Stone v Structural Systems (Construction) Pty Ltd; Stone v Kennedy Plumbing Services (Vic) Pty Ltd (Ruling)
[2020] VCC 1622
•16 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-19-01061
| NATHAN JOHN STONE | Plaintiff |
| v | |
| STRUCTURAL SYSTEMS (CONSTRUCTION) PTY LTD | Defendant |
-and-
Case No. CI-19-01070
| NATHAN JOHN STONE | Plaintiff |
| v | |
| KENNEDY PLUMBING SERVICES (VIC) PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne (via ZOOM) | |
DATE OF HEARING: | 5 and 6 October 2020 | |
DATE OF RULING: | 16 October 2020 | |
CASE MAY BE CITED AS: | Stone v Structural Systems (Construction) Pty Ltd; Stone v Kennedy Plumbing Services (Vic) Pty Ltd (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1622 | |
RULING
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Subject: LIMITATION OF ACTIONS
Catchwords: Negligence – whether limitation period should be extended
Legislation Cited: Limitation of Actions Act 1958 (Vic), s23A
Cases Cited:WCB v Roman Catholic Trusts Corp for the Diocese of Sale (No 2) [2020] VSC 639; Moubarak v Holt(by his tutor Coorey) (2019) 100 NSWLR 218; Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1; Van Gerven v Amaca Pty Ltd [2012] VSC 131; Tsiadis v Patterson (2001) 4 VR 114
Ruling:Proceeding CI-19-01061: Not just and reasonable to extend the period of limitation relevant to the plaintiff’s claim against Structural Systems (Construction) Pty Ltd.
Proceeding CI-19-01070: Order extending the period of limitation to the causes of action set out in the plaintiff’s Statement of Claim against Kennedy Plumbing Services (Vic) Pty Ltd to 8 March 2019.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Tobin SC with Mr L Allen | Shine Lawyers |
| For the First-Named Defendant | Mr J Batten | Russell Kennedy |
| For the Second-Named Defendant | Mr R Stanley | Lander & Rogers |
HIS HONOUR:
Introduction
1 Nathan Stone (“the plaintiff”) commenced common law proceedings for pain and suffering damages on 8 March 2019 in respect to:
(a) an injury suffered when working for Structural Systems (Construction) Pty Ltd (“Structural Systems”) at the Ikea building site in Richmond on 12 February 2003; and
(b) further injury and/or aggravation of the previous left shoulder injury when working for Kennedy Plumbing Services (Vic) Pty Ltd (“Kennedy Plumbing”) when he fell through an asbestos sheet roof at premises in Spotswood on 16 February 2010.
2 In each proceeding the plaintiff alleges there was negligence and/or breach of duty on the part of either Structural Systems or Kennedy Plumbing, which was a cause of his injury, loss and damage.
3 Each common law proceeding is subject to the provisions of the Limitation of Actions Act 1958 (Vic) (“the Act”) and in particular s5(1), which provides for a six-year limitation period. Accordingly, the relevant limitation period in respect to the Structural Systems proceeding expired on 12 February 2009. The limitation period in respect to the Kennedy Plumbing proceeding expired on 16 February 2016.
4 Structural Systems has filed a Defence in which it raises the fact that the plaintiff’s proceeding against it is statute barred and should be forever stayed. Kennedy Plumbing has filed a Defence in the proceeding relevant to it, but has not specifically raised in the Defence the fact that the plaintiff’s claim is statute barred. In any event, on 19 February 2020, the plaintiff made application by Summons in each proceeding, effectively seeking leave nuc pro tunc to commence proceedings in each matter by 8 March 2019. The actual wording of each Summons is to seek an order that:
“The time during which the plaintiff may bring common law proceedings in relation to the injuries that are the subject of this proceeding is extended pursuant to section 23A of the Limitation of Actions Act 1958 to a date to be fixed.”
5 Notwithstanding that the second defendant does not appear to have specifically pleaded the fact that the plaintiff was out of time, the plaintiff concedes that he needs leave in respect of each proceeding to extend the limitation period and that he bears the onus to establish to the Court that it is “just and reasonable” to establish to the Court that the limitation period be extended.
