Sell v Mornington and Cranbourne Float Service Pty Ltd
[2021] VCC 59
•9 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE VIA ZOOM COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-05355
| MIA SELL | Plaintiff |
| v | |
| MORNINGTON & CRANBOURNE FLOAT SERVICE PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne via Zoom | |
DATE OF HEARING: | 28 and 29 January 2021 | |
DATE OF RULING: | 9 February 2021 | |
CASE MAY BE CITED AS: | Sell v Mornington & Cranbourne Float Service Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 59 | |
RULING
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Subject:LIMITATION OF ACTIONS
Catchwords: Negligence – whether limitation period should be extended
Legislation Cited: Limitation of Actions Act 1958 (Vic), s23A
Cases Cited:WCB v Roman Catholic Trusts Corp for the Diocese of Sale (No 2) [2020] VSC 639; Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1; Tsiadis v Patterson (2001) 4 VR 114; Van Gervin v Amaca Pty Ltd [2012] VSC 131; Transport Accident Commission v Murdoch [2020] VSCA 98
Ruling: Order extending the period of limitation to the causes of action set out in the plaintiff’s Statement of Claim against the defendant to 12 November 2019
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Mr S Pinkstone | Henry Carus & Associates |
| For the Defendant | Ms B Myers | IDP Lawyers |
HIS HONOUR:
Introduction
1Mia Sell (“the plaintiff”) commenced common law proceedings for pain and suffering and pecuniary loss damages in respect to an incident suffered in the course of her employment with Mornington & Cranbourne Float Service Pty Ltd (“the defendant”) on 18 March 2008.
2In the common law proceeding, the plaintiff alleges there was negligence and/or breach of statutory duty and/or breach of contract on the part of the defendant, which was a cause of her injury, loss and damage.
3The common law proceeding is subject to the provisions of the Limitation of Actions Act 1958 (Vic) (“the Act”) and, in particular, s5(1), which provides for a six year limitation period. The six years expired on 18 March 2014. However, by reason of s134ABA of the Accident Compensation Act 1985 (Vic) (“the ACA”), it is agreed that the relevant limitation period is extended from the time the plaintiff lodged a s98C (of the ACA) Permanent Impairment Claim until 30 days after she was advised of the determination under s104B(2) of the ACA. It is agreed that the impairment claim lodged has the effect of adding 360 days to the limitation period. Therefore the plaintiff’s claim became statute barred on 13 March 2015.
4The defendant has filed a defence in which it raises the fact that the plaintiff’s proceeding is statute barred. Clearly, the plaintiff commenced the common law proceeding out of time.
5It is agreed that s23A of the Act is the legislative provision that enables an application to be made to the Court and permits the Court to extend the limitation period (provided it is “just and reasonable so to do”). Section 23A(3) relevantly provides:
“(3)In exercising the powers conferred on it by subsection (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following—
(a)the length of and reasons for the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c)the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
(e)the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received”.
Evidence
6In support of the application to extend time, the plaintiff relied on an affidavit sworn by her on 16 July 2020,[1] together with the exhibits attached to it. In addition, she relied on two affidavits sworn by her current solicitor, Ms Jessica King, of Henry Carus & Associates. Those affidavits were sworn on 3 June[2] and 17 July 2020.[3]
[1] Court Book (“CB”) 3
[2] CB 211
[3] CB 296
7The defendant relies on the affidavit of its solicitor, Mr Christopher Lane, sworn 13 August 2020[4] with exhibits thereto. In addition, the defendant relied upon further documents as tendered. The tendered documents comprised what is effectively a Joint Court Book.[5]
[4] CB 335
[5] By reference to the index to that Court Book, the tender was of pages 3-538 inclusive
8In addition to the affidavit and other relevant documents, the plaintiff provided an outline of opening submissions dated 27 January 2021. For convenience, they were noted as exhibit P2. The defendant provided an outline of opening submissions, identified as exhibit D1. In addition, the defendant provided a further outline of submissions dated 29 January 202, identified as exhibit D2.
9I have read all of the tendered documents and the written submissions. For the purposes of these reasons, I shall, however, only refer to the material to the extent necessary. These reasons assume some familiarity with the written submissions that were sensibly filed by the parties and avoided lengthy opening and closing submissions.
