Shaginian v ACN 006 071 496 Pty Ltd (deregistered) (formerly known as ‘Moran of Melbourne Pty Ltd') (Ruling)
[2014] VCC 2040
•8 December 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-02951
| EDWARD SHAGINIAN | Plaintiff |
| v | |
| ACN 006 071 496 PTY LTD (deregistered) (formerly known as ‘MORAN OF MELBOURNE PTY LTD’) | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 October 2014 | |
DATE OF JUDGMENT: | 8 December 2014 | |
CASE MAY BE CITED AS: | Shaginian v ACN 006 071 496 Pty Ltd (deregistered) (formerly known as ‘Moran of Melbourne Pty Ltd’) (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2040 | |
RULING
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Subject: LIMITATION OF ACTIONS
Catchwords: Extension of limitation period – personal injuries – serious injury application pursuant to s134AB of the Accident Compensation Act 1985 – death of witness – loss or destruction of documents – inordinate delay – prejudice to the defendant
Legislation Cited: Limitation of Actions Act 1958, s23A; Accident Compensation Act 1985, s134AB
Cases Cited:Shaginian v Moran of Melbourne Pty Ltd [2013] VCC 23; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Bell v SPC Ltd [1989] VR 170; Richards v State of Victoria & Ors [2001] VSC 52; Delai v Western District Health Service & Anor [2009] VSC 151; Cowie v State Electricity Commission of Victoria [1964] VR 788; Tsiadis v Patterson (2001) 4 VR 114; Koumorou v State of Victoria [1991] 2 VR 265; Repco Corporation v Scardamaglia [1996] 1 VR 7; Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614; Ford Motor Company (Aust) Ltd v Kulic [1988] VR 152; Myer Melbourne Ltd v Hammond [1984] VR 40; Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171; Cairns v Trowelcoat Pty Ltd [2014] VSC 129
Ruling:Time to commence proceeding extended.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Clements QC with Ms M Tait | Zaparas Lawyers |
| For the Defendant | Mr N Rattray, QC | Minter Ellison |
HER HONOUR:
The application
1 The plaintiff seeks an extension of the limitation period, nunc pro tunc, in which to commence this proceeding against the defendant, whereby he claims damages for injuries that he sustained in the course of his employment with the defendant.
2 The application is brought pursuant to s23A of the Limitation of Actions Act 1958 (“the Act”) for an extension of time in which to bring a common law claim for damages in respect of injuries he alleges he suffered as a result of a work injury on 3 December 2002. The applicable limitation period was six years from the date of accrual of the cause of action,[1] and therefore expired on 3 December 2008.
Section 134AB of the Accident Compensation Act 1985
[1]Section 5(1)(a) of the Act
3 As the plaintiff’s injuries were suffered in the course of his employment, his right to bring a proceeding claiming common law damages for his injuries is governed by s134AB of the Accident Compensation Act 1985 (“the ACA”).
4 On 25 January 2013, his Honour Judge Brookes granted leave to the plaintiff to commence a proceeding against the defendant to recover damages at common law for pain and suffering.[2]
[2]Shaginian v Moran of Melbourne Pty Ltd [2013] VCC 23 at Plaintiff’s Court Book (“PCB”) 208-214B
5 Section 134ABA of the ACA provides that various periods of time are to be disregarded when calculating the period of time under the Act within which proceedings for the recovery of damages permitted by s134AB may be commenced. However, s134ABA does not apply in this case, because both periods of time referred to in s134ABA(a) and (b) commenced after the expiry of the six-year limitation period on 3 December 2008.
The Plaintiff’s separate claim against the Defendant for an injury to his back
6 The plaintiff also brought a separate claim for compensation and a claim for common law damages against the defendant for an injury to his back that he suffered on 28 March 2006 in the course of his employment with the defendant.
