Shoobert v Baptist Community Services NSW & Act Limited
[2011] ACTSC 152
•September 9, 2011
DONNA SHOOBERT v BAPTIST COMMUNITY SERVICES NSW & ACT LIMITED
[2011] ACTSC 152 (9 September 2011)
LIMITATION OF ACTIONS – action for damages for personal injury – work injury –explanation for delay – length of delay – whether actual prejudice to defendant – whether fair trial possible – balance of interests favours applicant – extension granted
Limitation Act 1985, ss 11, 36.
Court Procedures Rules 2006, rr 75, 76, 662, 664, 2809.
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541.
Sessions v Phengsiaroun [2008] ACTSC 132.
Laws v Web Scaffolding Pty Ltd [2010] ACTCA 3.
REASONS FOR DECISION
No. SC 865 of 2008
Judge: Master Harper
Supreme Court of the ACT
Date: 9 September 2011
IN THE SUPREME COURT OF THE )
) No. SC 08/865
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:DONNA SHOOBERT
Plaintiff
AND:BAPTIST COMMUNITY SERVICES NSW & ACT LIMITED
ACN 000 049 525
Defendant
ORDER
Judge: Master Harper
Date: 9 September 2011
Place: Canberra
THE COURT ORDERS THAT:
the period within which this action may be brought be extended so as to end on 10 October 2008.
the defendant’s costs of the application be paid by the plaintiff.
those costs not be recoverable until final orders are made in the action.
On 19 August 2011 I heard together an application by the defendant for summary judgement and an application by the plaintiff for extension of the limitation period applicable to her claim.
The plaintiff was born in October 1969. In mid-1999 she commenced employment with the defendant at Morling Lodge, a nursing home at Red Hill in the suburbs of Canberra. She started as a casual cleaner but after a short time she became a full-time assistant in nursing. During her employment she undertook a course through the ACT Department of Health and Community Services, gaining a certificate in assistant nursing. Her duties included bathing patients. These included people confined to bed and effectively unable to move without help. For such patients there were bed baths on wheels, with drop-down sides. It was apparently not unknown for a bed bath to be unserviceable. In such circumstances, the practice was to put on the bed bath a notice that it was out of order.
The plaintiff proposes that on 18 December 2001 she and a fellow employee, Veronica Whiting, had the task of bathing an elderly lady with limited mobility who weighed more than ninety kilograms. She had been shown a system of moving a patient from the bed into the bed bath and back. The system was that an employee would stand on each side of the bed. An incontinence sheet on a slide-board was used to move the patient from the bed onto the bed bath, which would be wheeled to the shower room where the resident would be washed.
While the plaintiff and Ms Whiting were engaged in this process, and as the patient was being transferred from the bed to the bed bath, the metal side of the bed bath closest to the plaintiff collapsed. The patient fell and the plaintiff fell with and under her, trying to break her fall so that the resident would not be injured. The plaintiff landed on the floor heavily on her buttocks with the weight of the resident on her, and hit her head hard on the floor. Ms Whiting called for assistance. Other employees moved the patient off the plaintiff. The plaintiff deposes that she immediately felt pain in her back and a headache. She was put into a wheelchair.
There was no notice on the broken bed bath. She says that if there had been, they would not have used it.
On the day of the incident the plaintiff completed part of a notice of injury form. The balance of the form was completed on the same day by Ms Sue Scott, care manager, who I take to have been the plaintiff’s superior in the workplace. The form recorded that the plaintiff had been treated by Dr Poland, a Queanbeyan general practitioner, and that the expected duration of the plaintiff’s incapacity was five days. The main injury was described as a lower back injury (sacral bruising). An injury to the left arm was also noted.
Ms Scott recorded that the cause of the accident had been investigated. It had been due to weakened support springs on the side of the bed bath, which were to be repaired by re-welding. On the limited information presently available about the accident, I would infer that the plaintiff would have reasonable prospects of establishing that the incident happened by reason of the defendant’s negligence. This is a provisional view and may turn out to be unjustified should the action go to trial, in the light of all the evidence which may then be available.
