Spiteri-v-Commonwealth of Australia

[1999] NSWSC 585

CITATION:	Spiteri-v-Commonwealth of Australia [1999] NSWSC 585
CURRENT JURISDICTION:
FILE NUMBER(S):	020466/96
HEARING DATE(S):	02/06/99 11/06/99
JUDGMENT DATE:	11 June 1999
PARTIES :	Joseph Spiteri -v- The Commonwealth of Australia
JUDGMENT OF:	McInerney J at 1

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	020466/96
LOWER COURT JUDICIAL OFFICER:	McInerney AJ

COUNSEL :	For the Plaintiff: Mr. De Burg For the Defendant: Mr. Rundale
SOLICITORS:	For the Plaintiff: Astley Thompson & Valtas For the Defendant: Mr. Curtis of Australian Goverment Solicitor
CATCHWORDS:
CASES CITED:	Brisbane South Regional Authority-v- Taylor 1996 (186) CLR p541 Sydney City Council-v-Zegarac 1998 (43) NSW LR p 195
DECISION:	I therefore make order (2) in the Notice of Motion. I; I grant leave to the parties to further mention the matter to make any further orders sought.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

FRIDAY 11TH JUNE 1999

MCINERNEY AJ

020466/96 JOSEPH SPITERI-v-COMMONWEALTH OF AUSTRALIA

JUDGMENT

1    HIS HONOUR: This is an application by Mr. Spiteri, the Plaintiff for leave to commence proceedings against the Commonwealth of Australia, the Defendant, out of time in respect to injuries he alleged he received whilst a member of RAAF at Laverton Air Force Base at Victoria on 31st January 1986. The cause of action is negligence.

2    The application is opposed by the Defendant basically on the grounds that material before me fails to establish any causation between the accident and the Plaintiff’s condition and as a result of the affluxion of time together with the unsatisfactory nature of the medical material in the records held by the RAAF there is actual prejudice to the Defendant in attempting to defend this action.

3    A statement of claim was filed by the Plaintiff in this Court on 10th May 1996, the Defendant in its defence claims the Plaintiff’s action is barred by the Limitation of Actions Act 1958 Victoria, the Victorian Act is applicable because the accident relied upon occurred in Victoria.

4    The Plaintiff in his application relies on two affidavits sworn by him on 24th September 1996 and 19th May 1998 respectively together with certain exhibits. The Defendant relies on an affidavit of Mr. Curtis sworn on 8th May 1998. Section 5 of the Victorian Limitations Act restricts actions in tort to a period of six years from the date in which the cause of action arose. Section 23 A (1) relates to claims of the nature of the Plaintiff’s claims.

SECTION 23A;

(1) This section applies to any action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a statute or independently of any contracts or any such provision) where the damages claimed consist of or include damages in respect of personal injuries to any person.

(2) Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to sub-section (3) and after hearing such of the persons likely to be affected by that application as it sees fit, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought to be extended for such period as it determines.
(3) In exercising the powers conferred on it by sub-section (2) a court shall have regard to all circumstances of the case including (without derogating from the generality of the foregoing) the following-
(a) the length of and reasons for the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant:
( c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d) the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
s.23A
(e) the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable , might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.
(4) the powers conferred on a court by sub-section (2) may be exercised at any time notwithstanding-
(a) that more than six years has expired since the cause of the action accrued; or
(b) that an action in respect of such personal injuries has been commenced.

S23A(5) amended by No 57/1989 s3 (Sch. Item 118.2 (a)(b).
(5) An application under this section shall be made by summons in the jurisdiction in which an action has been or is proposed to be brought and a copy of that summons shall be served on each person against whom the claimant claims to have the cause of action, provided that the Supreme Court may give leave to bring an action in any court which seems to be appropriate.

5    The facts so far as they were revealed by the evidence before me is that the Plaintiff when stationed at Laverton Victoria on 31st January 1994 was working on constructing metal shelving systems with two other employees. It appears the section of a frame became unstable and began to fall, the Plaintiff attempted to secure it but it fell and hit him on the head, see report of accident, Exhibit C. There is no dispute that this accident occurred but the sequelae alleged is disputed.

6    In dealing first with section 23A3(3)(d) the section as I understand it relates to the question of causation of the injuries claimed in other words what effect if any the injury had on the Plaintiff’s neck and to his lumbar spine. The Plaintiff in evidence has claimed that since that time he has had pain in the neck and the lower back, the neck pain is associated with shoulder and arm pain.