7 In November 2008, the plaintiff’s claim for damages for injury to his back was settled.
Issues
8 The defendant opposed the application for an extension of the limitation period. The defendant relies upon the length of delay as the basis for its opposition. Further, the defendant submits it has suffered actual prejudice on the following basis –
(a) no relevant documents exist concerning the plaintiff’s work or injuries;
(b) an important witness died on 9 June 2007, being a workplace first aid officer who treated the plaintiff;
(c) the plaintiff’s complaints as to work processes and staff levels cannot be tested by reference to records which would otherwise have been available.
9 Counsel for the plaintiff, in essence, submitted that there are adequate reasons for the delay, and the plaintiff acted reasonably throughout. Further, although the plaintiff acknowledges that the defendant has suffered inevitable prejudice arising from the delay, there is no significant prejudice to the defendant due to the particular features of this case.
Statutory framework
10 The Court has power under s23A of the Act to extend the limitation period if it decides that it is just and reasonable to do so,[3] having regard to all of the circumstances of the case, including the matters listed in s23A(3).
[3]Section 23A(2)
11 Under s23A(3) of the Act, the 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.”
Relevant principles
12 The most recent High Court decision in relation to an application for extension of time is that of Brisbane South Regional Health Authority v Taylor.[4] The majority in that case determined that it is, prima facie, prejudicial to the defendant to allow the commencement of an action outside that period. McHugh J explained the rationale for limitation periods as follows:[5]
“Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Secondly, it is oppressive, even ‘cruel’, to a defendant to allow 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. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period.
…
Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.”[6]
[4](1996) 186 CLR 541
[5](Supra) at 552
[6]Supra
13 The legal principles relevant to this application which I must apply in considering the plaintiff’s application can be summarised as follows:
·The onus in establishing that it is just and reasonable to grant the plaintiff’s application is borne by the plaintiff.[7]
·If the defendant places evidence before the Court sufficient to lead to the conclusion that prejudice would be occasioned by granting the plaintiff an extension of time, then it is for the plaintiff to show that the defendant’s evidence does not demonstrate prejudice.[8]
·The competing considerations referred to in s23A of the Act are not to be weighed against each other, but rather the Court must synthesise the competing considerations in arriving at a conclusion that takes account of all of them, bearing in mind that the plaintiff bears the onus of persuading the Court that it is just and reasonable to extend the limitation period.[9]
·The delay referred to in s23A of the Act is the delay between the accrual of the cause of action and the making of the application for an extension of time.[10]
·The delay attributed to the plaintiff’s legal representative must be considered.[11]
·The Court can take into account prejudice –
§ which comes about by reason of a lapse of time involved in that period of delay;[12] and
§ which can be established by the defendant.
·An inordinate delay may be taken as evidence of prejudice.[13]
·The test of prejudice must not include whether an order extending time would make the defendant any worse off than if the proceeding had been commenced within, or at the end of the limitation period. What must be considered is that the defendant’s potential liability expired at the end of the limitation period and that the extension of time would impose a new legal liability on the defendant.[14]
[7]Bell v SPC Ltd [1989] VR 170 at paragraphs [174] – [175]; Brisbane South Regional Health Authority v Taylor (supra); Richards v State of Victoria & Ors [2001] VSC 52 at paragraph [11] and Delai v Western District Health Service & Anor [2009] VSC 151 at paragraph [21]
[8]Cowie v State Electricity Commission of Victoria [1964] VR 788 at 793; Brisbane South Regional Health Authority v Taylor (supra) at 547
[9]Bell v SPC Ltd (supra) at paragraph [125]; Tsiadis v Patterson (2001) 4 VR 114 at paragraph [123] and Delai v Western District Health Service & Anor (supra) at paragraphs [21] – [22]
[10]Koumorou v State of Victoria [1991] 2 VR 265 at 271; Repco Corporation Ltd v Scardamaglia [1996] 1 VR 7 at 11 and Delai v Western District Health Service & Anor (supra) at paragraph [22]
[11]Repco Corporation Ltd v Scardamaglia (supra) at 13
[12]Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614 at 622
[13]Tsiadis v Patterson (supra) at 123 – 124; Delai v Western District Health Service & Anor (supra) at paragraph [23] and Brisbane South Regional Health Authority v Taylor (supra) at 551
[14]Brisbane South Regional Health Authority v Taylor (supra) at 554 – 555
Evidence
14 The plaintiff relied upon an affidavit sworn on 26 February 2014, and an affidavit deposed to by Yianni Zaparas, Solicitor, sworn on 3 March 2014. The affidavit of the plaintiff’s solicitor, Mr Zaparas, sets out certain facts and events regarding this period of delay. Much of the affidavit material of Mr Zaparas is supported by documentary exhibits. I will not summarise the material, but will cite relevant portions.
