Silver v Launceston Presbyterian Homes for the Aged Inc

[2000] TASSC 1

[2000] TASSC 1

CITATION:           Silver v Launceston Presbyterian Homes for the Aged Inc [2000] TASSC 1

PARTIES:  SILVER, Lesley Dawn
  v
  LAUNCESTON PRESBYTERIAN HOMES FOR THE AGED INC

TITLE OF COURT:             SUPREME COURT OF TASMANIA
JURISDICTION:                   ORIGINAL
FILE NO/S:  BDR M16/1999
DELIVERED ON:                 20 January 2000
DELIVERED AT:                  Hobart
HEARING DATES:              25 November, 22 December 1999
JUDGMENT OF:                  The Master

CATCHWORDS:

Limitation of Actions - Extension of time - Arguable case.
Workers Rehabilitation and Compensation Act 1988 (Tas), s135.
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497, referred to.
Aust Dig Limitation of Actions [55]

REPRESENTATION:

Counsel:
             Plaintiff:  C J Bartlett
             Defendant:  C P Webster
Solicitors:
             Plaintiff:  Bartletts
             Defendant:  Wallace Wilkinson & Webster

Judgment Number:  [2000] TASSC 1
Number of Paragraphs:  15

Serial No 1/2000
File No BDR M16/1999

LESLEY DAWN SILVER v
LAUNCESTON PRESBYTERIAN HOMES FOR THE AGED INC

REASONS FOR JUDGMENT  THE MASTER

20 January 2000

The proceedings

1. By an application filed 13 August 1999, the plaintiff applies for an extension of time pursuant to the Workers Rehabilitation and Compensation Act 1988, s135, for the commencement of proceedings for damages for personal injuries suffered by the plaintiff on or about 5 December 1995. A writ issued on the same date that the application was filed, namely 13 August 1999.

The facts

1. An affidavit sworn by the plaintiff on 16 August 1999 was read into evidence in support of the application.  The plaintiff deposed that on 5 December 1995, she was a cleaning supervisor at the Launceston Presbyterian Homes for the Aged.  She was pushing a patient in a shower chair when the wheels of the chair snagged in a damaged section of carpet and the chair tipped forward.  She wrenched her back attempting to prevent the chair from falling over.  Annexed to her affidavit was a copy of a worker's report, which she signed on 8 December 1995, describing the incident and the injury, and a copy report provided by consultant orthopaedic surgeon, Mr V Hadlow, dated 20 April 1999.

1. Mr Hadlow said in the report:

"Mechanism of Injury/Sequence of Events:

She told me she attempted to save a patient from falling out of a wheelchair in 1995 and badly wrenched her back experiencing pain with referral into her right leg.  She was placed off work for three weeks and underwent physiotherapy.  She has suffered from repetitive symptoms ever since, particularly in 1997 when she experienced pain down her left leg.  In September of 1998 she noticed a gradual development of pain in the right leg, culminating with severe pain in January 1998 causing her to cease employment.

…

Current Status:

She is experiencing pain in her back, right buttock and right leg and also pins and needles in the outer toes of her right foot in particular.  Her disability is constant, varies in intensity and disturbs her sleep, particularly when rolling over.  She is stiff in the morning and all activities aggravate her symptoms such as sitting, standing, walking, lying, bending and lifting.  She stated that coughing and sneezing are agony and she experiences pain when she attempts to defecate.  She is at present not undertaking any employment.

…

Investigations:

CT Scan (12 January 1999): Revealed an old and well established lumbosacral disc prolapse which has progressed to marked lumbosacral disc space narrowing and spondylolithic reaction.  The remainder of her lumbar spine appeared healthy.

Summary and Assessment:

Her diagnosis was of old lumbosacral disc prolapse (1995) with progressive deterioration due to repeated strains and the development of established lumbosacral spondylosis and right S1 nerve root irritation.  This is consistent with the stated cause and the ongoing history of an unrelieved disc prolapse which resulted in right sciatica, then later left sciatica and now right sciatica.  Treatment has at all times being [sic] non-invasive and supportive.  Currently her back symptoms are unstable and she is not fit for her work.

Her prognosis, both in the short and long-term is poor.  There appear to be no psychogenic factors."

1. The plaintiff was cross-examined on her affidavit.  She said that she hurt her back again on 5 February 1996 whilst lifting a resident up from her bed.  She said, however, that she attributed her present back complaints to the December 1995 incident, rather than the February 1996 incident, because the former resulted in her being away from work and in bed for 10 days.  Upon the production of a copy medical certificate to the plaintiff, she agreed that following the 5 December 1995 incident, she was certified fit to return to work on 8 December 1995 and that she returned to work on that date.  The defendant tendered some copy medical certificates showing that on 5 February 1996, the plaintiff suffered an injury caused by "positioning patient" and was unfit for work until 17 February 1996.  Hence it was the February 1996 injury and not the December 1995 injury which resulted in the plaintiff having about 10 days off work.

1. Copy medical certificates were tendered by the defendant showing that the plaintiff was certified unfit for work again because of a back injury from 6 March 1996 to 19 April 1996 and thereafter was only fit to return to work on limited duties.  All of the certificates provided in February, March and April 1996 attributed the plaintiff's back condition to "positioning patient" or "positioning of patient" and not to the shower chair incident. 