7    The Plaintiff joined the RAAF as a trainee at the age of 18 and this incident occurred about 3 months later. It is undisputed that during the whole of his period of time in the RAAF his total treatment for the injuries he suffered in the course of his employment was carried out by the medical staff employed by the RAAF, and the undisputed evidence discloses that RAAF personal were not encouraged to seek treatment from civilian doctors. He was eventually referred by his superiors to investigations by civilian doctors determined by them and at the time this permission was not always granted.

8    The Plaintiff gave evidence before me and was cross-examined by Mr. Rundle who appeared for the Defendant. In chief he was asked by his Counsel about incidents such as falling from a ladder in 1986, three motor vehicle accidents that had occurred and he alleged in only one occasion in one of those motor vehicle accidents did he have pain, he said that lasted for a short time and then his condition returned to a normal state of affairs. He alleged in his evidence he had neck, left arm and back pain from the time of the accident until seen by Dr. Compton in 1995. He confirmed he never consulted any medical practitioners outside the RAAF and he was never told by them of any problems, in answer to a question by Mr. Rundle, he agreed he never asked for the results of x-rays. In any event, even if he had been told he would probably not be any the wiser as the x-rays did not disclose serious abnormalities.

9    Whilst he agreed he had initially made no complaints about his condition, he alleged, however, that he complained, as I understand his evidence, from time to time to his supervisors and course instructors. In particular in 1989 when he was transferred to number six squadron he complained to his Commanding Officer, flight Lieutenant Glynn Johnson, and was allowed to work at light duties.

10    He was cross-examined about an incident in October 1996 when he had reported he had hurt his elbow whilst boxing, he said whilst that was a description given in the report he was not in fact boxing but he was doing boxing training, he did agree, however, after this incident he complained of neck stiffness.

11    He was asked about his volunteering to go to Somalia with the Australian forces and agreed such volunteers had to be at peak physical condition. He was rejected, it appears, after some period because he had suffered a hamstring problem, he said that was the official reason but was only part of the reason why he was rejected, he said he was having problems attempting five mile runs when he was required to wear a bullet proof vest and helmet. He referred to a comment by the Commanding Officer Lieutenant Commander Ellis who specifically requested physical treatment for these problems if he was to be selected in a second group of volunteers which as it turned out were not required.

12    The totality of his evidence was to the effect that he had suffered these disabilities from the time of the accident and there had been no change in them until the operation performed by Dr. Compton.

13    In his affidavit sworn on 19th May 1998 he swore that he complained on a number of occasions after the injury of pain which in particular he suffered on many occasions as I understand his evidence and that required him to attend sick parade where he would be seen by either a nurse or medical assistant and sometimes referred to an RAAF doctor. It is not clear on the evidence whether such attendances were noted. If he was required to see a doctor during the day permission of his instructor or supervisor at the time was required but this permission was not always granted.

14    In his affidavit sworn on 24th September 1996 annexures, records apparently kept by the RAAF in relation to his complaints and treatments and those annexures are extensive from A to U.

15    Annexure A refers to the patient seeking treatment in respect to the relevant injury, the notation being;

Hit on the head with steel shelving, no loc, complains of headaches and dizziness.”

16    He was found to be neurologically normal and was said to have settled with bed rest and head injury observation was normal, he was discharged from the hospital on 3rd February 1986 but was re-admitted on 4th February 1986, Annexure B, when he was said to be still suffering from concussion after a head injury when he was hit on the head by a steel pole. He complained of persistent headaches and nausea, vomited once and blurring of vision, he was given treatment, he was said to have had a normal neurological examination and was admitted for bed rest, on 5th February it was noted that his headache had gone but he was still dizzy. He was discharged on 6th February 1986 .

