Sparkes v Hylemit Pty Ltd
[2016] VSC 453
•12 August 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2012 6098
| PAUL DARREN SPARKES | Applicant |
| v | |
| HYLEMIT PTY LTD | Respondent |
---
JUDGE: | J FORREST J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 27 May and 2 June 2016 |
DATE OF RULING: | 12 August 2016 |
CASE MAY BE CITED AS: | Sparkes v Hylemit Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2016] VSC 453 |
---
LIMITATION OF ACTIONS – Personal injury – Application to bring claim for common law damages out of time – Substantial delay – Prejudice - Fair trial - Limitation of Actions Act 1958 (Vic) s 23A – Application refused.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Sparkes appeared in person | |
| For the Respondent | Mr R Stanley | Transport Accident Commission |
HIS HONOUR:
Introduction
Mr Paul Sparkes seeks an extension of time (pursuant to s 23A of the Limitations of Actions Act 1958 (Vic)) (the Act) in which to bring a common law claim against his former employer Hylemit Pty Ltd (Hylemit).
The claim arises out of a transport accident in May 2002. Mr Sparkes was the driver of a truck which overturned on a minor road outside Shepparton.
The writ was issued over four years out of time and Hylemit says it is statute barred by s 5(1)(a) of the Act.
Mr Sparkes is now self-represented. He was previously represented by Clark Toop & Taylor (CTT) and subsequently Slater & Gordon (S & G), which acquired CTT.
For Mr Sparkes’ claim to proceed he must show that it is just and reasonable to extend time beyond the six years allowed by the statute. If he cannot do so, the limitation period stands, and his claim will be dismissed.
For the reasons which follow, I am not persuaded that an extension of time should be granted.
Background to this application
The accident occurred on 24 May 2002 at St James, a hamlet near Shepparton. The truck, which comprised a prime mover and natural gas trailer, overturned on a bend in the road.
As a result of the accident, Mr Sparkes suffered a range of physical and psychological injuries. His physical injuries were primarily to his knees. He underwent a number of surgical procedures in 2004 and 2005. The most recent surgery was to his right knee in 2011.
Mr Sparkes has not worked since the accident and is currently on a disability pension. Prior to that, he was in receipt of Centrelink payments.
In September 2003,[1] Mr Sparkes engaged Ms Patricia Toop of CTT to act for him in respect of the injuries sustained in the accident. At that time, he was receiving weekly payments of compensation. The firm worked primarily on his claim for impairment benefits.
[1]Transcript of Supreme Court hearing on 2 June 2016, 14 (‘Transcript’).
Between 2003 and 2008, Mr Sparkes lived at several different addresses: with his wife in Hampshire Crescent, at an address in Coliver Road, and for a while with his parents.[2] During that time he attended medico-legal appointments on a number of occasions – both on behalf of his, and his employer’s solicitors.[3]
[2]Ibid 30.
[3]Ibid 9.
On 23 May 2008, the limitation period for Mr Sparkes’ common law claim expired.
In December 2010, Mr Sparkes’ claim, pursuant to s 98C/E of the Accident Compensation Act 1985 (Vic), was settled, and in early 2011 he received approximately $30,000 after costs.[4]
[4]Ibid 17.
In March 2012, CTT wrote to the Transport Accident Commission (TAC) seeking a serious injury certificate (under s 93 of the Transport Accident Act 1986 (Vic)) on behalf of Mr Sparkes. This was supported by an affidavit sworn by Mr Sparkes on 16 March 2012 (the 2012 affidavit). This is a necessary precursor to bringing a negligence proceeding and was the first occasion upon which Hylemit or TAC knew of a potential common law claim.
On 21 May 2012, Mr Sparkes was granted a serious injury certificate by TAC. The accompanying letter from TAC to CTT identified ‘an issue’ with the Act and common law proceedings, namely, the failure to issue the writ within the six year statutory period.
On 1 October 2012, TAC again wrote to CTT pointing out ‘the issue’ with the Act.
This proceeding was issued on 29 October 2012. The defence filed on behalf of Hylemit asserted that the claim was statute barred.
On 16 January 2014, S & G (which had by then acquired the business of CTT) filed a summons applying for an extension of time on behalf of Mr Sparkes.
On 30 January 2014, an unsuccessful mediation was held. The trial was vacated on 6 February 2014, and a number of directions hearings were subsequently adjourned.
On 1 April 2016, the matter came before me for directions and the hearing of an application by S & G to cease to act for Mr Sparkes in accordance with s 20.03(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). I granted that application and made orders for the hearing of Mr Sparkes’ extension of time application.
Mr Sparkes appeared for himself both on that occasion and on this application on 27 May and 2 June. In contrast, Hylemit failed to appear. This was despite the Court giving notice to TAC (solicitors on record for Hylemit). Only after the Court contacted TAC on the day of the hearing was Hylemit represented by counsel (from about 11.30am), who also appeared at the further hearing on 2 June 2016.
