma victims. The subsequent report of 28 October 2013 does not take matters much further, although I note that Professor Paoletti comments that the plaintiff’s avoidance is understandable and needs to be respected because of the risk of major exacerbations.
25 In cross-examination, Professor Paoletti said that the plaintiff had known for many years that he had the diagnosis of Post-Traumatic Stress Disorder, had received treatment in relation to it, but had stopped seeing people. When he originally saw the plaintiff, Professor Paoletti had taken a history that the plaintiff had stopped seeing psychiatrists because they “opened the can”, but also had a general history of the plaintiff busying himself in order to cope. He had obtained the history relating to scrap metal, the small farm, and the like. Professor Paoletti agreed that the plaintiff could make decisions and function in his environment when he is kept busy – see T64. Professor Paoletti further said that sufferers of Post-Traumatic Stress Disorder are capable of appearing quite normal at times. He referred to terms such as repression, suppression and disassociation.
26 In relation to the plaintiff’s gambling problem, Professor Paoletti agreed that gamblers have to make decisions. He also confirmed that, as at the date of his first seeing the plaintiff in April 2013, the plaintiff was able to answer his questions. Professor Paoletti agreed that people with Post-Traumatic Stress Disorder can make some decisions. He agreed that, with the four factors or conditions that he had mentioned, people could still make decisions, but also said that the capacity to make decisions is specific to the task – see T71. Professor Paoletti was not able to say what changed in 2011 so as to enable the plaintiff to speak to his solicitor and pursue his action. However, he said that this could occur in a number of ways – for example, through medication, spontaneously or by a decision to “bite the bullet” and do what is difficult. Professor Paoletti also stated that, in his experience, there are people, for example rape victims, who hold off for many years and then make an application because something has triggered this. They decide to go through with it, although it will be difficult. He did not think it unusual for the plaintiff finally to make a decision to go ahead with his claim. He understood that the plaintiff was solely responsible for the delay.
27 In re-examination, Professor Paoletti said that, between 2007 and 2011, the plaintiff would have been able to make some decisions, but the capacity to make decisions can be specific to certain matters. It is not inconsistent for someone to be avoidant of a situation which causes anxiety, but not to be avoidant of one which does not. It is not inconsistent that the plaintiff would make some decisions between 2007 and 2011. In answer to a question of mine concerning a passage in his first report, Professor Paoletti stated that he thought that defensive withdrawal from certain aspects of life had affected the plaintiff’s life pervasively.
28 I turn now to the submissions on behalf of the parties, and shall deal with them in the order in which they were presented.
The submissions on behalf of the defendant
29 The submissions of Mr Batten on behalf of the defendant could be summarised as follows.
30 In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, McHugh J referred to four policy considerations relevant to an application such as this. These include the consideration that, as time goes by, relevant evidence is likely to be lost. That is relevant to the present case. Secondly, McHugh J said that it was oppressive to a defendant for an action to be brought long after the circumstances which gave rise to it have passed. Thirdly, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Fourthly, the public interest requires that disputes be settled as quickly as possible.
31 In the present case, the plaintiff is not under any legal disability, although it has been accepted by the defendant that he has had a condition of Post-Traumatic Stress Disorder since approximately June 2003. This is not a case where the plaintiff can hold solicitors or any third party responsible for the delay. The court should not be satisfied that the plaintiff was unaware of his rights.
32 This is not a case where the plaintiff can say that he is unfamiliar with courts, litigation, lawyers or the availability of expert advice. The plaintiff is effectively saying that he has a defensive withdrawal disorder or Post-Traumatic Stress Disorder which prevented him from engaging those advising him. However, he was fully able to engage in his environment and, at least from 2008 onwards, able to make a range of decisions.