1. In addition, the defendant's counsel noted that Mr Hadlow in his report of 20 April 1999 had specified the date of injury as "5 February 1995" and said in relation to the initial injury:

"She was placed off work for three weeks and underwent physiotherapy."

It was suggested to the plaintiff that she had become confused as to the relevant sequence of events and that the substantial back injury first occurred when she was lifting a patient from a bed on 5 February 1996 which incident (rather than the December 1995 incident), had resulted initially in about 10 days off work and in subsequent medical certificates given by the plaintiff to her employer was the injury to which on-going back problems were attributed..  The plaintiff did not accede to counsel's suggestion and maintained her insistence that severe back pain and referred pain into her right leg first occurred when pushing the shower chair on 5 December 1995.

The defendant's argument

1. Counsel for the defendant conceded that the plaintiff had an arguable case in respect of the December 1995 incident and that her explanation for delay was satisfactory.  He claimed no prejudice other than the general prejudice which ordinarily follows delay, but submitted that the plaintiff's evidence showed that she was now unable to accurately recall the symptoms which arose from various injuries and unable to distinguish the sequelae of the first injury from those of the February 1996 injury, or later injuries.  In those circumstances he submitted that if the extension was granted and following trial the Court found in favour of the plaintiff, it could not attribute the disc prolapse and sequelae to the December 1995 incident, rather than the February 1996 incident (in respect of which no cause of action is alleged to have arisen) and so could award "little more than nominal" damages.  Accordingly, it was submitted that in respect of such a small claim it would be oppressive to deprive the defendant of the statutory time bar.

Evaluation

1. The principles applicable to a consideration of an application for an extension of time were examined in detail in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. Some basic propositions are:

1    It is for the plaintiff to show that the justice of the case requires the extension.

2    The most important matter to be considered is whether actual prejudice by reason of the delay will be suffered by the defendant if the action is allowed to proceed.

3    It is for the defendant to adduce evidence of prejudice and if that is done, it is for the plaintiff to show that the delay has not made the chance of a fair trial unlikely.

4    Where no actual prejudice is readily apparent, and the plaintiff has demonstrated, in an appropriately preliminary way, the apparent viability of the action and the absence of fault on his or her part, an extension will generally be granted.

5    Where there is actual prejudice to the defendant caused by the delay (usually where relevant evidence has been lost), so that the chance of a fair trial is unlikely, the justice of the plaintiff's claim is seldom likely to be strong enough to warrant the extension.

1. If the extension is granted and the matter proceeds to trial, the plaintiff in order to recover substantial damages will have to satisfy the Court that the history relied upon by medical practitioners in support of a conclusion that the disc prolapse occurred in December 1995 has been demonstrated to exist in fact.  If the plaintiff is unable to adduce satisfactory evidence proving the relevant history, her claim for damages in respect of the disc prolapse will fail.  Accordingly, if the plaintiff is now unable, because of the passing of time to sufficiently accurately recall events, injuries, symptoms and sequelae, any disadvantage will accrue to her, rather than the defendant.

1. Upon an application for an extension, it is sufficient that the plaintiff "demonstrate in an appropriately preliminary way, the apparent viability of the action" (Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor (1994) 35 NSWLR 497 at 508). At trial, when all relevant evidence has been presented, the complexion of the case may be significantly different from that which appeared on the limited materials available and presented when the extension was requested.

1. Although I agree that the information presented upon the hearing of the application may well be insufficient to persuade a Court finally determining the matter that the disc prolapse occurred in December 1995, it may be that at trial evidence from the plaintiff's general practitioner; relatives; friends or work associates is available corroborating the plaintiff's version of severe back pain with referred pain into her right leg first occurring in December 1995.

1. In Williams v The Minister, Aboriginal Land Rights Act 1983 & Anor (supra), Kirby P said, at 508:

"… it is obviously unnecessary for a claimant to establish a case in the detail that would be required at the trial. … To permit an obviously hopeless case to proceed would be to condone the harassment of a defendant otherwise protected by a time bar.  That could not be a proper exercise of the judicial discretion afforded by Parliament.  It would condone the unreasonable and be far from just: …".

1. The plaintiff, under cross-examination, did not resile from what she had said in her affidavit of the 5 December 1995 incident, namely:

"I felt immediate pain in my low back and referred pain into my right leg.  I had not had such pain before.  It was terrible."

If this assertion is ultimately accepted by the Court and is sufficient when combined with the other evidence to justify a conclusion that the disc prolapse occurred in December 1995, damages recovered would be more than nominal. In my view, it cannot be said that the plaintiff's case is so obviously hopeless, so far as an award of any meaningful damages is concerned, that to allow it to proceed would be to condone the harassment of the defendant otherwise protected by a time bar.

Conclusion

1. It having been conceded that there is an arguable case and the defendant not having claimed actual prejudice, nor that the plaintiff should be denied the relief that she seeks because of the absence of a satisfactory explanation for delay, it is a case where generally an extension would be granted.  The plaintiff's case, although at present supported by controversial evidence, is not obviously hopeless as to the recovery of more than meagre damages.  I consider it appropriate to exercise my discretion in favour of the plaintiff.

Order

1. The time within which the plaintiff may commence an action against the defendant for damages for personal injuries suffered in the incident of 5 December 1995, is extended to the date of the issue of the writ, namely 13 August 1999.