Evidence on the application
Mr Sparkes swore three affidavits dated 16 March 2012, 24 January 2014 and 23 May 2016, which he relied on for the purposes of this application.
In accordance with orders made at the part heard hearing of Mr Sparkes’ application on 27 May 2016, Hylemit filed an affidavit on 1 June 2016, sworn by Ms Natalie Attard of TAC on that day.
Mr Sparkes also gave viva voce evidence at the hearing to supplement his affidavits. His evidence addressed in detail his state of knowledge and the steps taken by him to obtain legal advice in relation to the prosecution of his case.
In the course of the hearing, Mr Sparkes tendered one document: a letter dated 17 August 2007 (the 2007 letter) sent to him by CTT, the details of which I shall set out shortly.
Hylemit tendered the following documents:
(a) two letters from CTT to Mr Sparkes in 2010;
(b) a large bundle of medical reports and records; and
(c) letter of 16 September 2015 from S & G to Daly AsJ.
Applicable principles
A claim arising out of a transport accident must be brought six years after the date of the accrual of the cause of action[5] – i.e. the date Mr Sparkes sustained his injury.
[5]Limitation of Actions Act (Vic) s 5(1).
The Act, however, permits the Court to exercise a discretion to extend time in circumstances where ‘it is just and reasonable to do so’.[6] The discretion is wide, and the plaintiff bears the onus of satisfying the Court that the discretion should be exercised.
[6]Ibid s 23A(2).
The Act requires the Court to have regard to the following non-exhaustive list of factors in considering whether to exercise the discretion:
(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; and
(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.[7]
[7]Ibid s 23A(3).
The period, for the purpose of determining the effect of the delay, is that between the date of accrual of the cause of action – in this case, 24 May 2002 – and the date of issue of the writ or application to extend time.[8]
[8]Koumorou v State of Victoria [1991] 2 VR 265; Bell v SPC Ltd [1989] VR 170.
The only rider I would add to this proposition is that the effect of the Transport Accident Act 1986 (Vic) needs to be considered. As I mentioned earlier, the existence of a serious injury within the meaning of that act is an essential precondition to prosecution of a common law claim arising out of a transport accident. That means that the end point, for the purpose of delay, is the lodging of the relevant documentation for the purpose of a serious injury determination with TAC. This, as is the case with a writ or summons, puts the defendant (and its insurer) on notice of the potential claim. In other words, the relevant delay, where leave under s 93 of that Act is required, is that between the date of accrual of the cause of action and the date of the making of the serious injury application.
It is up to the Court to synthesise the competing interests and considerations set out at [29]. This usually requires a careful investigation into the plaintiff’s conduct, and the effect an extension of time would have on the parties.[9]
[9]Tsiadis v Patterson (2001) 4 VR 114, 123-124 [33]; Millard v Victoria [2006] VSCA 29, [42] (‘Millard’); Clarke v McGuiness [2005] VSCA 108, [38] – [40]; Bell v SPC Ltd [1988] VR 123, 125-6.
Crucial to this exercise is any prejudice to a defendant, real or implied, caused by the failure of the plaintiff to comply with the statutory time limit. Limitation provisions are enacted as a matter of public policy and founded on the proposition that delay produces a general deterioration in the quality of justice.[10] The oft-cited statement of McHugh J in Brisbane South Regional Health Authority v Taylor reads:
The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates”. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists…The longer the delay in commencing proceedings, 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.[11]
[10]Marceta v Efandis [2016] VSC 265, [11] (Beach JA).
[11]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 551 (McHugh J) (citations omitted) (‘Brisbane South’).
The pleaded case against Hylemit
The statement of claim alleges that Mr Sparkes lost control of the prime mover on 24 May when travelling on New Dookie Road. The particulars of negligence are in typical motor vehicle tort litigation form and provide, at best, a marginal insight into what Mr Sparkes’ case might be at trial.
The following particulars, at least, give a clue as to what might be alleged at trial:
(g)failing to heed the need for a heavy prime mover to undertake the bulk delivery of natural gas;
(i) failing to maintain the prime mover in good condition and repair;
(j)providing a prime mover which was inadequate for the purpose of the haulage then being undertaken;
(k)providing a prime mover which was inadequately powered for the haulage then being undertaken;
(l)failing to have regard to the impact that the haulage then being undertaken upon the plaintiff’s ability to control the prime mover;
(m)failing to heed the tendency of the prime mover to off steer by reason of loads which it was required to haul;
(n)failing to heed complaints as to the inadequacy of the prime mover; and
(o)failing to heed complaints as to the steering capacities of the prime mover when undertaking heavy haulage.