15 The defendant relied upon an affidavit of Carmen Buccheri, Solicitor, sworn on 26 May 2014.
16 It was not in dispute that the plaintiff delayed approximately eleven-and-a-half years from the date of his injury (December 2002), being the relevant date for the cause of action, until the date of making this application in May 2014.
17 The injury to the plaintiff’s shoulder occurred on 3 December 2002. On 4 December 2002, the plaintiff consulted Dr Fernando, general practitioner. Based on the plaintiff’s right shoulder and a hernia he suffered, Dr Fernando certified the plaintiff for modified duties until 11 December 2002. On 5 December 2002, the plaintiff completed a claim for his right shoulder and groin. The plaintiff continued to work until 26 February 2003, when he ceased work to undergo a hernia operation.
18 The employer completed a Claim Report dated 26 March 2003. The claim was accepted by the insurer, QBE.
19 On 5 May 2003, the plaintiff returned to work performing modified duties, and then, from June 2003, he worked normal duties.
20 In June 2003, as a result of persisting right shoulder pain, his general practitioner, Dr Lebedev, gave the plaintiff injection treatment. The plaintiff had no further time off work or light duties. On 11 June 2003, an ultrasound of his right shoulder was performed, which the plaintiff understood to be normal. The plaintiff’s evidence was that Dr Lebedev sought funding for an MRI investigation, but QBE refused to pay for it at the time.[15] The plaintiff was referred to physiotherapy and attended for three months. This physiotherapy treatment was paid for by the insurer.
[15]Affidavit of Edward Shaginian sworn on 26 February 2014 at paragraph [8]
21 On 28 March 2006, the plaintiff completed a Claim Form for injury to his back, which was suffered in the course of his employment with the defendant. The plaintiff brought a claim for compensation and for common law damages against the defendant for the back injury.
22 The plaintiff ceased work in February 2007 as a result of his back injury.
23 On 9 October 2008, the plaintiff underwent a further ultrasound and x-ray of his right shoulder which demonstrated a full-thickness tear of his shoulder. Dr Ebrahim suggested he needed a referral to a surgeon.
24 The plaintiff’s evidence is that after the ultrasound and x-ray on 9 October 2008, he approached his solicitor regarding the appropriate action to take regarding his left shoulder. The exact date is uncertain, but I accept that the contact with his solicitor occurred between 9 October 2008 and 18 November 2008. The plaintiff’s evidence was that he was told by the solicitor to focus on his back injury alone, as it was approaching a settlement. The solicitor did not have a file note of this contact with the plaintiff. However, the solicitor’s evidence is that he recalls some discussions with the plaintiff, which were to the effect that it was best not to “throw [the shoulder injury] into the mix”[16] as they were working on finalising his back injury claim soon.
[16]Affidavit of Yianni Zaparas sworn on 3 March 2014 at paragraph [30] (PCB 16-17)
25 In November 2008, the plaintiff’s claim for damages for injury to his back was settled. On 18 November 2008, the release terms were signed.
26 On 18 December 2008, the plaintiff specifically instructed his solicitor to investigate his entitlements with respect to his right shoulder.