33 The defendant would point out that there was no affidavit from the plaintiff’s solicitors clarifying or confirming what had in fact occurred. Clearly in 2006 and 2007 the plaintiff was able to pursue litigation, attend doctors for medico-legal purposes and the like. He was capable of retaining an alternate firm of solicitors in relation to gymnasium litigation. The court should find that, in the circumstances prevailing, his conduct in this case was not reasonable. The court should find that he was well-aware of his rights within the limitation period, but chose not to exercise them. Subsequently, it is said that he had some type of withdrawal syndrome which applied only to the question of pursuing further litigation. However, in this regard, there is no material before the court from any of the three firms of solicitors engaged during the relevant period.
34 In relation to s23A(3) of the Act, sub-paragraph (3)(a) is relevant. The court should reject the plaintiff’s explanation in relation to the length of and reasons for the delay. Effectively, the plaintiff is saying through a doctor that he had Post-Traumatic Stress Disorder and could not make a decision. This should not be accepted. Sub-paragraph (3)(b) is also relevant. There is, or there is likely to be, prejudice to the defendant. There is general prejudice due to the passage of time, and reference is again made to the Judgment of McHugh J in Taylor. The passage of time alone can represent sufficient prejudice. However, in addition to that general prejudice, there are specific matters of prejudice raised in the affidavit of Mr Poulton. These include the sale of the defendant, records being dispersed and witnesses not being able to be found. Thus, there is specific prejudice.
35 Reference is also made to the decision in Walla v State Transport Authority [1985] VR 329. In that case, Murray J commented that, in practically every case, the question would resolve itself into a question of whether the granting of relief in an application would be unjust and unreasonable to the respondent. In the present case there is both general and specific prejudice. The court should not accept that the plaintiff could not speak to his solicitors and say either “yes” or “no” to the institution of proceedings. The conclusion supported by Professor Paoletti that the plaintiff could not bring his proceedings is not the reality of the situation. Proceedings are brought by lawyers. All the plaintiff had to do was give oral instructions. He had previously made decisions in other litigation. He had demonstrated that he had the capacity to instruct lawyers. He was capable of engaging in a wide range of activities during the relevant period.
36 In answer to a question of mine concerning any possible impact of the decision of her Honour Judge Millane in the serious injury application, Mr Batten pointed out that economic loss, upon which that judgment concentrated, was not a factor in the present application. The court can accept that her Honour found that the effects of the Post-Traumatic Stress Disorder causally were responsible for a severe permanent behavioural disturbance or disorder. However, that does not mean that someone with that condition is incapable of giving instructions and the evidence of Professor Paoletti would support this proposition.
37 The plaintiff has had the same condition since 2003 and since then has been able to make numerous decisions in relation to a variety of matters.
38 Finally, the prejudice to be considered is that to the defendant and not to its insurer or the Victorian WorkCover Authority. The injury itself arises from what is alleged to be the system of work in a particular and unusual situation. For example, it is not a situation of a specific lift. Lay witnesses will be important. The absence of such witnesses in this case represents significant specific prejudice.
The submissions on behalf of the plaintiff
39 The submissions of Ms Judd and Ms Hill on behalf of the plaintiff, which submissions were presented by Ms Judd, could be summarised as follows.
40 The fact that this is an unusual case and not one based upon ignorance of rights or fault by solicitors is not a reason for shutting out the plaintiff. Further, what the plaintiff is saying in the present case is not that he did not have the capacity to make a decision, but that he was unable so to do. This is made clear, for example, in his affidavit of 7 November 2014. References in that affidavit to his breaking down and crying uncontrollably when thinking about the incident are consistent with his oral evidence. There are references in his affidavit of 7 November 2014 to his being in a vulnerable state after the proceeding ended in 2007 and to the fact that he simply could not deal with the incident, being unable to give instructions to his solicitors.
41 In relation to the reasons for the delay, it is accepted that the plaintiff has been represented by his present solicitors since 2007. He was contacted by them in relation to pursuing his common law claim, but they were unable to get instructions from him until late 2011. It is a fair assumption that these contacts occurred before the expiration of the limitation period – I would refer to the discussion between Ms Judd and myself at T89-90. The plaintiff is not bringing the present case on the basis that he was not told about his rights until after the expiration of the limitation period.