Limitation of Actions Act 1958 – Section 23A
6 It is agreed between the parties that in each proceeding, s23A of the Act is the legislative provision that enables an application to be made to the Court and permits the Court to extend the limitation period (provided it is “just and reasonable so to do”). Section 23A relevantly provides:
“(3)In exercising the powers conferred on it by subsection (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following—
(a) the length of and reasons for the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c) the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d) the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”
Evidence
7 By Orders of the Court, the Structural Systems and Kennedy Plumbing applications were heard together. That is a convenient and sensible approach, as much of the evidence is relevant to each proceeding, but by the same token, the issues and evidence to be considered relevant to each proceeding are not necessarily the same.
8 At the conclusion of the oral evidence, the following documents were tendered in respect to both applications:
(a) The plaintiff:
(i)affidavit of plaintiff with exhibits sworn 9 September 2019 (including earlier affidavits sworn by the plaintiff on 20 November 2017 and 17 October 2018 in support of serious injury applications);
(ii)defendants’ interrogatories for the examination of the plaintiff and his answers thereto in the Structural Systems proceeding;
(iii)defendants’ interrogatories for the examination of the plaintiff and his answers thereto in the Kennedy Plumbing proceeding;
(b) The defendant – Structural Systems:
(i)Defendant’s Court Book, comprising three affidavits of Killian Donohoe, solicitor for the defendant, Structural Systems (being affidavits sworn 3 September, 9 September and 29 September 2020);
(c) The defendant – Kennedy Plumbing:
(i)Defendant’s Amended Court Book dated 5 October 2020 (comprising affidavit of Maree Kennedy sworn September 2020 with exhibits thereto; affidavit of Lillian Rizkala, solicitor for Kennedy Plumbing, sworn 8 September 2020, with exhibits thereto; and additional documents, being letter of Mr Bonomo and extract records of Austin Health).
9 In addition to the affidavit material, the plaintiff gave viva voce evidence. Maree Kennedy also gave viva voce evidence.
Brief history of events
10 The plaintiff was born in October 1975. His background is set out in the serious injury affidavit of 20 November 2017[1] as follows.
[1]Plaintiff’s Court Book (“PCB”) 87
11 The plaintiff attended school to partway through Year 10. Since then he has had a variety of manual-type employments, including landscaper, labourer and the like. In 1997, he suffered injury to his right knee but essentially made a full recovery.
12 In January 2001, the plaintiff commenced employment with Structural Systems as a labourer. He alleges that in the course of that employment on 12 February 2003, at the Ikea building site in Richmond, he was stripping formwork when he suffered injury to the left shoulder (“the first injury”).
13 Following the first injury, he was taken to the Epworth Hospital and his shoulder was relocated. He had an attempt to return on modified duties, but had problems with the shoulder continuing to dislocate. He was referred to the orthopaedic surgeon, Mr Bonomo, and a diagnosis was made of shoulder instability requiring surgery.[2] On 18 May 2004, he underwent shoulder reconstruction surgery.
[2]PCB 281
14 The plaintiff was able to return to employment after the surgery with Mr Bonomo in 2004, but did not return to work with Structural Systems. The injury with Structural Systems was the subject of a WorkCover claim for compensation.[3] The claim was accepted and he received statutory benefits. At some stage, he had assistance from Mr Chris Gamble of the CFMEU in respect to the calculation of his rate of weekly payments, as evidenced from the letter by Mr Gamble dated 10 May 2005.[4]
[3]Exhibit D1 (Structural Systems Court Book), page 17
[4]Exhibit D1, page 26
15 The plaintiff’s affidavit evidence is that after the first injury, he had rehabilitation for four to six months and was then able to return to work and get back to full duties. In his affidavit sworn 20 November 2017, he says that:
“… Over the years, I had ongoing aching in my left shoulder and occasionally when I rolled over in bed, it would cause my shoulder to dislocate and I would need to get it popped back in. But I was otherwise able to keep working.”[5]
[5]PCB 89
16 I will deal with all the evidence in more detail later in these reasons.
17 In June 2009, the plaintiff commenced work with Kennedy Plumbing as a labourer, which work included demolition and removing asbestos.
18 The plaintiff alleges that on 16 February 2010, while working for Kennedy Plumbing, he fell through an asbestos sheet on the roof of a house (although it may have been a shed) that he was working on, causing him to again injure his left shoulder (“the second injury”).