27 On 30 January 2009, the plaintiff’s solicitor requested the file from QBE Workers Compensation (Vic) relating to the plaintiff’s claim for compensation for injuries he suffered on 3 December 2002.[17]
[17]Affidavit of Yianni Zaparis, sworn on 3 March 2014 at paragraph [34] (PCB 17)
28 On 16 March 2009, his solicitor lodged with QBE the plaintiff’s claim for an impairment benefit for an injury to the plaintiff’s right shoulder and left hernia and gastric condition.[18]
[18]Affidavit of Yianni Zaparis, sworn on 3 March 2014 at paragraph [35] (PCB 17)
29 On 22 April 2009, QBE accepted liability for the plaintiff’s right shoulder and left hernia injuries – the date of injury being 3 December 2002 – and determined the plaintiff’s impairment benefit, which was accepted by the plaintiff.[19]
[19]Affidavit of Yianni Zaparis, sworn on 3 March 2014 at paragraph [37] (PCB 17)
30 The plaintiff’s evidence was that at the end of May 2009, he commenced physiotherapy for right shoulder pain. In July 2009, Dr Lebedev referred the plaintiff to an orthopaedic surgeon, who subsequently arranged for an MRI examination of the right shoulder.
31 On 21 August 2009, a s134AB application for pain and suffering only was lodged with WorkSafe in respect to the plaintiff’s right shoulder injury.
32 On 22 December 2009, an Originating Motion was issued in this Court pursuant to s134AB in respect to the right shoulder injury, which was fixed for hearing on 20 October 2010.
33 The hearing date was adjourned on three occasions. Initially, it was adjourned because the plaintiff wished to proceed with right shoulder surgery. QBE refused to be liable for the costs of such surgery, and they refused a request for weekly payments in respect to the right shoulder injury. As a result, Magistrates’ Court proceedings were issued. Another adjournment request was made on the basis that the plaintiff sought to refer to the Medical Panel the issue of weekly entitlements and payment for surgery. The Medical Panel provided its Opinion on 21 May 2012. The Panel formed the view that surgery was needed for the right shoulder and the incapacity arose from the right shoulder. As a result, the Magistrates’ Court proceeding resolved, and the plaintiff received payments.
34 On 24 and 25 January 2013, his Honour Judge Brookes heard the serious injury application for leave to commence proceedings at common law. On 25 January 2014, his Honour Judge Brookes granted leave to the plaintiff to commence a proceeding against the defendant to recover damages for pain and suffering with respect to the right shoulder injury.[20]
[20]Shaginian v Moran of Melbourne [2013] VCC 23 at PCB 208–214B
35 The plaintiff then participated in the compulsory statutory conference, statutory offer and statutory counter offer process, after which the Writ dated 7 June 2013 in the proceeding could be, and was, filed on 12 June 2013.
36 On 12 November 2013, the defendant filed its Defence, alleging the plaintiff’s proceeding was statute barred pursuant to s5 of the Act.
Analysis
The length of and reasons for the delay[21]
[21]Section 23A(3)(a) of the Act
37 The delay referred to in s23A of the Act is the delay between the accrual of the cause of action and the making of the application for an extension of time.[22]
[22]Koumorou v State of Victoria (supra) at 271; Repco Corporation Ltd v Scardamaglia (supra) at paragraph [11] and Delai v Western District Health Service & Anor (supra) at paragraph [22]
38 The overall length of delay in this case was considerable.
39 The plaintiff offered detailed reasons for the delay. In doing so, it was convenient for the plaintiff to apportion the delay over two periods:
(a) The first period is between December 2002 and October-November 2008, from the date of incident until the plaintiff first contacted his solicitor with respect to the right shoulder.
(b) The second period is between October-November 2008, when the plaintiff first endeavoured to raise the issue with his solicitors, and the filing of the application in May 2014.
40 This apportionment into two periods is a convenient way to examine the reasons for delay. However, for the purposes of s23A, the delay is to be taken into account as an overall period of approximately eleven-and-a-half years.