10In addition to the tendered documents, the plaintiff gave viva voce evidence. I have also taken the oral evidence and oral submissions into account.
A brief history of relevant events and dates
11The plaintiff was born in 1979. From age five or thereabouts, she has had an interest in horse riding and competing in riding competitions. She completed Year 12 and then attended agricultural college. Her working life has been spent mostly in and around horses, save for a period working on the family vineyard.
12The plaintiff commenced employment with the defendant in early 2008. She was employed to drive a horse float.
13The plaintiff alleges that on 18 March 2008, she was injured in circumstances that give rise to an entitlement to common law damages. On that date, she was driving a truck owned by the defendant when a warning light came on to indicate that the truck was overheating. Then when she was lifting a bucket of water while attempting to fill the radiator of the truck with water, she developed low back pain (“the incident”).
14On 5 April 2008, the plaintiff submitted a WorkCover claim for compensation. That claim was (at least initially) accepted, and weekly payments and medical expenses were paid to her. There have been times when the plaintiff’s entitlement to such benefits has been disputed. At present, she is in receipt of weekly payments and payment of medical expenses.
15The plaintiff resumed light duties with the defendant on 10 June 2008. She remained in that employment until approximately late 2008/early 2009.
16In late January and mid-February 2009, the relevant WorkCover Agent warned the plaintiff that her weekly payments were to be terminated for an alleged failure to comply with return to work obligations. That was the subject of a referral to the WorkCover Conciliation Service and a limited resolution was arrived at.
17Following the incident and the plaintiff’s claim for compensation, Cambridge Integrated Services Victoria Pty Ltd, as the WorkCover Agent (“the Agent”) of the defendant, arranged for a circumstance investigation report. A report was produced by MPOL Group Pty Ltd on 7 May 2008.[6] That report deals with the circumstances of the plaintiff’s claimed injury and, amongst other things, reported to the Agent as to the common law potential of the claim.[7] For the purposes of the report, the plaintiff was interviewed on 28 April 2008, in the presence of her mother. In addition, a statement was taken from Mr Rodney Demmler on 29 March 2008, who was then employed as a transport clerk with the defendant.[8]
[6] CB 349
[7] CB 360
[8] CB 366
18On 28 January 2009, the plaintiff attended Mr John Salanitri, a solicitor at Maurice Blackburn Lawyers. By letter dated 29 January 2009,[9] Mr Salanitri provided a summary of the advice he had provided. That letter dealt with a range of issues including common law damages. Relevantly, Mr Salanitri advised the plaintiff that there is a six year limitation period. The letter further advised in respect to statutory entitlements and that, upon her injury stabilising, those entitlements would be reviewed. In respect to common law, Mr Salanitri advised the plaintiff that:
“In the process of pursuing this claim we will review any potential common law claim you may have, but reiterate that it is our view that you will have difficulty proving that your injury was sustained in negligent circumstances.”
[9] CB 81
19In July 2009, a s98C ACA permanent impairment application was lodged on behalf of the plaintiff by Maurice Blackburn.
20By letter dated 8 June 2010, Maurice Blackburn wrote to the plaintiff advising of an offer to settle her lump sum impairment claim.[10] That letter also repeated advice regarding serious injury and common law. Mr Salanitri repeated his opinion that the plaintiff was “not likely to recover damages at common law” as she was not “likely to prove that your injuries were sustained in negligent circumstances”. Mr Salanitri’s letter advised the plaintiff that any common law claim would be subject to the “statute of limitation expiring period” and that Court proceedings needed to be issued no later than 17 August 2014.[11]
[10] CB 89
[11] That advice is clearly wrong but nothing turns on that in this application
21The plaintiff provided instructions to Maurice Blackburn to accept the lump sum impairment offer. Those instructions are recorded in a document signed by her and dated 1 July 2010.[12] In those instructions, the plaintiff instructed Maurice Blackburn that she did not wish to proceed with a common law claim, and that if she wished to alter her instructions, then she must issue Court proceedings no later than 17 August 2014.