17    Thereafter annexed to the affidavit are photstat records of various attendances and investigations carried out in respect to his neck and back. The next reference after January 1986 is October 1986, Annexure C, when there is a note on 24th October 1986, neck stiffness and medication was apparently prescribed, noted on 27th October 1986 that the neck was still painful on and off especially nocturnally and on sudden movement, left side radiated to left shoulder blade, slow onset on Friday. A thoraso lumbar x-ray was undertaken on 11th February 1987 because of unresolving back pain, this x-ray disclosed he had a scoliosis to the left, see Annexure D. On 19th October 1987 he was noted to have a stiff neck after motor vehicle accident three days previously, and on 23rd November 1987 he had painful left shoulder, there was a reference to touch football/ motor accident, neck problems in past, Annexure E. On the 11th November 1988 there was a cervical spine x-ray, which failed to disclose any abnormalities, Annexure F. On the October 1990 he was complaining of acute lower back pain and left leg, onset at nine o’ clock during lifting, Annexure G, he was complaining on the 17th October 1990 of lumbar spasm and paraesthesia, Annexure H, a lumbar sacral investigation was carried out, where it was noted that he had upper lumber scoliosis concaved to the right, disc spaces narrowing at L5 S1, this was brought about apparently because of lumbar pain in his left leg, Annexure I. It was noted that he’d been seen by a specialist on referral and had complained of a stiff sore neck for about a week with no precipitating event, 22nd February 1995, and on 6th April 1995 there is a note form the physiotherapist stating that he attended twice a week for several weeks for persistent neck pain, he required repeated mobilising to cervical 3,4 and 5 6, together with ultrasound and soft tissue damage, Annexure J. On 19th April 1995, Annexure K, he was presenting with recurring pain, the left side of neck, radiating to left shoulder, previous anti-inflammatory medication and physio with minimal effect and complaining of pain on flexion and extension of neck, 20th April he’s noted to have a why-neck, on 21st April 1995, Nursing Report request chit for next 7 days, 27th April 1995 cervical spine x-rays to hand no gross abnormality, long standing cervical pain and also arm and leg pain and tingling, that is Annexure K. A Cervical x-ray report of 20th April 1995 referred to minor reversal of the mid to lower cervical lordosis but no disc narrowing was noted, but there was some minimal lipping at C/6,C/7 and there was some restriction of flexion and extension, Annexure L. On 27th April 1995 it was noted there was no set pattern to pain, sometimes has loss of power in the left arm, query whether he needed a CT of the cervical spine and brain scan, also 15th May severe muscle spasm left trapesise, it was noted that he was currently under examination by a neurologist, Annexure M is a CT cervical scan 5th May 1995 was performed to investigate neck pain and no evidence of any abnormality in the cervical spine was detected and there was no sign of intervertible disc protrusion or spinal stenosis at any level the scan was said to be normal, Annexure N. On 14h May he complained of neck and left shoulder pain and that that pain continued, it was noted that he was seeing a specialist it was said the pain had got worse since last night and pain relief isn’t working. He had a limited range of movement, on 17th May he was noted to have been complaining of left neck and arm pain, CT scan, head and neck did not disclose any abnormality. On the 18th May, no improvement with pain, not coping at work and needs admission to Ward 2 for analgesics, Annexure O. On 16th May 1995 the report of a CT scan was noted but there was no abnormalities detected, Annexure P. On the 23rd May 1995 he was examined by a neurosurgeon, for complaints of left shoulder and arm pain, CT, left cervical spine disc protrusion at C5/6, query need for surgery or further investigation, Annexure Q. Dr. Compton, a specialist neurosurgeon, said that the MRI certainly was suggestive that he had a disc prolapse at C5/6, and Dr. Compton noted a long history of neck trouble, the doctor believed that the MR undertaken was suggestive of a C5/6 prolapse and because he had not improved with conservative treatment further investigation was required and surgical options should be considered, Annexure R. A cervical myleogram was undertaken and a report of that myleogram on 30th May 1995 from the Castlereagh Radiology stated the findings were consistent with the left posterior lateral disc protrusion together with other associated problems, Annexure I. He was seen again by Dr. Compton on 2nd June 1995 when it was noted he had some trouble on the right side on that occasion, the main problem was still on the left, he had a disc and osteryphite problems, on 8th June 1995 surgery was recommended for a posterior lateral C5 disc protrusion, a fusion was performed, spinal surgery was undertaken on 7th June 1995 for a left posterio-lateral disc protrusion, Annexure T.

18    One of the live issues in this application is whether there is credible evidence to enable the relationship of the neck problems, shoulder problems, back problems to be related to the incident of January 1986. The Plaintiff submits that the totality of the evidence before me discloses for the purposes of this application that there is such credible evidence, the Defendant on the other hand submits that I would not be so satisfied, submitting amongst other matters in evidence before me the Plaintiff exaggerated his condition and was not frank and truthful in answers to questions put by Mr. Rundle, the Plaintiff complained before me that he has had problems since the accident. There was no dispute he was a fit young man prior to the accident, the records show, as I have pointed out, that over the years although there are gaps there has from time to time been complaints about his neck pain, arm pain back pain and complaint of loss of power would, if accepted, suggest some disc involvement. As a starting point it is not disputed that the blow to the head in January 1986 was to the frontal parietal area and I infer it was a severe blow, causing him to suffer concussion that required hospitalisation on two occasions. I note in Dr. Aroney’s report, Annexure B to the affidavit of Mr. Curtis that the weight of the object that hit him was said to be in the vicinity of 30 kilograms. It is thus a matter of common sense to infer that that is the type of injury that could cause or could initiate problems in his neck. The neck could then go on over the years to degenerate and maybe suffer exacerbations of the underlying condition, if however, the injury initiated the degeneration then in my view there is evidence of causation to the original injury.