41 As to the first period, the plaintiff’s explanation is that although he suffered right shoulder pain since 2003, he believed, on the basis of medical advice, it was only a muscular pain or strain. The plaintiff’s evidence was that he suffered from intermittent discomfort in his right shoulder from 2003 onwards. He reported it from time to time to the first aid officers at his workplace, who advised it was a strain and would resolve. In June 2003, the plaintiff understood that the results of an ultrasound investigation were normal. He attended physiotherapy for a discrete period of about three months, but took no time off work and did not receive certification for modified duties.
42 On 9 October 2008, the plaintiff underwent an ultrasound and x-ray of his shoulder which demonstrated a full-thickness tear of his shoulder. Dr Ebrahim suggested he needed an operation, and asked whether the plaintiff wanted a referral to a surgeon for an opinion. The plaintiff’s evidence was that despite pain in his right shoulder from 2003 onwards, he had been under the impression that it was muscle soreness or strain.[23] After October 2008, when he was informed of the results of the ultrasound and x-ray, was the first time he thought he had a serious problem with his shoulder.
[23]PCB 217
43 Upon the realisation that he had a serious problem with the shoulder, the plaintiff approached his solicitor some time between 9 October and 18 November 2008 (being the date of the ultrasound, to the settlement of the back injury). The evidence was that he was told by the solicitor to focus on his back injury alone, as it was approaching a settlement. I accept that the plaintiff relied upon his discussion with his solicitor to focus on his back injury alone at that time. Counsel for the plaintiff submitted there was no evidence that the solicitor was advised at this time of the actual date of the shoulder injury. The plaintiff had sworn an affidavit in support of his s134AB application relating to the back injury in which he referred to becoming aware of discomfort in his right shoulder in December 2002.[24] I accept that in October-November 2008, the solicitor for the plaintiff was focussing on the resolution of the back claim.
[24]PCB 109
44 The defendant drew attention to the plaintiff’s comments to the Medical Panel. In particular, the plaintiff reported to the Medical Panel that, after ceasing work in relation to his back problem in 2006, he realised his shoulder pain would not simply resolve with rest. I do not accept this comment to the Medical Panel is particularly substantive, given all the circumstances of this case. The fact is the plaintiff returned to work until his employment was terminated by his employer in February 2007. I accept that it was not until October 2008 that an ultrasound and x‑ray with Dr Ebrahim confirmed the extent of the right shoulder injury.
45 The second period of delay was after the plaintiff contacted his solicitor in October-November 2008, and the eventual filing of this application. Regarding the second period, I take the view that the plaintiff has adequate reasons for the delay. As already outlined, the plaintiff contacted his solicitor in October-November 2008 regarding the shoulder, and was told not to “throw it into the mix” at that particular point in time. In December 2008, after settlement of the back injury claim, the plaintiff instructed his solicitor to commence investigating his entitlements with respect to his right shoulder. It is not necessary to repeat the chronology thereafter. I accept that this chronology provides cogent reasons for the delay in this period.
46 I accept there is a considerable delay in this case. I also accept that in all the circumstances, the plaintiff has provided adequate reasons for the overall delay, and I take this into account as part of the synthesis of the matters under s23A(3).
The extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant[25]
[25]Section 23A(3)(b) of the Act
47 Prejudice must be considered as at the date when a trial would be likely to occur.[26]
[26]Ford Motor Company (Aust) Ltd v Kulic [1998] VR 152 at 157
48 Inordinate delay may give rise to an inference of prejudice.[27] Prejudice may exist without the parties or anybody else realising that it exists. The longer the delay, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.[28] Prejudice need not be caused by the delay complained of, but need only have come about by reason of the lapse of time involved in the proceeding in the period of the delay.[29]
[27]Repco Corporation v Scardamaglia (supra) at 13–14; Myer Melbourne Ltd v Hammond [1984] VR 40 at 49; Ford Motor Company (Aust) Ltd v Kulic (supra) at 157
[29]Lord v Australian Safeway Stores Pty Ltd (supra) at 622
49 The delay in this case is of such a duration that it can be said to be inordinate. The Court has said a delay of ten years was sufficiently demonstrable to establish significant prejudice to the defendant,[30] and, in Ford Motor Company (Aust) Ltd v Kulic,[31] the delay was in excess of nine years. In those decisions[32] where inordinate delay was considered, the Courts determined that the delay was, and may be taken as evidence of prejudice, in the absence of any specific prejudice. However, s23A(3) of the Act requires a consideration of whether it is just and reasonable to extend time and involves, by ss(3), the Court having regard to all the circumstances of the case.