The circumstances surrounding the accident
In the 2012 affidavit, Mr Sparkes deposed as follows:
The subject transport accident occurred on 24 May 2002. I had been employed by my then employer, Hylemit Pty Ltd trading as Treston Gas, for a period of about three years. That work involved me undertaking bulk and hose reel deliveries which involves the delivery of liquefied gas to any number of locations including farms, factories, domestic houses and businesses. I used to travel down to the Hastings Refinery or alternatively the Mobile Refinery at Altona on a nightly basis in order to load up with the liquefied fuel product. That sort of trip would take 10-12 hours return and the local deliveries would then be taken by another employee. On other occasions, my employer would have deliveries undertaken by another company Cootes which would drive the load up to Shepparton for transport up to their own delivery truck.
On 24 May 2002, I was driving a Kenworth T300 vehicle undertaking deliveries for my employer and travelling on the new Dookie Road, Cosgrove. This truck was in poor condition, and known to be in poor condition and had been the subject of complaints by me to my then employer on a number of occasions. The essential problem was that the prime mover was too small for the job which was required to be undertaken and this was particularly evident in the poor steering and control of the vehicle when it was in motion.
The subject accident occurred on the new Dookie Road at Cosgrove when the vehicle I which I was driving failed to take a corner in the road and ended up striking a table drain. The effect was that the bonnet of the truck sprung open and I believe that I was projected through the windscreen of the truck into the bonnet and then into the engine cavity. My legs remained in the cabin and were subjected to a significant degree of trauma and I believe that my left knee was hyper extended. Also, in the force of the collision the trailer detached from the prime mover and the roof of the prime mover was ripped off as the truck rolled over and that caused the dashboard to come into contact with my legs as well….[12]
[12]Affidavit sworn by Mr Sparkes on 16 Mach 2012, [6]-[8].
A Victoria Police collision report was compiled at the time of the accident and is available to the parties. It appears to be authored by a Sergeant O’Connor, whose opinion as to the cause of the accident was:
[Mr Sparkes’ vehicle] travelling east on New Dookie Road, Cosgrove (sic) failed to take bend lost control then overturned onto roof. New Dookie in width nine metres 55 metres length of skid marks, three metres scuff marks, one [illegible] 33 metres from [illegible] of roadway to where prime mover came to rest.
WorkSafe also investigated the circumstances of the accident and a copy of the WorkSafe incident file contains illegible photocopies of original photographs, which are likely to show the scene of the accident. The investigation was apparently carried out by Mr John Rodda, who visited the Hylemit depot in Benalla Road, Shepparton, and Mr Francis Duggan, a WorkSafe inspector who attended the scene of the accident the following day.
In the incident summary completed by Mr Duggan on the day after the accident, he noted that he:
(a) spoke with employees of Hylemit and the CFA incident controller;
(b) identified that ‘speed may have been a contributing factor’; and
(c) did not implement any preventative measures.
The file also contains a series of invoices relating to servicing the prime mover and/or the trailer in the years leading up to the accident.
The affidavit of Ms Attard confirms that there are no other records available from Hylemit (which is now part of Origin Energy Pty Ltd), Victoria Police or WorkSafe. No information could be obtained from the SES, which apparently attended the scene of the accident.
Medical evidence
At my request, Hylemit tendered medical reports concerning Mr Sparkes, which run to two large ring folders and comprise the following material:
Plaintiff’s Medical Records
- Medical Records of the Alfred Hospital
- Medical Records of Dr Dyson
- Medical Records of Mr Critchley
- Medical Records of Dr Ratcliffe
Plaintiff’s Medical Reports
- Radiology dated 12 November 2010
-Dr Dyson dated 4 September 2005, 15 March 2006, 7 August 2007, 3 November 2009 and 17 June 2013
- Operation Report dated 24 May 2002 and 26 May 2002
-Mr Critchley dated 19 August 2004, 9 May 2005, 20 January 2011 and 5 July 2011
- Mr MacDonald dated 17 June 2004
- David Jones dated 5 July 2001
-Mr Ratcliffe dated 14 April 2003, 5 September 2003, 5 July 2010 and 8 January 2014
- Mark Tamaray dated 5 September 2003
- Alfred Hospital dated 17 June 2004
Plaintiff’s Independent Medical Reports
- Dr Kaplan dated 20 September 2010 and 27 December 2013
- Mr Haw dated 19 September 2010
- Mr Dowling dated 25 June 2011 and 15 December 2013
- Mr Stapleton dated 3 December 2013
- Mr Walsh dated 18 November 2013
- Professor Helme dated 15 November 2013
- Mr Miller dated 26 August 2013 and 29 January 2013 [2014]
WorkSafe Independent Medical Reports
- Mr Fish dated 17 March 2010, 23 April 2010, 19 October 2010
- Mr Prytula dated 25 February 2010
- Mr Shannon dated 24 May 2006 and 11 September 2006
- Dr Walton dated 18 May 2006 and 12 September 2006
-Mr Lietl dated 10 October 2002, 6 March 2003 and 29 April 2004
TAC Independent Medical Reports
- Dr Fish dated 2 December 2013
- Mr Kierce dated 7 January 2014
Mr Sparkes sustained the following injuries in the accident:
(a) a degloving laceration to the right ear;
(b) a severe injury to the left knee with a rupture of major ligaments;
(c) a significant injury to his right knee with damage to the structure of the knee; and
(d) a marked psychological reaction as a consequence of the physical injuries.