42 The fact that the plaintiff did have, to use his words, a dark period is supported by the clinical notes of his general practitioners, which notes are exhibited to the affidavit of Mr Poulton. Reference is made to the entry by Dr Ron Roth of 27 December 2007. Reference is also made to notes which indicate a long history of depression – for example, the notes of 25 May 2009.
43 An entry of 22 February 2010, apparently by Dr McCowan, contains a reference to a long battle with depression, reference to the fact that appointments (apparently with psychiatrists) are not much use because they bring up bad feelings and the statement that the plaintiff did not want to see a psychiatrist. These entries are all consistent with the evidence of Professor Paoletti.
44 In short, the reason given by the plaintiff as to his delay is a powerful and understandable one. The plaintiff’s avoidant behaviour applies not only to his reluctance to engage in legal proceedings, but also to his own treatment. His reasons are genuine. In relation to the plaintiff’s failure to call his most recent treating psychiatrist, he explained that Dr Osieanlis has said that he does not like getting involved in legal matters. That is why he has not been called.
45 In relation to prejudice, what is essentially alleged in the affidavit of Mr Poulton is that no employment or WorkCover records were kept in relation to the plaintiff. However, Mr Poulton’s affidavit makes it clear that the insurer has kept a file and has a large number of relevant documents. It is apparent that the plaintiff provided a signed statement concerning the circumstances of the injury, and this document was exhibited to his affidavit in the serious injury application. It is also apparent that the defendant, via its insurer, would have access to various other documents, including the plaintiff’s letter of resignation, claim documents and the like. There is also exhibited to the plaintiff’s second affidavit in the present case a detailed incident report from the defendant’s Guards Supervisor, this essentially being contemporaneous. It is also clear from that incident report that there was a police investigation, forensics and the like. Thus, the present case is not one where there has been no documentation. The prejudice that may exist in this case is not the type of prejudice often seen in other cases.
46 In essence, what is said in the affidavit of Mr Poulton is that investigators have been unable to locate three potential witnesses as at 10 November 2014. The situation is not static. They are not even witnesses that are certainly identified as having some relevance to the case. Five potential witnesses have been located. Three of them were aware of the claimed incident, but do not recall the plaintiff or having had any contact with him. It may be that they never knew him. This cannot necessarily be attributed to the delay. Another two witnesses have been located, but efforts to interview them to date have not been successful. Again, this is not necessarily related to the delay.
47 Further, Victorian WorkCover Authority doctors have examined the plaintiff and the defendant has been provided with ongoing medical reports and assessments. The defendant has at all times been aware of the workplace injury and must have contemplated the possibility of a common law proceeding. The affidavit of Mr Poulton makes it clear that the defendant has sufficient information to identify potential witnesses. The probability of a police investigation of the incident also exists.
48 In any case such as this, a court would assume that there has been some general prejudice. However, any specific prejudice is not particularly significant. In all the circumstances, it is just and reasonable to grant the plaintiff’s application.
Ruling
49 I shall commence by considering the various matters listed in s23A(3), and particularly the two circumstances upon which attention was focussed in this case. I appreciate that the list in s23A(3) is not meant to be exhaustive. I am also conscious of the fact that, as has been said in a number of decisions, the task at hand involves the synthesizing of the competing considerations so as to arrive at a conclusion that takes account of them all. The plaintiff bears the burden of proof, although there is at least an evidentiary onus upon the defendant in relation to the matters of specific prejudice which it alleges.