The plaintiff saw her doctor on the day of the accident. He referred her for an x-ray of the low back, which apparently revealed no abnormalities. She saw her doctor a few times over the next two weeks. On 27 December 2001 she and Ms Scott completed and signed a workers’ compensation claim form with the defendant’s insurer, Catholic Church Insurances Limited. She was off work until about mid-January 2002 when she returned on light duties. After a few weeks she resumed her pre-accident duties. She says that she continued to have headaches on and off for four to five weeks after the accident.
The plaintiff had had health problems in the years before the accident, including some mental health issues associated with the breakdown of her marriage, as a result of which she had been a patient at Queanbeyan Mental Health Service in 2000, and again in 2002.
The plaintiff deposes that in the months after the accident she did not notice any neck problems. These developed between 2002 and 2008, involving the left shoulder and to a lesser extent the neck. She recalled problems hanging up the washing with her arms over her head. The symptoms would be relieved by massage.
In about 2003 the plaintiff changed jobs, applying for a position with George Forbes House, a nursing home at Queanbeyan in NSW also operated by the defendant. It appears that the plaintiff changed her place of employment at this time but that the employer remained the same. There were fewer high-dependency patients at George Forbes House and the work was a little lighter.
During 2004 the plaintiff was diagnosed with rheumatoid arthritis, following testing of a lump which was removed from a finger. She was advised to take anti-inflammatory medication to relieve pain.
She says that she continued to have pain in the lower back between 2002 and 2008, for example if she bent over suddenly or lifted anything heavy. She adapted to this by avoiding such activities.
In April 2003 she was driving a car at night and struck a kangaroo. She says that this caused mid-back pain for a couple of days but did not cause any increase in low back pain.
During 2006 the plaintiff bent over to pick something from the floor at George Forbes House and experienced pain and locking in the back. She was taken to hospital and had fourteen days off work. She made a claim for workers’ compensation.
She said that in April 2002 she was moving a bed at work when she felt pain in the left shoulder area. On examination by her general practitioner she showed tenderness in the cervical spine, the pain increasing on movement. She was referred for physiotherapy and was prescribed anti- inflammatory medication.
The limitation period expired on 19 December 2007. The plaintiff had not by then consulted a solicitor or taken any steps to make a claim for damages under the general law. I am satisfied that she had no understanding of the concept of a claim for damages, or the difference between such a claim and a claim for workers compensation.
In her affidavit, sworn in July 2011, the plaintiff says that on Sunday 8 February 2008 (in fact 8 February 2008 was a Friday) she was lifting and placing bags of dirty linen on a trolley. It was laden to the extent that she needed to lift bags to about shoulder or head height to put them on top of the others. In the course of this work, she felt a sudden burning sensation and pain in the neck and the left shoulder and upper back. She had two days off work resting at home. She thought that her symptoms might have been related to her rheumatoid arthritis. She went home and had a shower.
The neck pain and shoulder pain were worse the next day. When her partner got home from work she says that she asked him to rub some deep heat ointment into her shoulder and the middle of her back but not her neck. She was cross-examined about this and I found her evidence about the rubbing of the ointment or massaging not extending to the neck to be a little unsatisfactory. The incident had happened more than three years before the plaintiff gave instructions for the preparation for her affidavit, and at a time when she was unaware of the issues which subsequently arose about when she had injured her neck. It hardly seems the sort of detail she would have retained in her memory and I wondered when she gave her evidence whether there was some element of reconstruction involved now that she has some understanding of the issues.
She saw a general practitioner a couple of days later complaining of neck pain and of pins and needles in the fingers of the left hand. She was referred for a CT scan of the cervical spine. The CT report dated 18 February 2008 confirms that the symptoms calling for the referral were “pain left local cervical spine with paraesthesia left hand”. Some irregularities were observed at C4-5, C5-6 and C6-7. These included some osteophyte formation, and a small disc bulge at C6-7. A general practitioner told her that the symptoms were due to mechanical factors and not to rheumatoid arthritis. The plaintiff was given Endone for pain relief. The plaintiff was referred for an MRI scan of the cervical spine, conducted on 14 March 2008. This confirmed a disc protrusion at C6-7 on the left side, with probable impingement of the left C7 nerve root, and a bulge at C5-6 with a possible impingement or irritation of the left C6 nerve root.