After his initial treatment at the Alfred Hospital (including repair of the left knee ligament ruptures), Mr Sparkes was managed by Dr Dyson, his general practitioner, and by Mr Critchley, orthopaedic surgeon.
Mr Sparkes did not do well after the left knee repair procedures, and, in mid-2004, Mr Crichley carried out an anterior cruciate ligament reconstruction of his left knee. Mr Sparkes also underwent two arthroscopies, in October 2004 and July 2005, to repair the injuries to his right knee, and a further arthroscopy of the left knee in March 2011. Mr Critchley, in a report of January 2011, said of Mr Sparkes’ knee injuries:
He now has post-traumatic osteoarthrosis of his right knee, and he is currently waiting approval for an arthroscopic debridement of this lesion…
… As far as his prognosis is concerned he will probably slowly develop over a period of time, significant osteoarthrosis of his knees.
This may eventually require more major surgery, and perhaps even joint replacement many years from now.
Prior to this he may require intermittent arthroscopic debridements of his knees to keep him going…
In addition to his physical injuries, Mr Sparkes suffered a significant psychological reaction, which was commented upon by the medicos as follows:
(a) in September 2005, Dr Dyson said he was likely suffering from secondary depression;
(b) in 2006, Dr Walton, medicolegal examiner, diagnosed chronic adjustment disorder with anxiety and depressed mood; and
(c) in November 2009, Dr Dyson noted that Mr Sparkes has suffered significant emotional problems and depression as a result of his injuries.
In September 2010, Dr Kaplan, a consultant psychiatrist, in his medico-legal report, diagnosed an adjustment disorder with mixed anxiety and depressed mood, and noted:
He feels demoralised and intensely frustrated by his inability to work and his enforced inactivity. He feels stigmatised as a result of being unable to work and being a WorkCover recipient and his self-esteem has been damaged. He experiences sleep and appetite disturbance, has a reduced capacity to cope with stress and noise, has difficulty with his memory and concentration and he has become socially withdrawn…Mr Sparkes was traumatised by a frightening accident and he has been left with a number of psychological sequelae. He describes intrusive thoughts regarding the accident, avoidance symptoms and the experience of phobic anxiety with regard to travelling as a car passenger. In addition, he is fearful of driving trucks. His anxiety and depression are probably partly related to the trauma of the incident.[13]
[13]Dr Albert Kaplan report of 27 December 2013.
In a history given in February 2010 to Dr Pritula, a psychiatrist engaged by Hylemit’s worker’s compensation insurer, it was noted that:
He’d finished seeing a psychologist in November 2009 when WorkCover stopped payments for this. He said that he had a breakdown in the middle of 2009 and was suicidal at the time. The doctor diagnosed adjustment disorder with depressed and anxious mood.
In June 2011, Mr Dowling, a medico-legal neuropsychologist, noted, as a result of a consultation with Mr Sparkes, that his memory had become hopeless to the point that he would buy the wrong things at a supermarket.[14] Whilst I am not confident that is the best indicator, it seems clear there were some problems with Mr Sparkes’ memory around this time.
[14]Mr Peter Dowling report of 25 June 2011.
In relation to Mr Sparkes’ psychological state, Mr Dowling said:
some of the emotional features that contribute to the psychiatric diagnosis of adjustment disorder with anxiety and depressed mood could well have an organic basis, at least in part…[15]
[15]Ibid.
Mr Sparkes’ unsatisfactory emotional state was also noted on a number of occasions by Dr Dyson, who reported in 2013:
Paul continues to have left knee pain and occasional locking. I suspect there is minor meniscus tear. His situation has been complicated by a lot of emotional stress, for which he required counselling. I believe in the early stages he suffered PTSD following the accident. In later years, he has been under a lot of stress with his relationship breakdown, and a second relationship also meeting an acrimonious end. He doesn’t tolerate any excess work on his legs and avoids stairs and kneeling. At various times Paul appeared to be improving markedly, I believe at one stage he did most of the subcontracting on a house he built. His social situation was somewhat positive during this period. I feel his relationship difficulties, his depression and his physical symptoms all interrelate.[16]
[16]Dr John Dyson report of 17 June 2013.
In a report of 23 December 2013, Dr Kaplan said that Mr Sparkes’ psychological condition had stabilised.
Analysis
In this case, the primary issues in determining whether an extension of time is ‘just and reasonable’ are:
(a) the state of Mr Sparkes’ knowledge as to common law rights and any limitation provision prior to May 2008 (when the time for bringing his claim expired) and up to March 2012 – when TAC was put on notice of the serious injury application;
(b) what efforts Mr Sparkes made to pursue his common law claim (and any extension application) up to March 2012; and
(c) what prejudice (if any) has been sustained by Hylemit as a result of the delay in bringing the claim.