19 Following the second injury, the plaintiff attended at the Williamstown Hospital and was diagnosed with a dislocation of the shoulder.[6]
[6]Exhibit D2 (Kennedy Plumbing Court Book), page 49
20 Also following the second injury, he continued to work for Kennedy Plumbing for some months. Broadly speaking, his affidavit evidence is that his shoulder deteriorated to the point where it was “really bad” and he was having continual problems with it dislocating, such that he was referred back to Mr Bonomo in May 2015 and surgery was again recommended.[7] Eventually that surgery was performed on 28 March 2017. The plaintiff claims that he has ongoing limitation of function of the left shoulder/arm despite that surgery.
[7]PCB 282
21 Following the second injury, a claim for compensation was made by the plaintiff.[8] The plaintiff received statutory benefits associated with that claim, including the cost of the second surgery, after some disputation regarding liability for that procedure.
[8]Exhibit D2, page 34
22 Completing a brief chronology, on 15 September 2015, the plaintiff attended Shine Lawyers for advice regarding his WorkCover entitlements. By letter dated 19 October 2015,[9] Mr McGilchrist of Shine Lawyers wrote to the plaintiff and advised him, inter alia, about the fact that “a claim for damages can only be pursued within 6 years of the date of injury”. It is clear that when he first attended Shine Lawyers he was well out of time for the first injury but still in time to commence common law proceedings for the second injury. There was further contact with Shine Lawyers. Eventually, on 6 October 2017, the plaintiff was provided with written notification of an appointment with Ms Jing Zhu, barrister, to draft an affidavit for a serious injury application.[10] That appointment took place on 25 October 2017. He then re-attended Shine Lawyers on 20 November 2017 and serious injury applications were lodged against both Structural Systems and Kennedy Plumbing on that day.
[9]PCB 319
[10]PCB 344
23 The serious injury applications were rejected on behalf of each defendant and Originating Motions were issued by the plaintiff. On 23 October 2018, the plaintiff was granted the consent by each defendant to commence a common law proceeding for pain and suffering damages. His claims were then subject to the statutory processes before each proceeding was issued in the Court on 8 March 2019.
24 On 19 February 2020, the plaintiff, by Summons against each of Structural Systems and Kennedy Plumbing, sought the leave of the Court to extend the limitation period.
The evidence of the Plaintiff
25 In his affidavit in support of these applications,[11] the plaintiff says that he did not consult a lawyer at the time he sustained the first injury. He says:
“I thought the injury would get better, and in fact it did get better. I wasn’t thinking about lawyers or anything like that, I was thinking about getting back to work.”
[11]PCB 83
26 The plaintiff describes how he had, in fact, returned to work, including with Kennedy Plumbing. He says that:
“When I had my second injury, the one sustained during my employment with Kennedy Plumbing, I again managed to get back to work afterwards. I got back to most of my normal work, although I did have some continuing shoulder problems and needed time off work on occasion … .
…
It was during 2014 and into 2015 that I first realised that my shoulder was really bad. I was having continual problems with the shoulder dislocating, and kept having to go to the Austin Hospital for treatment.
…
By September 2015, my shoulder had popped out again … .
I decided to see a lawyer to see if anything could be done, since things weren’t looking good. I recall being advised that I should pursue my claim, but my unrelated personal legal issues took over again quickly. By the end of 2015, I was back in jail again … .”[12]
[12]PCB 84-85
27 The plaintiff has had criminal matters causing him to be incarcerated. In his Answers to Interrogatories sworn 21 August 2020,[13] he records relevant periods of incarceration as follows:
[13]PCB 56
(a) on or about 14 February 2014 to on or about 5 May 2014;
(b) on or about 11 January 2016 to on or about 20 September 2016;
(c) on or about 27 August 2017 to on or about 20 September 2017;
(d) on or around 18 December 2019 for around fifty days;
(e) from about 12 April 2020 for around sixty days;
(f) from around 11 June 2020 for around thirty-five days.
28 In his affidavit material, he says that because he was at times in jail, he had to “put my dealings with Shine on hold” as he had so many things going on. He says that after getting out of jail in August/September 2017, he was “able to get in touch with Shine Lawyers and have them lodge my application for a serious injury certificate”.[14]
[14]PCB 85
29 The thrust of his explanation for the delay in commencing the common law proceedings in his affidavits is that:
“Before seeing Shine Lawyers in September 2015, I had not previously gone to see lawyers because I had simply been hoping that things would get better and that I would be able to continue with work. I was also in jail for a time. I did not know anything about the time limits for bringing claims.