[12] CB 508
22The plaintiff next attended solicitors when a contact was made with Slater & Gordon at its Morwell office. It appears the plaintiff had some form of discussion (either by telephone or in person) on 16 July 2012. By letter dated the same day, Slater & Gordon provided general advice to the plaintiff regarding her WorkCover claim, including advice regarding common law negligence claims. That letter advised of the six year limitation period and because she was injured on 18 March 2008, the last date to bring a claim was 17 March 2014. The advice from Slater & Gordon at that time was that any case in negligence was “finely balanced” and further investigation would be needed.
23On 10 October 2012, the plaintiff had a further telephone conversation with a solicitor at Slater & Gordon’s Morwell office. Those discussions were noted in a letter of 10 October 2012 that was sent to the plaintiff.[13] In that letter, the plaintiff was advised by a lawyer at Slater & Gordon that she would have “reasonable prospects of suffering a serious injury, but that you would have difficulties in establishing negligence of another party”.
[13] CB 535
24Next, around late 2012, the plaintiff consulted new solicitors, Simon Parsons & Co, when she attended their office in Morwell. With assistance from those solicitors, the plaintiff’s WorkCover weekly payments were reinstated some time in 2013.
25The plaintiff next consulted solicitors when she attended Ryan Carlisle Thomas. On 10 September 2014, she met with Mr Ross Inglis, legal executive, at Ryan Carlisle Thomas in Melbourne. Following that attendance, Mr Inglis provided a lengthy letter of advice to the plaintiff dated 11 September 2014.[14] In that letter, Mr Inglis records the plaintiff’s instructions and states that based on her description of how she was injured “presumably we could not argue that that is an unreasonable task for you to perform”. The letter deals with statutory and common law entitlements. The plaintiff was advised by Ryan Carlisle Thomas that all common law actions were subject to a six year limitation period, failing which her rights would be “barred forever”.[15]
[14] CB 160
[15] CB 164
26There was then some ongoing interaction between the plaintiff and Ryan Carlisle Thomas leading up to another meeting with Mr Inglis on 24 November 2016.[16] The plaintiff’s mother also attended that meeting. According to the file note prepared by Mr Inglis, in that meeting he reminded the plaintiff of her instructions in September 2014 that she was already out of time and that he did not believe she had an action against her former solicitors because the circumstances of the radiator injury did not give rise to an action for damages in his opinion.
[16] CB 537
27The plaintiff next consulted another firm of solicitors following a phone call made by her mother to Henry Carus & Associates on or about 19 April 2017. The plaintiff then met in person with Ms King, her current solicitor at Henry Carus & Associates, on 1 May 2017. The affidavit of Ms King, sworn 2 June 2020,[17] details relevant attendances. Various steps were taken by Henry Carus & Associates to obtain documents in respect to the plaintiff’s claim.
[17] CB 300
28On 1 March 2018, the plaintiff’s current solicitors wrote to the Victorian WorkCover Authority advising them of the intention to pursue a serious injury application.
29On 7 June 2018, the plaintiff lodged a serious injury application.
30By letter dated 12 March 2019, the solicitors for the defendant advised that the serious injury application was denied.
31On 5 April 2019, the plaintiff issued an originating motion in this Court seeking leave to commence a common law proceeding.
32By letter dated 26 June 2019, the solicitors for the defendant granted the plaintiff a “serious injury certificate”.
33The plaintiff and the defendant then engaged in the WorkCover statutory process.
34On 12 November 2019, the writ and statement of claim was issued and served on the defendant. The notice of appearance was filed on 21 November 2019.
35By late December 2019, it was advised that the defendant was deregistered. The plaintiff then undertook steps to reregister the defendant for the purposes of the litigation.
36On 14 January 2020 a defence was filed which specifically pleaded that the plaintiff’s claim was statute barred.
37On 13 March 2020 the plaintiff filed a summons seeking leave to extend the limitation period.
38Pausing. The plaintiff has undergone various treating and medico-legal assessments since the claimed incident. I will deal with that material as necessary, but it is not necessary to set it out in the chronology or deal with it in detail. This is not a case in which the defendant says it is prejudiced, for example, by being unable to investigate the nature and extent of the plaintiff’s claimed medical condition.