To this might be added the fundamental proposition that notice of Mr Sparkes’ claim was nearly four years out of time and it is up to him to persuade the Court that it is appropriate to grant the extension.
What was Mr Sparkes’ knowledge as to his common law rights and the limitation period?
I accept Mr Sparkes’ viva voce evidence that when he first went to see Ms Toop in September 2003 it was to obtain a lump sum payment as, by that time, he had been made redundant by Hylemit.[17] He said that the primary focus of his lawyers, initially, was to keep him on weekly payments and then to obtain a disability pension.[18]
[17]Transcript, 15.
[18]Ibid 13.
Mr Sparkes said that he and his wife separated in 2009. Prior to the separation, his wife communicated with his solicitors.[19] He was depressed in those years and would stay in bed and be unable to do things, relying on others – particularly his wife – to do things for him.[20] This included complete reliance on her in relation to the progress of his claims and the advice given by his solicitors; he said, ‘I did have a lot of time that I relied on my ex-partner because I was unwell through the injuries’.[21]
[19]Ibid 10.
[20]Ibid 11.
[21]Ibid 10, 11.
Mr Sparkes said that the first occasion upon which he was given advice about a potential limitation issue was from his then lawyers, CTT, at a meeting on 31 May 2010.[22] This meeting was to discuss the progress of his impairment assessment claims. In relation to the limitation issue, he said he was told ‘it would be okay because he was doing things’[23] to pursue his claim, or words to that effect.
[22]Ibid 20.
[23]Ibid 21.
However, the 2007 letter produced by Mr Sparkes during the second day of hearing (having obtained it from S & G during the Court’s luncheon adjournment) addressed to Mr Sparkes’ residential address, read as follows:
I refer to your attendance at my office eon [sic] 18 September 2003 and confirm that you sustained in a single vehicle accident on or about the 24th May 2002 during the course of your employment with Teston Gas Pty Ltd located in Shepparton.
I note that I have not heard from you in quite sometime [sic].
I have now completed a review of your file. You have six years within which to bring a common law claim for pain and suffering and economic loss. You have until 23 May 2008.
We would be pleased if you could contact our office and provide us with an update as far as you are progressing and advise us if you wish to proceed with a claim.
If we do not hear from you within 14 days we will assume you no longer wish to pursue a claim and we will close your file. Thank you for providing us with your instructions.
Yours faithfully
Patricia Toop
Mr Sparkes had referred to this letter in general terms in his affidavit of 22 January 2014 and maintained in his viva voce evidence that he did not receive it, although he had been told of its existence in 2012.[24] He said that the first time he saw it was on 2 June 2016 when he went to S & G’s offices.
[24]Affidavit of Mr Sparkes sworn on 22 January 2014, [8]; Transcript, 25.
In his affidavit, Mr Sparkes went on to say:
I am also advised by my Solicitors, Clark Toop & Taylor, that in April 2009, my then wife wrote to them, concerned about my ongoing transport accident injuries and in particular my mental health. I am unaware of the specific content of that letter. That letter did prompt further contact between myself and Clark Toop. I then left it up to my Solicitors to do what had to be done to advance my claim. I believe that generally I have complied with requests of them. At times I have had difficulty comprehending advice and responding to advice, due to the nature of my physical and psychological injuries. Further, not long after my then wife wrote to my Solicitors, she and I separated. I have had difficulty dealing with that separation and I have been involved in family law proceedings. At times I have been unable to deal with the family law proceedings and worry about my compensation claim.
I have attended a number of medical appointments as part of the claim for injuries suffered in the accident. I also believe that my medical records are available. I am advised by my Solicitors that a lump sum claim was lodged on my behalf with TAC in approximately March 2012. Subsequent to that application, I attended medical appointments arranged by TAC. I am advised by my Solicitors that on 21st May, TAC granted a Serious Injury Certificate and gave consent for me to commence common law proceedings. I further believe that those proceedings were commenced on 29th October, 2012.
Before the accident, I had not been involved in any other work or car accidents. I have never had any other work or TAC claims. I was not aware of a 6 year limitation period when I first attended Ms Toop. When I returned to see Clark Toop in 2009, my understanding was that as long as I was doing something about my claim to advance it with WorkCover, then there would be no problem with the claim.[25]
[25]Affidavit of Mr Sparkes sworn on 22 January 2014, [9]-[11].
It is not entirely clear whether the reference in the final paragraph to 2009 is correct. Mr Sparkes said that at a conference in May 2010 he was told of the expiry of the six year limitation period.[26] Subsequent to that conference, on 31 May 2010 a solicitor from CTT wrote to him (the 2010 letter). The letter dealt primarily with his claim for payments under the Accident Compensation Act 1985 (Vic) but also states:
I confirm that you are aware of the six year limitation period having expired on 23 May 2008 and that we had advised you of your rights and entitlements that you were too unwell to pursue any claims within the time required.[27]
I confirm that you wish to pursue a serious injury application at the conclusion of the Claim for Permanent Impairment Benefits and that you are aware the Defendant may take issue regarding the time limit.