On 6 March 2008, QBE Workers Compensation (NSW) Limited arranged for Associate Professor R J Oakeshott, a very experienced surgeon (and coincidentally the father of the present federal member for Port Macquarie) to examine the plaintiff. The examination took place on 13 March. A report in evidence refers to a letter of instruction and attachments which I have not seen. Associate Professor Oakeshott was asked to examine the plaintiff and report in relation to a claimed neck injury on 12 February 2008. The plaintiff attended accompanied by a friend who took detailed notes and on occasion corrected the plaintiff as to some aspects of the history and treatment. The friend “maintained a fairly dominant position during this interview”.
The plaintiff told Associate Professor Oakeshott that on the weekend of 9-10 February she noted some discomfort on the lower left side of the neck. She related this to work which had included lifting bags of linen, making beds and showering patients, and attributed the symptoms to her rheumatoid arthritis. She said that she had been taking medication occasionally for pain relief unrelated to any work condition. She had been off work on the Monday and Tuesday, during which time her neck pain slowly became worse “despite massage treatment from her partner”. There were symptoms in the left arm and numbness in the fingers. She was referred by her general practitioner for physiotherapy and prescribed anti-inflammatory and painkilling medication. Her doctor had referred her to Dr Justin Pik, a Canberra neurosurgeon, and she had an appointment to see him in about two weeks’ time.
By the time she saw Associate Professor Oakeshott, the plaintiff had been off work for a month, but had commenced a graduated return-to-work programme the previous day, working two hours every second day doing paperwork. She gave a history of a work-related low back injury ‘some five years ago’ which had caused her to take three to seven days off, and to have conservative treatment including physiotherapy. Dr Oakeshott said that the plaintiff claimed a full recovery from that injury. Subsequently she had been diagnosed with rheumatoid arthritis. She denied any problem with her neck prior to 9 February 2008.
The plaintiff reported to him that she was improving with physiotherapy but had good and bad days with her neck symptoms, in the form of occasional discomfort at the front of the left shoulder and pain on the left side of the base of the neck. The symptoms became worse when she bent her neck forward, and prevented her from lying on her left side. Lifting her left arm above shoulder height increased her neck symptoms and made her dizzy.
Associate Professor Oakeshott had the benefit of the CT scan report of 18 February 2008. His view was that the reported changes were of long standing and were constitutional in origin. He could not correlate them with any of her symptoms. They did not represent an injury in February 2008. They were changes which were capable of existing without producing symptoms.
He thought that the plaintiff exhibited some abnormal pain behaviour, and, that she embellished her symptoms to an extent. He concluded that she did not have a significant work-related injury and that the symptoms of which she complained were substantially related to factors other than any recent physical injury at work. She was in his opinion fit for full-time work though she should avoid heavy lifting and pushing or pulling heavy objects. These limitations were in his opinion unrelated to any work injury a month earlier.
The plaintiff saw Dr Pik on 28 March 2008. He took a history of seven weeks of severe left–sided neck and arm pain radiating into the index finger, accompanied by pins and needles. Physiotherapy and narcotic painkillers had led to only minimal improvement in symptoms. Her neck was very stiff and immobile. Dr Pik had the benefit of the MRI scan report showing disc herniation at two levels. He thought that the plaintiff had typical features of left C7 and possibly C6 radiculopathy. If her symptoms became sufficiently severe and disabling surgical decompression and fusion at C5-6 and C6-7 would probably bring pain relief. The plaintiff was to think about whether she wished to proceed with surgery, and contact Dr Pik if she elected to do so.
Shortly after this, Associate Professor Oakeshott was provided with a copy of the MRI scan report and a copy of Dr Pik’s report. He noted that Dr Pik had “declined to issue an opinion in regard to the cause of Ms Shoobert’s symptoms”.
Associate Professor Oakeshott agreed that there was evidence of a discogenic cause for the plaintiff’s symptoms, but said that here was no medical support for a claim that the nature and conditions of the plaintiff’s work had caused the changes observed in her cervical spine. It was his opinion that her employment had not been a substantial contributing factor to her neck symptoms. They were related to constitutional degenerative changes in the cervical spine and not to a work-related cervical spine injury.