(i) Section 23A(3)(a)
50 I turn now to s23A(3)(a). This concerns the length of and reasons for the delay on the part of the plaintiff. Whilst any delay beyond the expiration of the limitation period carries with it general prejudice by reason of the sheer effluxion of time, the delay in this particular case, while substantial, is not as great as that which I have encountered in some other applications or read of in the authorities. For example, in Taylor the relevant limitation period was three years and the delay seems to have been in the order of 15 years. In Koskyv Trustees of Sisters of Charity [1982] VR 961, the relevant delay was 14 years. In Lovejoy v Carp & Ors [1999] VSC 223, the relevant delays were for periods between 11 and 20 years. Of course, in some other cases the delay has not been of that length – see, for example, Bell v SPC Ltd [1988] VR 123, where the delay was in the order of seven years. It is to be recalled that, as was stated by Dawson J and McHugh J in Taylor, once the legislature’s selected limitation period has expired, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation. The point that I make is that the delay in the present case is not of such extraordinary length as to make it arguably almost self-evident that a situation exists where the prima facie prejudice is of such magnitude as to deny the defendant justice or make it impossible for it to conduct its defence. Of course, the reasons for the delay must also be examined.
51 As stated, the reasons for the delay are unusual. Essentially, they are centred upon the plaintiff’s psychiatric or psychological condition and the assertion that, after the completion in 2007 of his litigation concerning statutory benefits, he could not bring himself to revisit or discuss the circumstances in which he sustained injury in May 2003 and give appropriate instructions. It is alleged that this condition continued until 2011.
52 Without in any way commenting upon issues of negligence, I accept that, for the purposes of the present application, the circumstances surrounding the relevant incident were indeed gory and horrific. I also accept the evidence of the plaintiff that, between 2007 and 2011, he could not bring himself to revisit or discuss the incident or any legal proceedings arising out of it. This is not a situation where a plaintiff is attempting to pass the blame for delay onto others. The plaintiff accepts responsibility for the delay, and relies upon what has been described as his avoidant behaviour as the reason for that delay. During that “dark period”, as he has described it, the plaintiff avoided any contemplation of anything to do with the incident or making any decision in relation to it. This was not a position from which he was shaken during cross-examination, which was thorough and testing.
53 The plaintiff also makes no secret of the fact that that he was making decisions in relation to other matters after 2007 and before the expiration of the limitation period. These related to various matters, including whether or not to purchase scrap metal at the auctions which he attended. However, such decision-making did not involve revisiting the incident or litigation flowing from it. The same could be said of the action against the proprietor of the gymnasium. This does not seem to have been resolved until 2008. However, it was also totally distinct from the incident at the Sofitel Hotel. Making any decision in relation to that litigation did not require thinking about the relevant incident.
54 I accept the plaintiff as a witness of truth. Nothing which occurred during the course of his testing cross-examination caused me to think otherwise. It is not suggested in the reports of Professor Paoletti that the plaintiff is anything other than genuine and truthful. In his report of 10 April 2013, Professor Paoletti described the plaintiff as being pleasant and co-operative and indeed stated as follows:
“I had absolutely no reason to doubt Mr Saric’s veracity and the longitudinal chain of events and symptoms stacks up.”
55 I agree with Professor Paoletti. I have no reason to doubt the plaintiff’s veracity and, as stated, I accept his evidence. Whilst I was not asked by Mr Batten to draw an inference of the type referred to in Jones v Dunkel (1959) 101 CLR 298, he did point out that no affidavits from the three firms of solicitors engaged by the plaintiff had been put before the court. I am bearing that in mind. However, I am also bearing in mind the fairly sweeping concessions made by the plaintiff and the favourable impression which I have formed of him. Further, given the basis of the application and the concession that the plaintiff did not give instructions to his present solicitors despite being asked so to do, and that he had been informed of the existence of the limitation period and its upcoming expiration, it is questionable whether affidavit material from those solicitors would have taken matters much further. I also have some doubts as to whether affidavits from the other two firms of solicitors seen by the plaintiff could be anticipated to cast much light upon matters.