[26]Transcript, 31.
[27]Ibid.
Counsel for Hylemit cross-examined Mr Sparkes at length about the 2007 letter and his understanding of its contents.[28] Mr Sparkes’ position remained constant. He said that he had not received that letter and the first time he became aware of its existence was just prior to swearing the 2012 affidavit.
[28]Ibid 19 – 26.
The primary thrust of the cross-examination was to the effect that Mr Sparkes received communications leading up to May 2008 concerning attendances at medical appointments and other requests from CTT and that it was surprising (an understatement, given the tenor of the cross-examination) that he could not recall receiving the 2007 letter.
Counsel for Hylemit suggested that I treat Mr Sparkes’ evidence with incredulity. However, I cannot lose sight of the fact that, as Mr Sparkes himself made clear, he has no legal training or knowledge and left school at a young age.
The evidence as to the correspondence between Mr Sparkes’ ex-wife and CTT made it clear that, amongst other issues, the question of the limitation period on the common law claim was discussed by her with CTT from time to time around 2009.[29] Notwithstanding this, Mr Sparkes was adamant that the conference in May 2010 was the first time he had received advice that his claim was statute barred.[30]
[29]Ibid 36.
[30]Ibid 33.
Mr Sparkes’ account that he was suffering considerable physical and psychological issues in the years leading up to the expiry of the limitation period is supported by the medical evidence to which I have referred at [41] to [49]. It is clear that a combination of his injuries, unemployment and the state of his relationship with his wife affected him significantly. I accept his account that he relied upon his then wife to assist him in his dealings with the solicitors.
Notwithstanding the penetrating nature of the cross-examination of Mr Sparkes, I accept his evidence that he was unaware of the contents of the 2007 letter. A reasonable amount of the cross-examination focused on what, I think, a lawyer might have done in Mr Sparkes’ position. The reality is that I am persuaded that Mr Sparkes was, during this time, dependent on his wife and close relatives to help with prosecuting what were fairly complex issues for a lay person – indeed, the intricacies of the Transport Accident Act 1986 (Vic) and the Accident Compensation Act 1985 (Vic) continue to baffle many lawyers and judges. The medical evidence as to his psychological state confirms that he was having difficulty coping with both physical and relationship issues, and that this was a difficult time for him. To that may be added the fact that he was living in Northern Victoria and had little, if any, face to face contact with his lawyers.
Ultimately, having examined the material carefully, I am satisfied that Mr Sparkes first became aware of the effect of the limitation period on his rights in May 2010. In that regard, I accept his evidence in cross-examination as follows:
Q. So, it’s your evidence is it that until 2010 no solicitor had told you of a time limit….
A. That’s my – that was – for me to remember that was the last – the first time I spoke about with a solicitor and I was told because we just finished doing the lump sum payout, because I come at 23 or 25 per cent instead of 30 per cent, and they said but don’t worry about it because the big money is in the civil law compensation.[31]
[31]Ibid 26.
So, in summary, I am satisfied that this was not a case of Nelsonian blindness or deliberate disregard of the limitation period. I accept that in May 2008 Mr Sparkes was not aware of the limitation period in relation to a common law claim. I accept his evidence that he first knew of the effect of the Act on his common law claim in May 2010.
From May 2010, I am satisfied that Mr Sparkes was aware that his claim was statute barred. The question that then arises is the adequacy of the steps taken by him to pursue his common law claim and any application for extension of time.
What efforts were made by Mr Sparkes to pursue his claim once he became aware of the limitation period?
In Mr Sparkes’ affidavit of 24 January 2014, he said as follows:
When I returned to see Clark Toop in 2009, my understanding was that as long I was doing something about my claim to advance it with WorkCover, then there would be no problem with the claim.[32]
There was a detailed cross-examination on this point.[33]
[32]Affidavit of Mr Sparkes sworn 22 January 2014, [11]; Transcript, 37.
[33]Transcript, 37-39.
The question is whether any fault is to be attributed to Mr Sparkes by reason of the delay once he was aware of the limitation provisions in May 2010. In effect, he says that his lawyers told him that it was not essential to institute common law proceedings so long as he was doing something. In Davies v Nilsen I discussed what is to be expected of a layman who places his case in the hands of a solicitor:
I adopt without hesitation what was said by Starke J in Anisiena v H Crane Haulage Pty Ltd:
It is also conceded that the only step the claimant took was to instruct his solicitors to prosecute his claim. How they did this and against what parties the action was to be brought, were matters that he left to them. In my judgment it was both reasonable and desirable to do so. I do not think it would have been at all reasonable for him to have interfered with the conduct of his action. I would not do so myself, and I am of the opinion that it was entirely reasonable for a layman without legal qualifications to do as he did.