The evidence of the plaintiff
39On 15 October 2009, the plaintiff consulted Dr Jill Hosking, consultant psychiatrist, for treatment for her psychiatric condition. She continued to attend Dr Hosking for some years until the doctor retired. In a report of 22 February 2010, Dr Hosking says that the plaintiff:
“…can be belligerent and hostile to those in authority at times, which is part of her personality”.[18]
[18] CB 109
40Dr Hosking and other medico-legal examiners record that the plaintiff had something of a difficult childhood and that she has fractured relationships with family. Dr Hosking’s assessment that the plaintiff can be belligerent and hostile to those in authority was my impression of her during her oral evidence. Her counsel accept that to be the case. I do not wish that to sound as if I intend that to be critical or unkind to the plaintiff. It is simply a statement of fact.
41The other statement of fact about her oral evidence is that most of it was of little assistance to the resolution of the issue before me, namely, whether in all the circumstances it is just and reasonable to extend the limitation period. I do not need to go to the transcript in detail. The thrust of the plaintiff’s evidence was that she simply could not remember events at all. But as an example, when asked in cross examination whether she could recall attending Mr Salanitri at the Maurice Blackburn Dandenong office and having discussions with him about her claim, her answer was “I’m sorry but I could not tell you what you told me three hours ago”.[19]
[19] Transcript (“T”) 67, Lines (“L”) 29 - 30
42I further conclude that her affidavit evidence is of little assistance to the resolution of the issues in this case, particularly in light of her oral evidence. It is obvious that her affidavit was prepared on the basis that various documents were shown to her and exhibited to the affidavit for the purpose of attempting some sort of a timeline of events. Additionally, she said that she used diaries kept by her mother to provide a timeline of events.[20] There is considerable reconstruction in her affidavit. Having had the benefit of the plaintiff’s oral evidence, I place little weight on what she has said in her affidavit or in the witness box. Quite appropriately, her counsel accepted that it was open to me to make that conclusion.[21]
[20] T49, L10-13
[21] T99, L19-20
Legal principles
43Before turning to consider the balance of the evidence, it is convenient to mention some of the relevant legal principles.
44The plaintiff bears the onus to establish that it is just and reasonable to order the extension of the relevant limitation period applicable to her common law proceeding.
45In determining whether the plaintiff has discharged her onus I am required to take into account all of the circumstances of the case, and to synthesise all of the matters required to be taken into account by s23A(3) of the Act.
46An important issue that arises is whether the defendant is now able to get a fair trial. The relevant test is whether the defendant is able to have a fair trial, not a perfect one. As Keogh J said in WCB v Roman Catholic Trusts Corp for the Diocese of Sale (No 2):[22]
“A party is entitled to a fair trial, not a perfect one. The lapse of time, absence of documentary evidence, or inability to call witnesses unavailable because of death or incapacity, does not automatically result in a trial being unfair to the degree that a stay should be granted”.
[22] [2020] VSC 639 at paragraph 204
47In the often cited judgment of McHugh J in Brisbane South Regional Health Authority v Taylor,[23] His Honour said that:
“First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even ‘cruel’, to a defendant to allow an action to be brought long after the circumstances which give rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them”.
[23] (1996) 139 ALR 1
48It is relevant that the legislation considered in Brisbane South is quite different to s23A of the Act,[24] but, as has been noted, the rationale as to which McHugh J referred in Brisbane South underpinned and informed the legislative purpose of provisions which impose limitation periods, and those giving the Court the power to extend time. The subject matter of those provisions is the lapse of time and the effect of delay on the quality of justice.[25]
[24] Tsiadis v Patterson (2001) 4 VR 114 per Buchanan JA at paragraph 31
[25] Van Gervin v Amaca Pty Ltd [2012] VSC 131 per Beach J at paragraph 46
49In the resolution of this application, I accept that the approach to it is as set out by Buchanan JA in Tsiadis, and for the avoidance of doubt as to how my task is to be approached, it is convenient to set out what His Honour said in Tsiadis as follows:
“The matters which the Court is required by s.23A to take into account cannot all be weighed against each other. For example, prejudice to the respondent in being unable to recover any compensation cannot be measured against prejudice to the appellant in conducting her case. Rather, 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 bears the onus of persuading the Court that it is just and reasonable to extend the limitation period. I agree with Brooking, J. in Bell v. S.P.C. Ltd when he said:
‘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. ... It is for the plaintiff to satisfy the Court that it is just and reasonable to extend the period.’ ”
The balance of the evidence
50The plaintiff has suffered significant ongoing physical and psychiatric symptoms since the incident. Dr Norman Rose, consultant psychiatrist, on 11 July 2009 noted that the plaintiff had suicidal ideation.[26] Dr Simon Kennedy, consultant psychologist, in March 2014 noted the plaintiff had difficulty with concentration and mood, and from a psychological perspective was only fit for part-time work. Dr Paul Kornan, consultant psychiatrist, in a report dated 2 May 2015, noted that the plaintiff had been feeling suicidal the Friday before the medico-legal examination and there was a need for ongoing psychiatric treatment. The short point is that the plaintiff has had ongoing fluctuating psychiatric symptoms with the need for ongoing psychiatric care. She has been suicidal at times. In addition, she has had ongoing low back pain, requiring an L5‑S1 lumbar fusion in November 2011 and then a further two-level surgical decompression in June 2014.