[30]Myer Melbourne Ltd v Hammond (supra)
[31](Supra) at 157
[32]Repco Corporation v Scardamaglia (supra) at 13 – 14; Myer Melbourne Limited v Hammond (supra) at 49; Ford Motor Company (Aust) Ltd v Kulic (supra) at 157
50 The plaintiff accepted that prejudice can be inferred from the delay in this case, but submitted there is unlikely to be any significant prejudice arising from the delay because of a number of features of this case. Accordingly, I have regard to all the circumstances.
51 I will now address the actual prejudice the defendant submits it has suffered. Ms Buccheri deposed that the defendant has lost the opportunity to obtain evidence, whether by way of documentary evidence or viva voce evidence of Mr Paoletti, given the time that has elapsed since the plaintiff’s alleged right shoulder injury, and the destruction of relevant documents of the defendant. The defendant submits that it is prejudiced as a result.
No relevant documents exist concerning the Plaintiff’s work or injuries
52 In 2009, enquiries were made with Moran Furniture Pty Ltd (a successor company to the defendant) to ascertain what, if any, documents were still in existence in relation to the plaintiff’s employment. Ms Buccheri was advised that no such documents have been located.
53 I consider it a relevant circumstance that QBE, on behalf of the defendant, undertook the management of the plaintiff’s claims for right shoulder injury in 2003 and 2009. Furthermore, certain relevant information was also recorded in the management of the plaintiff’s claim for back injury made in 2006.
54 The evidence is that within two days of the plaintiff suffering injury to his right shoulder and left groin on 3 December 2002, he submitted a WorkCover Claim Form in respect to the claimed injuries dated 5 December 2002. The plaintiff’s claim was accepted by QBE on behalf of the defendant employer. In December 2002, the defendant/employer paid for the plaintiff’s attendances on Dr Fernando for his injuries, which were the subject of the 5 December 2002 claim. Subsequently, pursuant to the claim, QBE paid for the hernia operation of February 2003, as well as an injection into the plaintiff’s right shoulder on 6 June 2003 and subsequent physiotherapy treatment.
55 I infer from the acceptance of the plaintiff’s claim by QBE on behalf of the defendant, and the payment of medical expenses in respect of the left groin injury (hernia) and right shoulder injury, that in or around late 2002 and early 2003, QBE, on behalf of the defendant, investigated the plaintiff’s claim for compensation to enable it to make a decision to accept that the defendant had liability to pay compensation to the plaintiff in respect of the claimed injuries.
56 In May 2003, QBE engaged Industrial Work Conditioning Clinic to perform a worksite inspection and formulate a return to work plan for the plaintiff.[33]
[33]Letter dated 26 May 2003, Moran to plaintiff, PCB 87
57 Furthermore, on 22 April 2009, QBE, on behalf of the defendant, accepted liability for the plaintiff’s right shoulder and hernia injuries, the date of injury being 3 December 2002.
58 In my view, the information that flowed to QBE on behalf of the defendant, as a result of these claims, ameliorates the prejudice caused to this defendant by the delay in issuing this proceeding.
An important witness died on 9 June 2007
59 The defendant submitted it was prejudiced by the delay due to the fact that an important witness is now deceased. That witness is Adrian Paoletti, the workplace first aid officer who assisted the plaintiff.