This proposition was subsequently adopted by the Court of Appeal in Millard v State of Victoria, where Mandie AJA (with Chernov and Ashley JJA agreeing) said:
I deal first with the question of delay on the part of the plaintiff himself. The accident occurred in December 1994 and the plaintiff first consulted solicitors in January 1996. That was not an unreasonable delay having regard to his injuries and the surgery which was performed on his left knee in February and May 1995. There is no evidence that the plaintiff’s solicitors did anything from January 1996 until January 1999 when they commenced to obtain medical reports. Nor is there evidence that the plaintiff did anything about his solicitors’ inaction during this period and it may reasonably be inferred that he did nothing. However, it was in my opinion not unreasonable for the plaintiff to leave his legal affairs in this respect to his solicitors, and, even if he was neglectful, it was at least understandable and excusable given his illiteracy and lack of education. At all relevant times after January 1999 it would have been apparent to the plaintiff that his solicitors were advancing the matter (if slowly) and it continued to be reasonable of him to leave the matter entirely to his solicitors, especially given the complexity and technicality of the matters with which they were attempting to deal.[34]
[34][2015] VSC 584, [62] – [63] (‘Davies’) (citations omitted).
On this point I do not accept Mr Sparkes’ evidence: it is inconsistent with the contemporaneous documentation, namely the 2010 letter. Mr Sparkes’ evidence that the solicitors told him, in effect, that it was satisfactory to wait, does not square with the contents of that letter. The thrust of the letter is that Mr Sparkes, after being advised of the existence of the limitations period, gave specific instructions to his lawyers to wait until the claim for statutory benefits was completed.
This, therefore, is a different case to that in Davies or Millard. Here, Mr Sparkes elected not to pursue the common law claim (or a serious injury application) and/or any claim for extension of the limitation period. In effect, this resulted in one and a half years of further delay. Allowing for his medical condition (which had stabilised by 2010), including the psychological injury, there is nothing in the CTT letter which suggests that this was not an informed decision.
There is nothing to suggest that the material provided to TAC by CTT on behalf of Mr Sparkes in March 2012 could not have been provided in May 2010, if Mr Sparkes had instructed CTT to do so.
Finally, I should mention two additional issues raised by Hylemit (both of which are furphies). One was Mr Sparkes’ failure to address questions from TAC once they were on notice of the claim. The first notice that TAC had of a claim was in March 2012. From that point on, TAC made a number of requests of Mr Sparkes’ lawyers as to the basis for the claim being lodged out of time. It was not until December 2013[35] that an affidavit explaining the circumstances concerning the delay was filed by Mr Sparkes. This point goes nowhere, at least on the question of notice: once TAC received the serious injury application, it was on notice that Mr Sparkes intended to bring a claim, and it was open to it to take steps to investigate the circumstances of the accident. Of course, it was in Mr Sparkes’ interest to provide TAC with information as it was always possible that Hylemit might ultimately waive a limitation defence. But that is as far as this point goes.
[35]Transcript, 43.
The second point lacking substance was that Mr Sparkes was uncooperative with S & G and did not respond to calls or letters from the firm between 2013 and 2015. Mr Sparkes denied this and said that on most occasions he responded to their requests. I have no reason not to accept Mr Sparkes’ evidence on this score. It is not always easy for unsophisticated clients to get in touch with their solicitors, even in this day of electronic communication. Moreover, Mr Sparkes’ dealings with this Court, as an unrepresented litigant, suggest that he is anything but unreliable. He, unlike Hylemit’s lawyers, attended every hearing scheduled by the Court.
Prejudice sustained by Hylemit
Mr Sparkes’ claim as to the inadequacies of the truck is illusory. The particulars of negligence hint vaguely at deficiencies with the truck and its load. However, there is nothing concrete to identify exactly:
(a) what was the cause of the truck leaving the road – i.e what was the precise failing that caused the truck to overturn;
(b) how the positioning of the load led to the accident;
(c) what, if anything, was wrong with the truck;
(d) what were the previous problems with oversteering;
(e) by whom, and when, were complaints made about the steering of the truck; and
(f) what notice, if any, Hylemit had of any problems with the truck.
There is no contemporaneous material – such as a report from Victoria Police, WorkSafe or any other organisation – which identifies any problem or deficiency with the truck or its load.
Although the WorkSafe investigation contained some records of the servicing of the prime mover, there was no specific investigation by the Victoria Police or WorkSafe into the underlying cause of the accident – other than a suggestion of speed. Issues such as overloading, mechanical fault or prior problems with the truck were simply not explored.
To put it bluntly, there is not a skerrick of evidence at the moment which supports the proposition that this accident was caused by some malfunction of the truck or deficiency in its load. All that exists are unsubstantiated allegations within Mr Sparkes’ particulars.
Further, and tellingly, Mr Soffra, the owner/operator of the business at the time of the accident, was interrogated by Mr Sparkes in the course of this proceeding as to the load capacity of the prime mover and the weight of the vehicle (both tare and gross). His answer was that he was unable to recall by reason of the passage of time.