[26]CB 420
51The plaintiff has at times been ‘incapacitated’ due to her psychiatric illness, or while undergoing and recovering from spinal surgery. But the medical evidence does not go so far as to support a submission that the plaintiff was unable to understand or prosecute her common law claim before attending Henry Carus & Associates. The medical evidence does not establish that she was under a ‘disability’ or ‘incapacitated’ in either a strict medical or legal sense.
52The affidavit filed on behalf of the defendant deals with “likely prejudice”.[27] That likely prejudice includes the deregistration of the defendant; an inability to locate documents that might be relevant other than those in the circumstance report; and the unavailability of witnesses. Mr Robert Justice at one time owned the defendant, and still had a continuing involvement in that business in March 2008. Mr Justice died in September 2018. Mr Brett Justice (the brother of Robert Justice) was also involved in the running and management of the defendant. He suffered a debilitating stroke approximately five years ago and is now in a nursing home with cognitive deficiency. Mr Rodney Demmler died in November 2019. Other potential witnesses either have no memory of the plaintiff or so far have been unable to be located.
[27]CB 342
The Parties’ submissions
53I take into account the parties’ submissions as contained in Exhibit P2 and Exhibits D1 and D2.
54The defendant’s submissions are neatly summarised in paragraph 53 of Exhibit D2. The defendant concludes its submission as follows:
“Synthesising the various considerations, the defendant submits that the Court should not be satisfied that, in all the circumstances, it is just and reasonable to exercise its discretion to extend the period. It is no longer possible for an acceptably fair trial to be had in this case in light of the specific and general prejudice occasioned by the passage of time since the accrual of the cause of action.”
55The plaintiff takes issue in a number of ways with the likely specific and general prejudice asserted on behalf of the defendant. Firstly, she submits that it is significant that the defendant has not alleged any actual prejudice in respect to causation. Secondly, she submits that while she may have been advised of relevant limitation periods when in time, the pessimistic advice provided to her before consulting her current solicitors is a reasonable explanation of why she did nothing sooner. Thirdly, she submits that the overall delay is not great, and that it is also relevant that she had to comply with various statutory processes (the serious injury process and the process of re-registering the defendant) before she could advance her common law claim. Fourthly, she submits that the defendant investigated her claim and that she co-operated with that investigation at a very early period of time. The statement of Mr Demmler is broadly consistent with her allegations. Finally, she submits that the defendant is, for practical purposes, no worse off than if she had commenced a proceeding in time.
Analysis – Section 23A
(a) The length of and reasons for the delay on the part of the plaintiff
56The defendant submits that on any view the delay has been inordinate. I do not agree. The delay is approximately three years from the expiration of the limitation period until the plaintiff’s current solicitors put the Victorian WorkCover Authority on notice that she intended to pursue a serious injury/law claim. That is approximately nine years from the incident. Once the plaintiff’s serious injury application was lodged, she was unable to advance the litigation until the serious injury and pre-issue processes were exhausted and then not until she had re-registered the defendant. Therefore, working backwards, there is a reasonable explanation on her part why the case stalled once the serious injury application was lodged.