Associate Professor Oakeshott thought that Dr Pik’s recommendation for major cervical spine surgery was reasonable if her symptoms were not improving with conservative treatment. He noted that she had told him on 13 March that they were improving. He suggested a further period of three months of conservative treatment before making a decision to embark on major surgery.
The plaintiff says that after Dr Pik recommended surgery, she decided that she should proceed with it. She initially assumed that the workers’ compensation insurer would authorise and pay for the surgery. She was subsequently told that a decision had been made not to do so, presumably based on Associate Professor Oakeshott’s opinion. The plaintiff was very upset about the rejection of her request for payment for surgery. She was unable to work and very limited in what she could do. The pain, she said, was severe.
During June 2008 the plaintiff was admitted to Queanbeyan Hospital for management of the pain in her lower back, left shoulder and neck. She says that her left arm was becoming weaker. A general practitioner referred her to Dr Ralph Mobbs, a Sydney neurosurgeon. Dr Mobbs saw the plaintiff in August 2008. He took the view that she had a moderate to severe left C7 radiculopathy. Dr Mobbs was aware that Dr Pik had recommended surgery but that this was opposed by ‘an insurance doctor’. Dr Mobbs thought that the plaintiff should undergo decompression surgery of the left C7 nerve via a C6-7 discectomy. Because the workers’ compensation insurer would not pay for surgery, Dr Mobbs arranged for the plaintiff to go on to a public hospital waiting list. He was able to get her in for the operation in November 2008, when he carried out anterior cervical decompression fusion at C6-7. His observations in the course of the surgery confirmed the MRI scan report. A disc-osteophyte complex was impinging at least moderately on the left C7 nerve. This was consistent with there having been a traumatic incident, potentially with an annular tear and disc sequestration which had calcified over time. The degree of calcification meant that it was unlikely to have been caused by a recent event, and more likely to have been caused six to twelve months before the MRI scan, although this was ‘extremely variable’. What he found was unlikely to have been due to age alone. It was likely that the event he had been told about in 2001 was a contributing factor to a C6-7 post-traumatic degenerative disc-osteophyte complex, particularly in light of the fact that she had seen a general practitioner in April 2002 with features consistent with pain emanating from a source in the cervical spine.
The plaintiff’s evidence was that after her surgery the pain in her neck improved significantly, and the weakness and heaviness in her left arm improved. By the date she swore her affidavit, 15 July 2011, she had still been unable to return to work. Her neck movements were very restricted, with some pain, and she continued to suffer from pain in the lower back.
It was not until March 2008 that she first did something about getting legal advice. The trigger was the refusal of the workers’ compensation insurance company to meet the cost of her surgery. Her sister knew a solicitor in Sydney called Jane Morgan, and arranged for Ms Morgan to get in touch with her by telephone. Ms Morgan advised her that she should pursue a claim for workers’ compensation arising out of the neck injury at work in February 2008.
In June 2008 Ms Morgan telephoned the plaintiff to tell her that she had made an appointment with a barrister in Canberra. The plaintiff met Ms Morgan for the first time in person at the chambers of Mr Bartley of senior counsel, who appeared for the plaintiff on the hearing of the present applications.
After a conference with Mr Bartley, Ms Morgan told the plaintiff that she should forget about making a claim for workers’ compensation and should concentrate on a claim for damages at common law. The plaintiff was concerned at the concept of suing the defendant, her then employer, because she enjoyed her work and did not want to put it in jeopardy. She left it up to Ms Morgan to do whatever she thought best.
The plaintiff never attended Ms Morgan’s office in Sydney. She rang Ms Morgan every two months or so to ask how her case was going, sometimes leaving a message. She had only a mobile telephone number for Ms Morgan. Sometimes Ms Morgan would ring her back and sometimes she would not. When they spoke, Ms Morgan reassured the plaintiff that her claim was progressing satisfactorily.