56 I also accept the evidence of Professor Paoletti. His ultimate conclusion, as stated in his report of 19 February 2015, is that the plaintiff’s mental disorders probably acted together to limit his capacity to attend to the bringing of the common law claim against the defendant. He also pointed out that sufferers from Post-Traumatic Stress Disorder are well known for avoidant behaviour. Professor Paoletti was also subjected to careful and testing cross-examination, but his opinion did not alter. As he confirmed in re-examination, it is not inconsistent for someone to be avoidant of a situation which causes anxiety and not to be avoidant of a situation which does not. In short, I accept his evidence and opinion.
57 Both the plaintiff’s evidence and the opinion of Professor Paoletti also seem to me to be consistent with the contemporaneous clinical notes to which my attention was drawn by counsel for the plaintiff. The entry of 30 March 2007 by Dr Medres refers to the plaintiff being unable to motivate himself to do anything. It is also recorded that the plaintiff had seen a psychiatrist, but did not find that very useful as he was made to face demons and was unable to continue doing that. An entry of Dr McCowan on 25 May 2009 refers to the plaintiff’s long history of depression and the fact that the plaintiff had tried numerous medications with side effects. There is a reference to him feeling “like a zombie”. An entry of 22 February 2010 again refers to the plaintiff’s long battle with depression, but also indicates that he had not been keeping recent appointments with his psychiatrist because it “just brings up bad feelings”. He did not want to see a psychiatrist. Some of these entries may not be precisely to the point, but they tend to underline or reinforce the views of Professor Paoletti and the conclusion to which I have come.
58 Thus, there has been some general prejudice suffered by the defendant by reason of the delay. Clearly a delay of eight years and five months has the capacity to create such general prejudice. However, it is not what could be described as an extraordinarily long delay. Further, in relation to the reasons for such delay, I accept the explanation given by the plaintiff, which explanation is supported by the evidence of Professor Paoletti and is consistent with certain entries in the clinical notes.
(ii) Section 23A(3)(b)
59 The second factor to be considered pursuant to s23A(3) is the extent to which there is, or is likely to be, prejudice to the defendant. I have already referred to the general prejudice that may be suffered due to the effluxion of time. In relation to specific prejudice, I am not persuaded that any such prejudice of great moment has been demonstrated.
60 The material in relation to potential witnesses who cannot be located strikes me as speculative at best. I am also not persuaded by the available evidence that the efforts made to locate witnesses are either concluded or have been particularly exhaustive. It is apparent from the affidavit of Mr Poulton that, on 30 October 2014, an investigator was engaged for the purposes of identifying and locating eight employees of the defendant who may possibly have had some knowledge in relation to the plaintiff’s allegations. Why these particular employees would have knowledge of the incident or the plaintiff is not clear. It is to be remembered that the Sofitel Hotel, where the incident occurred, was not a location where the plaintiff normally worked.
61 In any event, the investigator was able to locate five of those eight employees. Three of them, whilst being aware of the incident, had no recollection of the plaintiff or of having any contact with him. Efforts to contact the other two who had been located had been unsuccessful as at the date of Mr Poulton’s affidavit (11 November 2014), but such efforts were ongoing. There is no supplementary affidavit providing information concerning what has occurred in relation to those ongoing investigations in the subsequent three and a half months. The affidavit of Mr Poulton does disclose that efforts made prior to 10 November 2014 to identify and locate a further three potential witnesses had not been successful. I presume that those three represent the balance of the eight referred to earlier. Again, there is no affidavit material which provides an up-to-date report on the efforts to locate these witnesses.
62 Further, details in relation to these potential witnesses are not plentiful. In the affidavit, there is an earlier reference to attempts to obtain details of six employees of the defendant who may have worked with the plaintiff on the day in question. However, the result of these inquiries seems to have been that no documentation had been retained. It is then not clear whether those six employees form part of the eight subsequently referred to, or whether they are a distinct group. There is no affidavit from the external investigator to whom reference has been made, nor is any report of his exhibited to the affidavit of Mr Poulton. There is no affidavit or exhibited material from Ms Zoe Blanchett, a lawyer employed by the solicitors representing the defendant and referred to in the relevant portions of Mr Poulton’s affidavit, which provides any greater detail. There is nothing to suggest that the five potential witnesses who have not been contacted (or 11, if the six otherwise referred to are not part of the group of eight) have any greater knowledge than the three who have been interviewed and know nothing of the plaintiff. No information was provided as to their occupations, duties, location on the day of the incident, likelihood of remembering the plaintiff and his activities or the like. In short, there is nothing to suggest that the persons who have not been contacted are even likely to possess any knowledge which would assist the defendant in the presentation of its case. There is not even sufficient information for one to be confident that investigations to find these anonymous potential witnesses have arrived at a fruitless end.