57That is not to say that the length of delay is minor. Ten years had passed by the time the plaintiff made her serious injury application, and that is a considerable delay. But I do not agree that it is inordinate, in the sense of meaning unusually or disproportionately large.
58The reasons for the delay leading up to consulting her current solicitors are difficult to discern in circumstances where the plaintiff’s evidence does not reveal an explanation. Her ultimate submission on this point was that I could infer the delay was because she kept hitting a brick wall[28] by finding solicitors who were pessimistic about her prospects of success. I reject the ‘brick wall’ submission. It could equally be said that perhaps she had proper advice, which of course is not a brick wall, until she simply got the advice that she wanted to hear. It is not for me to determine whether the earlier solicitors in time got it right or wrong, or indeed whether her current solicitors have correctly or incorrectly considered the strength of the common law claim. In the absence of any useful evidence from her on this point, all I can do is conclude that the evidence discloses that she received legal advice when in time (and after) and for whatever reason she did nothing to advance her common law claim, until consulting her current solicitors. The probability is that she did nothing to advance the claim because she was accepting of the advice provided to her ‘along the way’, but there is no direct evidence about that, other than her signed instructions to Maurice Blackburn in 2010.
[28] T96, L22-26
59The plaintiff calls in aid the decision in Transport Accident Commission v Murdoch.[29] I do not accept that this case is analogous with Murdoch. In the present case the plaintiff does not say that, when advised of her potential common law rights while in time, she chose to do nothing because she was accepting of the advice. Rather, she simply says she does not recall receiving such advice. Likewise this is not a situation where the plaintiff’s injury was not serious within time and she subsequently took steps to prosecute the claim when it became clear that the injury was serious, which was the scenario in Murdoch. Also, for completeness, in Murdoch the defendant did not allege specific prejudice.
[29][2020] VSCA 98
60In short, the delay is considerable, but I do not consider it inordinate. There is no real explanation for that delay, other than the signed instructions to Maurice Blackburn and the inference, or probability, that the plaintiff received pessimistic legal advice when in time and, based on that advice, did not then pursue the common law claim. The reason why she returned to solicitors in 2017 is not entirely clear, but I accept the submission that it was likely because again she wanted to see what could be done about her claim.
(b) The extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant
61I accept that this is a case where there is likely to be specific prejudice to the defendant. The truck was disposed of soon after the plaintiff was injured. The mechanics who had been engaged to repair the truck are no longer operational. The Justice brothers are now deceased or otherwise incapacitated. Mr Demmler is deceased.
62The plaintiff submits there is no evidence that any documents were ever in existence that are now no longer in existence. She submits that there is nothing to indicate that the Justice brothers could have ever given any meaningful evidence about how she was injured. The plaintiff submits that the defendant can rely upon the statement from Mr Demmler. While her submissions may to some extent be factually accurate, they fail to acknowledge the obvious: namely, where witnesses are deceased or unable to give evidence, the defendant clearly cannot explore with the witnesses what useful evidence they could have given. In circumstances where the plaintiff at a late stage widened her allegations to include breach of statutory regulation and breach of the employment contract, there is force in the defendant’s submissions that it is prejudiced because the relevant officers and employees of the defendant are unavailable. There is no one who can give instructions, for example, about systems of work, what documents may have been in existence (for example manual handling risk assessments, even if in a generic sense), and the like. The statement by Mr Demmler may be admitted into evidence, but by the same token it is not a proof of evidence that a party might take for the purposes of a common law claim, or taken de bene esse.
63There is specific prejudice to the defendant by the loss of the ability to determine what useful evidence the missing witnesses could have given. But this is not a case where an eye witness has died, or there is strong evidence of a critical document now missing or destroyed. So while I accept there is specific prejudice, I do not consider it to be so great so as to be determinative of the application. The plaintiff was the only eye witness to her injury. To some extent the defendant was always going to be limited in the evidence it had available at trial other than to test the plaintiff.
(c) The extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant
64This provision does not appear to be relevant. The defendant commissioned an investigation report and has shared that with the plaintiff.
(d) The duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action
65This is not a case where the plaintiff has made out ‘disability’ either in a legal or medical sense. As mentioned earlier, she has from time to time been unwell, both physically and psychiatrically, and I accept that might have made it difficult for her to pursue her common law claim at certain times, but overall the medical evidence is that she has always had insight and capacity.