The present action was commenced by originating claim filed on 10 October 2008 by Porters Lawyers as agents for Ms Morgan’s firm, Morgan Lawyers of Wentworth Falls in NSW. It does not appear that Mr Parkinson, the principal at Porters Lawyers with conduct of the matter, had any direct contact with the plaintiff. The solicitors for the defendant filed a notice of intention to respond in November 2008 and a defence in February 2009. In the first paragraph of the defence, it was pleaded that the claim was statute-barred by the Limitation Act 1985. The defence also pleaded that the plaintiff’s cessation of work with the defendant had been caused not by the injury of December 2001 or any aggravation of that injury, but rather because of cervical pain which started after her partner massaged her neck in February 2008.
In December 2008 the solicitors for the defendant issued notices for non-party production which were served on Dr Pik, Dr Mobbs, Canberra Hospital and the plaintiff’s general practice. The procedure prescribed by the Court Procedures Rules 2006 is that documents are to be produced pursuant to such a notice in the first instance to the other side in case there are documents the subject of privilege which the issuing party might not be entitled to see. It appears that the documents were produced to Porters who sent them to Morgan Lawyers to be checked for privileged documents. Rule 662 provides that the receiving party must within fourteen days after receiving the documents deliver them to the solicitors who issued the notice. Rule 664 permits the receiving party to retain any documents in respect of which privilege is claimed, or there is some other objection to production, instead notifying the party issuing the notice of the claim or objection and identifying the documents concerned.
The plaintiff’s solicitors failed to comply with the rules about production. It is plain that Ms Morgan’s firm held on to the documents and did not send them to the defendant’s solicitors despite requests to do so by letter. In June 2009 the defendant’s solicitors applied to the court for an order that the plaintiff deliver the documents. The order was made on 29 June 2009, apparently by consent. Still nothing happened. In August 2009 the defendant’s solicitors made a further application, seeking an order that the plaintiff comply with the earlier order failing which the action be struck out for want of prosecution. That application came before the Registrar on 24 August 2009. There was no appearance for the plaintiff, and the Registrar made a further order that the documents be produced within fourteen days, ordering the plaintiff to pay the costs of the application. I assume that following the making of those orders Ms Morgan’s firm sent the documents to the defendant’s solicitors, because there was no further activity on the court file until April 2011.
Although neither party adverted to this on the hearing of the present applications, it should be pointed out as part of the chronology that, taking the Registrar’s orders of 24 August 2009 to have been a step in the proceeding, by virtue of rule 75 the proceeding was taken to be dismissed a year later, that is on 24 August 2010. Fortunately for the plaintiff, rule 76 now provides that a proceeding so dismissed under rule 75 is reinstated if, within another year, a party to a proceeding files a document. On 7 April 2011, the solicitors for the defendant filed their application for summary judgement, thus reinstating the proceeding.
I think it very unlikely that the plaintiff had any knowledge of the events surrounding the production of documents pursuant to the notices of non-party production, including the applications before the court and the orders made, including the orders for costs made against her.
The plaintiff’s evidence there is that during November 2009 Ms Morgan telephoned her and asked her to go to Sydney for a conference with a barrister, Mr Frank Tuscano. She went to the conference. She had not previously met Mr Tuscano and had the impression that Ms Morgan had not previously met him either. He told the plaintiff that her claim was out of time and that an application would need to be made for an extension. He said that this would have to be done urgently. This was the first the plaintiff knew of any issue about a time limit for bringing her claim. Thereafter, she said that each time she spoke to Ms Morgan she asked whether the application had been made. Ms Morgan told her that this would be attended to soon and was under control. At one stage Ms Morgan asked her for money to pay for some disbursements. The plaintiff borrowed money from her mother and sent it to Ms Morgan.
The plaintiff says that she first became aware that an application had been made by the defendant to strike out her claim when her daughter saw the name of the case in the law list in the newspaper and told her about it. The plaintiff telephoned Ms Morgan, who told her that it was the application to extend time and that there was no need for the plaintiff to worry about it.