Whilst it is clear that most of the Hylemit personnel are available to give evidence, the prospect of the company being able to defend a specific allegation concerning the maintenance of the prime mover (if that be part of Mr Sparkes’ case), a specific design fault (if that be the allegation), or alternatively, the nature and positioning of the load, is close to nil – as Mr Soffra’s answers demonstrate. In other words, the general prejudice identified by McHugh J in Brisbane South is magnified in this case, given it is quite unclear what case Hylemit will need to meet – if it is ever identified accurately.
The whereabouts of Mr Duggan are unknown.
The prejudice, therefore, to Hylemit is real. It is some 14 years since the accident and there is still nothing to indicate what case it must meet. The relevant period of delay is nearly ten years. The prospect of Hylemit endeavouring to meet a case which might be devised over the ensuing months is not only unpalatable but constitutes an injustice.
The facts of this case may be contrasted with the situation in my recent decision of Davies.[36] In that case, a significant period of time, not dissimilar to the present, had elapsed between the time of the motor vehicle accident and the issue of the writ. However, in Davies, the circumstances of the accident were fully understood, were not in issue, and bespoke negligence on the part of the defendant. The only real issue was assessment of damages. There was a mass of contemporaneous material; the prejudice occasioned by the death of the treating doctor was minimised by the existence of his contemporaneous records. In that type of case, one could confidently say that whilst there was prejudice to the defendant, there was sufficient material available to reduce the degree of prejudice and, as I observed, if it affected anyone it was more likely to be the plaintiff than the defendant. In this case there is no contemporaneous material relevant to any of the alleged failings of the truck or the load. There are no investigations or reports and the allegations of negligence remain nebulous – at best. In my view, these are telling considerations.
[36][2015] VSC 584.
Synthesis and conclusion
I accept the proposition that, until May 2010, Mr Sparkes was not aware of the limitations provisions and their effect on his claim.
However, I am satisfied that Mr Sparkes knowingly determined in May 2010 to delay making an application for an extension of time. In the New South Wales Court of Appeal decision of Itex Graphix Pty Ltd v Elliott, Ipp AJA said:
A deliberate decision to allow a statutory limitation period to expire would be a powerful factor against the grant of leave. Where a deliberate decision to allow the period to expire has been made, ordinarily it will be difficult to provide an explanation for that decision sufficiently cogent to warrant the grant of leave.
…
In my opinion, to grant leave to sue long after the expiry of a limitation period, when the applicant has made a deliberate decision to allow the statutory period to expire, in the absence of special circumstances explaining satisfactorily the conduct of the applicant, would set at naught the purpose of the legislation. [37]
[37](2002) 54 NSWLR 207, 225 [91], 226 [98].
In this case, a deliberate decision was made not to pursue an application for an extension of time. By 2010, Mr Sparkes was in a position to make a measured decision – as the contents of the 2010 letter demonstrate. His decision to defer issuing the common law proceeding (or, more accurately in this case, to make a serious injury application) for nearly two years counts against him.
But the determinative factor is that of prejudice. As McHugh J said in Brisbane South:
The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice.[38]
[38]Brisbane South (1996) 186 CLR 541, 555 (McHugh J).
In my view such a degree of prejudice has been established.
In Gordon, in the context of the New South Wales legislative scheme, I said the following of prejudice and a fair trial:
in determining whether there is significant prejudice, what is to be considered is whether there can be a fair trial. A fair trial does not mean an ideal trial, but one that is “acceptably fair”. A Court has to make an assessment of what might occur at the trial in terms of whether an acceptably fair trial can be had. The applicant must satisfy the Court that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely. In South Western Sydney Area Health Service v Gabriel, Hodgson JA said:
“... The true issue on this matter is whether or not the applicant for the extension discharged the onus of satisfying the Court that there would not be such prejudice as would make the chances of an acceptably fair trial unlikely.”[39]
[39]Gordon [2007] VSC 517, [79].
Here, and for the reasons I have outlined, the nebulous nature of the case pleaded against Hylemit makes it virtually impossible for the company to receive a fair trial in trying to meet allegations that have never been crystallised or identified other than in the vaguest of terms. Its ability to meet such a case has been significantly impacted by the delay of nearly ten years between the date of the accident and the date upon which TAC received notice of the serious injury application.
Mr Sparkes bears the onus of persuading me that it is just and equitable to extend time. The delay is substantial and the prejudice to Hylemit outweighs any other considerations.
Orders
Subject to hearing from the parties, I propose to make the following orders:
(i) The application for an extension of time pursuant to s 23A of the Limitation of Actions Act 1958 (Vic) is dismissed.
(ii) The proceeding is dismissed.
(iii) The plaintiff is to pay the defendant’s costs of the proceeding, including reserved costs, to be taxed in default of agreement.
15
5
0