(e) The extent to which the plaintiff acted promptly and reasonably once she knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages
66The plaintiff’s submission is that she has followed the advice of solicitors. Relevantly, she says that once her current solicitors gave her more robust advice, then she has done everything asked of her. I pause to note that there is no actual evidence as to when it was that the plaintiff was told that it was possible to apply to extend the limitation period, or when she decided to pursue an extension time. But generally speaking the documentary evidence demonstrates objectively that she acted in a timely manner once her current solicitors got the ball rolling.
(f) The steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice she may have received
67This section collapses with some of the discussion earlier in these reasons. There is a consistent pattern of the plaintiff attending for medical treatment and for medico-legal examinations. This is not a situation in which the defendant would be prejudiced through a lack of medical material.
68Maurice Blackburn, Slater & Gordon, and Ryan Carlisle Thomas were not enthusiastic about the plaintiff’s prospects of success in a common law claim. There is no evidence to prove that the plaintiff did not understand the advice given to her by those solicitors or that she did anything other than accept it and follow it. It is objectively obvious that she did continue to seek legal advice, culminating in the retention of her current solicitors and a decision to pursue the common law claim.
General considerations and a resolution of the application
69The factors set out in s23A of the Act are not exhaustive. The decision to extend the period of limitation is to be made based on all the relevant circumstances of the case.
70I consider it relevant that the plaintiff has a significant work-related injury to her back. She has undergone two surgical procedures without any apparent success. She has developed a significant and well documented secondary psychiatric reaction. She has at times has been suicidal and very unwell.
71The plaintiff’s personality is to be belligerent and hostile to persons in authority. She was an argumentative and poor witness. But she was consistently a poor witness. Whether her personality impacted on how she conveyed instructions to the solicitors she saw when in time is a matter of speculation. I accept, however, that when in time she did seek legal advice, and again, at the risk of repetition, there is nothing to suggest anything other than a probability that she was accepting of that advice and understood it. It is also clear that at various times her focus was on her statutory entitlements.
72I accept that there is specific prejudice to the defendant because of the unavailability of deceased or infirm witnesses. But I do not accept that any of those witnesses would be so essential to a defence of this proceeding such that the defendant cannot now get a fair trial. This was always going to be a case of an unwitnessed incident with limited documentary evidence, even if the plaintiff had commenced proceedings at a very early stage.
73The plaintiff cooperated at an early stage by agreeing to provide a statement to a WorkCover investigator. The defendant does at least have the benefit of the statement of Mr Demmler, even if he is no longer available.
74The plaintiff accepts that the defendant had the truck serviced as recently as the day before her injury. Therefore, the defendant still has an argument that that the recent servicing of the truck is sufficient to demonstrate that it had acted reasonably and had a safe system of work. In circumstances where the plaintiff needed to have her injury stabilise and to be assessed as a ‘serious injury’, the truck was never going to be available for inspection for the common law trial. Equally it is likely that the defendant would not have had any documents in existence in relation to the specific task that the plaintiff was performing at the time she was injured. Perhaps the defendant may have had other more generic documents or policies in respect to manual handling procedures and the like, and those relevant documents cannot now be produced, although the conclusions in the circumstance report indicate otherwise.
75There is force in the submissions of the defendant that there has been a significant delay and specific prejudice to it. But on the other hand, the plaintiff has a significant and well documented injury. She cooperated with investigators at an early stage. There has been a veracity and consistency in the history that she has given to doctors over many years. I accept that she continued to seek legal advice until more robust advice was provided by her current solicitors. Since then she has acted reasonably to advance the litigation.
Conclusion
76Taking all factors into consideration in what ultimately is a fairly close-run thing, I am of the opinion that it is just and reasonable in all the circumstances to extend the limitation period. In doing so I conclude that the absence of documentary evidence (if it ever existed) and the unavailability of witnesses does not create a situation whereby the defendant cannot receive a fair trial.
77There will be an order extending the limitation period to the causes of action set out in the plaintiff’s statement of claim against the defendant to 12 November 2019.
78I will hear the parties as to the appropriate orders to make, if any, in respect to costs.
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