60 Mr Paoletti died on 9 June 2007. The plaintiff’s evidence in 2009 refers to Mr Paoletti as follows:
“I gradually became of aware of discomfort in my right shoulder when I was manoeuvring the chair frames and putting the inserts into the back cushions. On 3 December 2002, I was pushing an insert into the back cushion when I suddenly developed pain in my left groin. I continued to work the next day and noticed swelling in the groin. I stopped and went to first aid where I saw Adrian [Paoletti], a co-worker, who had first aid qualifications. He told me that I should see the company doctor and made an appointment for me to attend the Dingley Medical Clinic. I saw Dr Fernando there that day. I told him about my groin and also about my shoulder. Dr Fernando gave me medication and put me on light duties. He also referred me to Mr Peter Labb, a general surgeon. I saw Mr Labb on 9 December, 2002 and he told me that I had a hernia and needed an operation … .”[34]
[34]Plaintiff’s affidavit sworn on 20 August 2009, paragraph 11, PCB 109
61 The defendant submits the plaintiff’s evidence cannot be tested in the usual course by calling upon Mr Paoletti. Further, it is relevant to the plaintiff’s evidence that he attended upon first aid officers in the workplace from time to time.
62 In respect to the death of Mr Paoletti, even had his evidence been of some assistance to the defendant, Mr Paoletti died prior to the expiration of the six-year limitation period. Accordingly, I am not satisfied that the defendant has been significantly prejudiced in respect to Mr Paoletti’s death.
The evidence as to the nature and extent of the work in the workplace
63 The plaintiff’s affidavit[35] sets out his evidence with respect to the defendant’s work processes, staff levels, work flow and the amount of work he was required to undertake each shift.
[35]Affidavit of Edward Shaginian sworn on 5 October 2007
64 The defendant has in its possession witness statements from Richard Jackman and David Zhang, both of whom worked closely with the plaintiff at the defendant’s furniture factory. Although it appears the statements were commissioned in response to the plaintiff’s claim for compensation in respect to his back injury in March 2006, they contain information that is relevant to the present proceeding. These statements provide detailed information regarding the system of work the plaintiff was required to follow when employed by the defendant.
65 I take the view that the defendant has access to material evidence and information regarding the plaintiff’s injuries and the system of work he was required to follow at the defendant’s factory. Accordingly, I do not accept this is a significant prejudice which comes about by reason of the lapse of time involved in the delay.
66 Ms Buccheri deposed that “the causation of the plaintiff’s right shoulder condition is a major issue in the proceeding”.[36] In light of the following facts, I am not persuaded that the causation of the plaintiff’s right shoulder condition is necessarily a major issue given the admissions made by QBE, both in late 2002 and early 2003, then again in 2009, in respect to liability to pay compensation to the plaintiff for the right shoulder injury he suffered in the course of employment on 3 December 2002. QBE’s acceptance of liability to pay compensation for the plaintiff’s right shoulder injury constitutes an admission which ordinarily should be regarded as significant on the issue of causation[37] and, in the context of a damages claim.[38] Further, there is medical evidence that supports a causal link between the plaintiff’s employment and his right shoulder injury.[39]
[36]PCB 224, paragraph [21]
[37]Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171 at paragraph [40]
[38]Cairns v Trowelcoat Pty Ltd [2014] VSC 129
[39]Dr Lebedev, Dr Lefkovits, Mr Polke and Mr Pullen
67 I accept the plaintiff’s submission that there is unlikely to be significant prejudice to the defendant arising from the delay, due to a number of features of this case. I find that the defendant is not prejudiced to the extent that an acceptable fair trial is unlikely.
The extent to which the Plaintiff acted promptly and reasonably
68 I have regard to 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 was attributable, might be capable at that time of giving rise to an action for damages.[40] It is not clear when the plaintiff actually came to ‘know’ that the shoulder injury could give rise to an action for damages against the defendant. Certainly, I find the plaintiff promptly approached his solicitor in October-November 2008, and acted reasonably upon his solicitor’s advice thereafter.
[40]Section 23A(3)(e) of the Act
69 It is unnecessary to repeat the chronology thereafter. I find that the solicitor on behalf of the defendant, with reasonable promptitude, set about going through the steps required under the ACA before a claim for damages can be issued.