19    This is not atypical case of an industrial skeletal injury heard in Courts engaged in awarding compensation for personal injuries. There are many occasions when a condition not initially disabling initiates a condition in an otherwise healthy spine the spine then degenerates over the period causing serious disabling problems. In such cases the accuracy and truthfulness of the Plaintiffs evidence and/or of other witnesses as to the history of the condition since the accident is vital.

20    Whilst it may be said that the Plaintiff has exaggerated the degree of symptoms he has suffered the question of his credibility is one to be considered by the Trial Judge not by me. I am of the opinion that it would not be open to me in the circumstances on the material before me to conclude that his evidence was such that could not be accepted by a tribunal of fact. I point out again that the injury to his neck appeared to be severe. I am not of course seized with all the evidence that may be called at the Hearing.

21    In addition Exhibit B is from an organisation described as The Military Compensation and Rehabilitative Service, dated 16th December 1996, in respect to the Plaintiff’s claim for compensation for a spinal condition. That document testifies to the fact that it was found on the available evidence that the Plaintiff had suffered an injury arising out of the course of his military service, namely a C5/6 disc protrusion and chronic lumber spine injury on 31st January 1986, it was noted that the Defendant had admitted liability for that condition. Documentation on that base was tendered by the Defendant. It said that his condition could be considered as caused by repeated minor trauma and subsequent degeneration. On the history before me the major trauma in this case is the injury that we are dealing with.

22    Dr. Lawson, a very experienced Consultant Physician in a report of 5th July 1996, Exhibit A, refers in particular to the problems the Plaintiff suffered at work, page 2, he concluded, page 7, that the Plaintiff had severe and lasting effects from the injury he sustained in the accident in January 1986. I should note, also, that Dr. Compton, report 3rd May 1986, Exhibit A, refers to his long history of neck trouble.

23 I am therefore of the opinion that there is sufficient evidence to establish causation of the injury to his disabilities. In considering the other matters required to be considered under the Limitation Act, 23A(3)(a) it should be emphasised that the Plaintiff was in the hands of the Defendants medical advisers throughout, and it was not until he had the fusion operation that he became aware of the serious nature of his condition. He thereafter sought permission to have an MRI test as recommended by Dr. Compton instead he was ordered by the authorities to undergo rehabilitation, see paragraph 11 to 13 of his affidavit, sworn on 19th May 1998, he then sought legal advice on 20th December 1995, the statement was filed in Court on 10th May 1996. Up until the time of operation the evidence discloses he had no idea he had a disc prolapse being told he had a pinched nerve. In my view in all the circumstances the delay in instituting the proceedings has been satisfactorily explained.

24    I am satisfied for the purposes of this application that when he became aware of the serious nature of his condition he sought advice, the delay from June to December in receiving legal advice in all the circumstances here is reasonable, see also 23A (3) (e) I believe is wrapped up in the answer to Section 23A (3)(a), in respect to 23A (3)( c), the evidence discloses until the final diagnoses was made the Defendant took no steps to make available material to the Plaintiff that might be relevant to his cause of action. In relation to 23A (3) (d), it appears he had problems on and off over the years but did not consider that that they were serious and was able generally to carry on his duties in the RAAF. In relation to 23A (3) (f), he was subject to the advice of the RAAF. Authorities, in all the circumstances I am satisfied that that having regard to those matters he has given satisfactory explanations.

25    The last matter submitted by the Defendant was that pursuant to section 23A (3)(b), that there is prejudice to the Defendant in defending this action because of the delay in this matter. The evidence on this matter, relied on by the Defendant is contained in the annexures to the affidavit of George Curtis, Solicitor, sworn 8th May 1988., Mr. Curtis in paragraph 5 asserts that due to the lengthy delay in the commencement of these proceedings, the Defendant “would” be greatly prejudiced and it would be extremely difficult for his office to properly investigate the Plaintiff’s initial injuries and their causal link to the operation in 1995. There is no evidence of any attempt made by the legal representatives of the Defendant to investigate these matters and determine if evidence is available, the matters relied on do not lead me to the conclusion that such evidence is not available. A number of medical reports were tendered to this affidavit to establish this prejudice, namely from Professor R. Mitchell, 29th April 1998, Dr. M.Aroney,4th May 1998, Dr. J. Shand 5th May 1998, A B and C. Annexure D is a letter to the Plaintiff’s solicitors, setting out the material sent to the doctors in question.