63 Regardless of where the burden of proof might lie (in relation to specific prejudice, at least the evidentiary burden lies upon the defendant), it seems to me that the evidence in relation to missing potential witnesses is flimsy at best and does not support the proposition that specific prejudice to the defendant exists.
64 The same can be said of the argument that specific prejudice has been suffered by reason of the sale of the defendant, along with its liability and employees files, in 2006. I leave to one side any argument concerning impact, if any, of the sale having been carried out before the limitation period had expired, given that it is the whole period which is to be considered. Investigations seem to have revealed that no WorkCover records were kept for the plaintiff because of the time that had elapsed since his employment, such inquiries having been made of the entity which purchased the defendant. However, matters to do with the plaintiff’s WorkCover claim seem to have been ventilated somewhat comprehensively in his litigation, leading to the ultimate settlement in 2007. Considerable material, including a claim form, correspondence, terms of settlement and the like are exhibited to the affidavit of Mr Poulton. Further, a full list of medical reports and the like was conveyed to the Senior Conciliation Officer of the Accident Compensation Conciliation Service on 7 September 2006. A copy of that letter is exhibited to Mr Poulton’s affidavit, and it seems safe to assume that the defendant, or its solicitors, is aware of this. In more recent times, the plaintiff’s serious injury application was litigated, leading to the judgment of her Honour Judge Millane on 15 February 2014. It is apparent from her Honour’s judgment that the defendant possessed a number of documents, including a document apparently entitled IRS Total Injury Management Assessment, it being dated 20 September 2003. It is also apparent that the defendant, or its insurer, organised examinations of the plaintiff by a psychiatrist. Further, as previously stated, a lengthy and almost contemporaneous Incident Report from the Guards Supervisor of the defendant is exhibited to the plaintiff’s affidavit of 23 February 2015. A number of people are referred to in that Report, although the plaintiff does not seem to be mentioned. Further, the lengthy statement made by the plaintiff on 11 July 2003 is also exhibited to his affidavit of 23 February 2015. That statement appears to have been taken and witnessed by a person from a firm of investigators.
65 In summary, there is little or nothing in the material put before me to support the proposition that the sale of the defendant in 2006 has had any, or any significant, negative impact upon the ability of the defendant to conduct the defence of this case.
(iii) The other factors listed in s23A(3)
66 As previously stated, the focus in this case was directed almost entirely to s23A(3)(a) and (b). However, I am required to have regard to all of the circumstances of the case, including other matters set out in s23A(3). In my opinion, neither s23A(3)(c) nor (d) has any particular relevance to the present application. The same could be said of s23A(3)(f). In relation to s23A(3)(e) – namely, the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the proposed defendant which caused his injury might be capable of giving rise to an action for damages – this overlaps very considerably with what has been discussed above in relation to the reasons for the delay. There is no suggestion that, once the plaintiff’s solicitors were able to obtain instructions, there was undue or prejudicial delay in the pursuit of a serious injury application. It was agreed that the period which I am to consider is that of eight years and five months, and that is the period to which my attention has been directed.
67 In short, the matters contained in s23A(3)(c) – (f) do not require any detailed consideration. Their relevance to the present factual situation is minimal.
Other relevant factors
68 As stated, the list contained in s23A(3) is not exhaustive. I shall now deal briefly with some other relevant factors.