70 There was some discussion as to why the plaintiff, or the solicitor on his behalf, did not seek a waiver prior to the expiration of the limitation period. The plaintiff approached his solicitor in October-November 2008, and was advised to focus on his back injury. The limitation period for the shoulder injury expired shortly afterward, in December 2008. There was no evidence that the plaintiff, as a lay person, was aware of the relevant dates for the purposes of the limitation period. I am not prepared to infer that the plaintiff was apprised of his common law rights at that time. The delay is explicable when considered in the context of the plaintiff’s claim for back injury, and the late timing, in 2008, of the plaintiff’s realisation that he had a serious shoulder problem. Subsequently, on 18 December 2008, the solicitor was specifically instructed to investigate the plaintiff’s entitlements with respect to the left shoulder injury. By that time, the proceeding was statute barred and the opportunity for seeking the waiver had expired.
71 Further, the expiry of the limitation period was not raised in a timely manner by either the plaintiff or the defendant. It seems both parties proceeded to act for some time on the basis that the limitation period was not in issue. For instance, once the plaintiff served the s134AB application, the defendant responded with a draft Defence. The draft Defence did not plead the expiry of the limitation period. That explains why, when the application came on for hearing before his Honour Judge Brookes, the plaintiff did not, at that time, make an application for an extension of the limitation period.
The steps taken by the Plaintiff to obtain medical, legal or expert advice, and the nature of such advice[41]
[41]Section 23A(3)(f)
72 I find that the plaintiff took reasonable and appropriate steps to obtain medical and legal advice. I have outlined the reasons for delay put forward by the plaintiff.
73 Furthermore, the plaintiff’s evidence is that in 2003, despite the normal ultrasound, Dr Lebedev sought funding from QBE for the plaintiff to undergo an MRI scan.[42] The plaintiff’s understanding is that QBE refused to pay for the MRI scan. The parties did not address me on this issue. I accept that Dr Lebedev, on behalf of the plaintiff, sought funding for an MRI investigation and advice, but which QBE did not believe was warranted at that time. I view the request made to QBE for MRI funding as an appropriate step taken by, or on behalf of, the plaintiff in his efforts to obtain medical advice.
[42]Affidavit of Edward Shaginian sworn on 26 February 2014 at paragraph [8]
Remaining matters under s23A(3)
74 It was not suggested that, pursuant to s23A(3)(c), the defendant failed or refused to take steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action. I have already dealt with the evidence that QBE, on behalf of the defendant, refused the costs of an MRI scan in 2003.
75 It was accepted that there was no disability of the plaintiff for the purposes of s23A(3)(d).
All the circumstances
76 Sections 23A(2) and 23A(3) of the Act require a consideration of whether it is just and reasonable to extend the limitation period, and also that the Court shall have regard to all the circumstances of the case. Accordingly, the section is not limited to the considerations specified in s23A(3). It is also appropriate to have regard to the applicant’s ability to recover damages from a solicitor, where the solicitor’s alleged negligence or default had made the application necessary. The weight to be given to this depends on all the circumstances of the case.[43] In this case, I accept that in October-November 2008, when the plaintiff approached his solicitor, there was no evidence that the solicitor was advised of the actual date of the shoulder injury at that time. Certainly, there is no admission of negligence by the solicitor in this case. I therefore place lesser weight on this as a circumstance in this application.
[43]Tsiadis v Patterson (supra)
77 Synthesising all of the matters required to be taken into account by s23A of the Act, I formed view that it is just and reasonable to extend the period of limitation. There has been a considerable delay in this case. I accept the plaintiff offered adequate reasons for the delay. I have considered the features of this case, and I find there is no prejudice to such a significant extent that an acceptable fair trial is unlikely. I have examined the evidence as to the steps and actions taken by the parties, particularly the plaintiff and his solicitor. I take into account the specific circumstances of this case.
78 In all the circumstances, it is just and reasonable to extend the period of limitation applicable to the cause of action upon which the plaintiff relies. I will hear the parties as to the date which I should extend the period.
79 I will hear the parties on the question of costs and the form of orders sought.
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