26    Professor Mitchell in his report notes it would be difficult for the Defendant to obtain medical evidence firstly because of the delay involved and secondly the multiple Air Force personnel involved in the case. Mr. De Burg who appears on behalf of the Plaintiff submits this is an assertion and there is no evidence to suggest that any such attempts have been made, as I referred to earlier.

27    Dr. Aroney in page 3 in his report of 4th May 1998 as have referred to earlier had a history of a 30 kilogram shelf hitting him on the right frontal parietal area, at page 5 under the heading Discussion he agrees it is possible the accident did lead to some neck injury and he agrees however that because of the passage of time there is some difficulty, (the emphasis being mine), in being able to properly investigate all aspects of his medical condition allegedly due to the accident in 1986. He refers to the motor vehicle accident in October 1987 as important, he refers to the lost chance of interviewing him shortly after the accident, this assumes the Plaintiff would have commenced proceedings in that early period, and he states an examination closer to the time of the accident could certainly lead to more accurate opinion, I certainly do not see this material as leading me to conclude that it was not possible for the doctor on the evidence contained in the reports in the Defendants hands and in the evidence that the Plaintiff would give in Court to be able to give an opinion. Once again there is a great deal of speculation in this report

28    Dr. Shand referred to his psychological problems and said that psychiatry assessment 12 years later by means of relevant documents can provide no opportunity and the inability to carry out an up to date examination makes it difficult to determine the causation. If the matter proceeds Dr. Shand will have an opportunity to have an up to date medical examination. Whilst I concede it would be more difficult for the Defendants and for that matter the Plaintiff to run their respective cases, the question posed is whether from the Defendants point of view it is not possible to have a fair trial, as I have said earlier it appears that no attempts have been made up to the time of the swearing of the affidavit to investigate the matters in those circumstances difficult to conclude there is prejudice in the Defendant or if there is prejudice that it is significant prejudice.

29    The Defendant in its submission relies on the Brisbane South Regional Authority -v-Taylor, 1996(186)CLR page 541 in particular the judgment of McHugh J. In that decision, Toohey_and Gummow JJ, referring to the discretion in the Queensland legislation under review concluded in exercising a discretion to grant leave to commence proceedings out of time, a material consideration is whether by reason of the time elapsed a fair trial is possible.

30    In Sydney City Council -v-Zegarac 1998(43)NSW LR page 195 the NSW Court of Appeal considered the approach to be taken in these circumstances and the ramifications of the finding of prejudice in such applications. The Court there held that proof of actual prejudice even significant prejudice caused by the delay in bringing the action outside the limitation period does not necessarily dictate the rejection of an application for extension of time, Mason P. at page 199 in considering the NSW Limitations Act said:

“ I would hold that proof of actual prejudice or even significant prejudice does not dictate the rejection of an application for extension of time’’

31    His Honour went on further:

“ all the circumstances of the case must be taken into consideration.”

32    He went on to say:

evidence of actual or significant prejudice may lead to a refusal of the application on the particular circumstances of the case.

33    His Honour concluded his remarks in this respect by saying in weighing prejudice its import upon a fair trial is the primary focus, , see also Priestly J A, at page 221, as Powell J A pointed out, the application will succeed if in the opinion of the Judge it is just and reasonable to do so.

34    In all the circumstances in this matter I am not satisfied that the material in front of me has resulted in such a delay as to prevent a fair trial. I am not satisfied that in the circumstances significant prejudice of such a nature is such in this case to prevent a fair trial of the issues to be litigated, there is a considerable volume of medical evidence in the hands of the Defendant, indeed, one might say, all the relevant medical evidence. It must be borne in mind at all times that he was treated by the Defendants medical advisers. The evidence is they did not see fit to inform the Plaintiff of any medical problems until the Limitation term expired, indeed it could be said that the medical investigations carried out until 1995 did not disclose a serious medical condition of such a nature that would alert the Plaintiff to the fact that he should take action for damages.

35    Even if one were to accept prejudice as being established in my view it is not such that would inhibit a fair trial. The Defendant has not placed any material before me as to what investigations they have made by the evidence, there are obvious lines of inquiry.

36    I therefore make order (2) in the Notice of Motion. I grant leave to the parties to further mention the matter to make any further orders sought.

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