69 As was said by Brooking J in Bell:
“The question posed by s23A is whether, having regard to all the circumstances of the case, including the circumstances mentioned in paras (a) to (f) of subs(3), it is just and reasonable to extend the period. This requires consideration of the conduct and position of both parties, including the effect of the outcome of the application on each of them …”
70 This extract from Bell was cited with approval by Buchanan JA in Tsiadis v Patterson (2001) 4 VR 114.
71 The plaintiff is, as stated, a truthful individual who, for the purposes of this application, has suffered a major psychiatric or psychological disturbance as a result of the incident in question. Apart from any income which he obtains from his scrap metal activities, which income he passes on to his partner (who, I gather, is also his landlady), he has not worked for many years. He has already been found by her Honour Judge Millane to suffer from a severe mental disorder which is permanent and which is productive of a loss of earning capacity of 40 per cent or more. Clearly, the impact upon him of an adverse finding in the present application would be great.
72 On the other hand, it is difficult to say what impact an adverse finding would have upon the defendant. Mr Batten emphasised that it is prejudice to the defendant, and not to its insurer or to the Victorian WorkCover Authority, that must be considered. If that same line of reasoning is adopted in relation to the effect of an adverse outcome of this application upon it, it is difficult to point to any negative effect. Apparently the defendant has been sold. Whether it still exists is something of which I am unaware. There is no secret but that behind it stands an insurer. Various documents from it have been placed in evidence as exhibits to Mr Poulton’s affidavit. One would assume that an adverse finding in this litigation would not have a disastrous effect upon its financial health, but that is by no means fatal to it successfully defending an application such as this. However, that it is, in essence, an experienced litigator, whether it be viewed as operating on its own behalf or on behalf of the Victorian WorkCover Authority, is a factor which can be borne in mind – see the observations of Beach J in Van Gerven v Amaca Pty Ltd & Anor [2012] VSC 131. It takes no great stretch of the imagination to come to the conclusion that the effect of the outcome of the application upon the plaintiff, considering his position, would exceed that upon the defendant, bearing in mind its position.
73 Further, the situation is not akin to that which was prevailing in Batistatos v Road & Traffic Authority of New South Wales & Anor [2006] HCA 27, where, in essence, no useful evidence was available upon which to conduct the trial into the question of whether the plaintiff’s injuries were caused by the negligence of the defendants and no further search or inquiry was likely to locate any such evidence. The decision of Bryson JA at first instance was quoted with approval by the majority. This included reference to the fact that the trial of the proceedings could not rise above a debate about the effect of scraps of information, it being impossible to inform the debate with any realistically useful information. In the present case, as discussed above, a considerable amount of information is available, including virtually contemporaneous statements and other documents. There has been enough information for the conduct of a conciliation procedure and legal proceedings in relation to statutory benefits. There has been a fully contested serious injury application, the transcript of which is exhibited to the affidavit of Mr Poulton. In addition to medical reports, detailed clinical notes are available. There is no suggestion that relevant medical opinions and material are no longer available. Further, in this application no argument along the lines set out in Batistatos was advanced on behalf of the defendant.
Overall conclusion – the synthesizing process
74 As was said by Buchanan JA in Tsiadis v Patterson [2001] VSCA 138, and cited by Beech J in Van Gerven:
“ … the Court must synthesize a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the respondent (in that case) bears the onus of persuading the Court that it is just and reasonable to extend the limitation period.”
Buchanan JA also referred to what had been said by Brooking J in Bell, which is set out above.
75 To adopt the wording used above, I have synthesized all of the matters required to be taken into account by s23A of the Act. As part of the synthesizing process, I have also had regard to the relevant circumstances of the case. I have formed the view that it just and reasonable to extend the period of limitation. Having performed the exercise to which I have just referred, it seems to me that the plaintiff has discharged the burden of proof and that his application should succeed. Thus, my conclusion is that the period of the issue of the Writ in this proceeding should be extended so as to embrace the date which is sought, and which I understand to be 23 June 2014.
76 I shall hear the parties as to the precise orders that are required.
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