Both the Canberra agents for the plaintiff and the solicitors for the defendant seem to have had considerable difficulty in making and maintaining contact with Ms Morgan. At some point during 2010 Morgan Lawyers seem to have moved from Wentworth Falls to Haberfield, a suburb of Sydney. In January 2011 Ms Morgan attempted to file a notice of change of solicitor, giving her new address as with a firm in the city of Sydney named Casula and Kelso. The notice was rejected with a requisition for failure to give an address for service within the Australian Capital Territory. No further attempt seems to have been made to correct this.
The solicitors for the defendant later tried to serve an application on Casula and Kelso but were told that Ms Morgan’s association with their firm had terminated in February 2011 after which it is possible that, though unclear whether, Ms Morgan continued to practice at Morgans Lawyers at Haberfield.
In May 2011 her Canberra agents, Porters Lawyers, filed a notice withdrawing as agent pursuant to rule 2809. The plaintiff remained notionally represented by Ms Morgan until on 30 June 2011 a notice of change of solicitor was filed by Ms Kyprianou of Maurice Blackburn, the present solicitors for the plaintiff.
The plaintiff deposes that to her knowledge Ms Whiting, her colleague of the time of her injury in 2001, was still working at Morling Lodge at Red Hill but was due to retire in the near future. Ms Whiting told the plaintiff that she did not want to be involved because someone had told her that her job at Morling Lodge might be at risk if she spoke to the plaintiff’s solicitor. In June 2011 Ms Morgan eventually told the plaintiff that she should get other legal representation, and the plaintiff did so.
It is common ground that the limitation period for a cause of action first accruing on 19 December 2001 was six years, and that the court retains a discretion to extend that period in certain circumstances: Limitation Act 1985, s 11, s 36. The period has been reduced for personal injury actions to three years in respect of actions occurring after 1 July 2002, but these changes do not have retrospective effect.
S 36 permits the court to order that the limitation period be extended if it decides that it is just and reasonable to do so. A non-exclusive list of factors that the court must take into account includes:
· the reasons for the delay;
· the extent of likely prejudice to the defendant
· the extent to which the plaintiff acted promptly and reasonably once she knew that the act or omission of the defendant to which her injury was attributable might be capable at that time of giving rise to an action for damages; and
· any step taken by the plaintiff to obtain medical, legal or any other expert advice and the nature of the advice she may have received.
The court has power to extend time after the limitation period has expired, and after an action has been commenced.
The defendant does not suggest that there is any basis for summary judgment other than the limitation defence. It is common ground that if the plaintiff’s application for extension is refused, the action is doomed to failure and the proper course will be to grant the defendant summary judgment.
There are a number of factors to be balanced. In the defendant’s favour, the plaintiff did not even seek legal advice about her position until after the limitation period had expired. Action was commenced almost ten months out of time.
Also in the defendant’s favour, the principal solicitor for the plaintiff behaved with an inexcusable lack of diligence and competence following delivery of the defence in February 2009 until she accepted the inevitable and advised the plaintiff to seek other legal representation in June 2011. After acting reasonably promptly to commence proceedings when she was first instructed, the solicitor seems to have done almost nothing since, and, if the plaintiff is to be accepted, to have actively misinformed the plaintiff as to where she stood and what was happening. I say this recognising that I have not heard from the solicitor, who has not had an opportunity to put her side of the story. My provisional view, based on the evidence before me, is that the solicitor has placed the plaintiff in a position where she was at risk of losing such rights as she retained by reason of breaches of the Court Procedures Rules and of orders of the court of which the plaintiff personally was entirely unaware.
In the plaintiff’s favour, the defendant has been aware of the injury since the day it happened, and the insurer since very soon afterwards.
The leading authority in relation to applications to extend a limitation period in a personal injury action is Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. For this court, Higgins CJ summarised the principles in Sessions v Phengsiaroun [2008] ACTSC 132. The principles were considered more recently by the Court of Appeal (Higgins CJ, Refshauge and North JJ) in Laws v Web Scaffolding Pty Ltd [2010] ACTCA 3.
Toohey and Gummow JJ said in Brisbane South at 547:
The discretion conferred by the sub-section is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well-established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant.
In the same case, McHugh J said at 553 that a limitation period
. . . represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background,, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it.
His Honour went on to say at 554:
. . . when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.
The delay in commencing proceedings in the present case was a little short of ten months. The delay in making an application for the extension was very much greater. The application for extension of time was not made until July 2011, approaching ten years after the injury and some three and a half years after expiry of the limitation period. The defence pleading the limitation issue was filed in February 2009, so that it was almost two and a half years after that before the extension application was made.
The circumstances are nevertheless very different to those in Brisbane South, where the cause of action had arisen some twenty years earlier, and the plaintiff wished to bring an action for damages against a hospital authority for failure by a surgeon to warn her of the possible dangers of a surgical procedure. Her case relied on evidence of a conversation she had had with the surgeon, who was no longer employed by the authority and could not be readily located.
Having said that, it must be acknowledged that memories will fade over a period of time such as has passed in the present case. I also take account of the fact that it is the whole of the delay since the cause of action arose, not merely the period since just prior to the expiry of the limitation period, which must be considered.
The respondent has not adduced any evidence of actual prejudice based upon the passage of time, although the potential for prejudice always exists after a delay, particularly in relation to the fading of memory.
Counsel for the defendant submits that the court should be satisfied on the affidavit evidence and the medical reports that the plaintiff had recovered from the effects of the 2001 injury within a fairly short time, and that she suffered a fresh and quite separate injury in February 2008, caused by the massaging of her neck by her partner.
Whilst that is the opinion of Associate Professor Oakeshott, it is not the opinion of Dr Mobbs. Causation of the plaintiff’s disability subsequent to February 2008 will be an issue for trial (if the action is permitted to proceed) upon which she will bear the onus, but it is not certain on the evidence before me that it is an issue on which the plaintiff must fail. It is very much an issue for determination at trial rather than in the course of an interlocutory application.
The question I must ask is whether, or not, in spite of the delay, a fair trial is possible.
The defence denies negligence and puts in issue the assertions of fact in the statement of claim, but apart from the limitation plea, the only positive assertion contained in the defence is that the plaintiff gave up work not because of the 2001 injury but because of a separate injury in February 2008. This is a case where all of the contemporaneous medical records will be available to both parties in relation to the period 2001-2008, and indeed subsequent to that. It does not seem to me that there is likely to be much issue about liability for the 2001 injury. If the action goes to trial, it seems to me that the major issue for determination will be whether the plaintiff suffered a new unrelated injury to her cervical spine in February 2008. If that issue is decided in the defendant’s favour, the plaintiff’s damages are likely to be relatively modest. But it seems to me that the defendant, in relation to that issue, is no worse off now than it would have been in February 2008. Admittedly the February 2008 incident happened outside the limitation period, but in all of the circumstances if the plaintiff had been competently represented and had made a prompt application for extension during the latter half of 2008, I am satisfied that the balance of the interests of the parties would have weighed strongly in favour of granting an extension.
A question undoubtedly arises as to whether the plaintiff should be regarded as having lost any entitlement to an extension because of her further long delay in making the present application for extension. I am not criticising the plaintiff personally in this regard: I am satisfied, as I have said, that the plaintiff knew nothing about time limits and relied entirely on her lawyers to look after her interests. The blame appears to lie largely and perhaps entirely with Ms Morgan.
On reflection, it seems to me that the defendant is really no worse off than if an application had been made late in 2008, and that a fair trial remains possible. It would not be appropriate to decide this application against the plaintiff by way of blame for the delay since 2008 caused by her solicitor in Sydney.
I propose to grant the extension sought.
As between the parties, the plaintiff comes to the court seeking an indulgence and must bear the costs of the application. This would have been inevitable even if she had made an application soon after she instructed a solicitor in mid-2008. Having regard to her position as an unemployed individual, and that of the defendant, a company with the benefit of insurance, I propose to order that those costs not be recoverable until final orders are made in the action.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 9 September 2011
Counsel for the plaintiff: Mr A J Bartley SC & Mr I D Bradfield
Solicitors for the plaintiff: Maurice Blackburn
Counsel for the defendant: Mr S H Pilkinton
Solicitors for the defendant: Dibbs Barker
Date of hearing: 19 August 2011
Date of judgment: 9 September 2011
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