After seeing Shine Lawyers, it took a while to get my case moving because I was in and out of jail during 2014, 2015, 2016 and 2017 and had a lot of things going on in my life apart from my shoulder injury.”[15]
[15]PCB 85-86
30 The plaintiff is represented in these proceedings by Mr Tobin SC and Mr Allen. Mr Batten appeared for Structural Systems and Mr Stanley appeared for Kennedy Plumbing.
31 The plaintiff was first cross-examined by Mr Batten regarding the alleged incident on 12 February 2003. The plaintiff said he had a stripping bar above his head to pull down formwork at the Ikea building site. He gave evidence that, “as I put the bar in to pull it down my shoulder popped”.[16] He had an injury to his left shoulder on that day. He had not required any medical treatment for his left shoulder before 12 February 2003.[17] After the first injury he was off work “for maybe two to four weeks”.[18] He clarified that answer as being from what he could “remember”. He was then asked by Mr Batten:
Q:“Do you tell His Honour you've got a problem with your memory?---
A:It was a long time – it was a long time ago now … .”[19]
[16]Transcript (“T”) 30, Lines (“L”) 22-23
[17]T31, L1-4
[18]T31, L10
[19]T32, L9-10
32 Mr Batten suggested to the plaintiff that on 21 February 2003, he lodged an application for statutory benefits against Structural Systems. He answered “Mate, it was a – as I said, it was a long time ago, like”.[20] He confirmed he had assistance with the union in preparing that claim and received weekly payments of compensation for a period of time through until May 2005. He confirmed a recollection of a dispute about the rate of weekly payments and getting assistance from Mr Gamble at the union.[21] He also confirmed he was aware there are lawyers in the community who can assist workers who are injured and have disputes.[22] On this issue as to his knowledge of his rights back in 2004, he was asked:
Q:“Well, you keep telling us that it’s a long time ago, Mr Stone. But what I want to know is you have Mr Gamble from the union assisting you in respect to your rate of pay. Did you get or seek any advice about any other rights you may have following the injury to your left shoulder?---
A:I may of.”[23]
[20]T33, L12-13
[21]T34
[22]T34
[23]T34, L26-31
33 The plaintiff was specifically asked by Mr Batten whether he had any memory of going to anyone else other than Mr Gamble at the CFEMU, and he replied: “No.”[24]
[24]T35, L6
34 Mr Batten next cross-examined the plaintiff about symptoms in his shoulder after the first injury and surgery. The plaintiff gave evidence that he had an aching, but had a “good run with [his] arm, it did not pop out or anything after the first surgery”.[25] When asked about the extent of such symptoms after the first surgery and in particular whether, as per his affidavit material, he had occasion to roll over in bed and the shoulder would dislocate, he confirmed that was correct.[26]
[25]T36, L24-25
[26]T37, L21
35 I sought to clarify the plaintiff’s evidence about his shoulder popping out after the first surgery and whether he saw solicitors before the second injury. He said that he did not, “because I thought it would - I thought it’d heal and I’d return to being - return to normal work again”.[27]
[27]T39, L25-27
36 Mr Batten then put to the plaintiff that he knew he had an ongoing problem with the left shoulder after the first surgery. He said: “No, I don’t think I did. Like, I had a good run for about six or seven years, and after the second fall, I - just kept popping out.”[28]
[28]T40, L7-11
37 Mr Batten asked whether, before starting work with Kennedy Plumbing, he considered attending solicitors for his left-shoulder injury. The plaintiff gave evidence that he did not and “[m]y arm was all right after the first surgery”.[29] He confirmed that he knew there were solicitors available who could have assisted him in respect of the first injury but that “I didn’t have a problem after the surgery. I had a good - good run with my arm.”[30]
[29]T42, L16-17
[30]T42, L30 – T43, L1
38 The plaintiff was cross-examined by Mr Batten regarding his attendances on Shine Lawyers. He confirmed that he first attended Shine Lawyers in September 2015. He was asked whether that was the first time he had gone to lawyers about problems with his left shoulder, and replied: “I can’t recall - I can’t remember.”[31]
[31]T45, L1-3
39 The plaintiff was shown the letter from Shine Lawyers dated 19 October 2015[32] and asked whether, before today, he had seen that letter. He answered “I can’t remember”.[33] He said “I’d say I got the letter but as I say I got hundreds of letters from- - -”.[34] He was cross-examined generally about his knowledge regarding common law and whether he had read the letter from Shine Lawyers of 19 October 2015. He accepted that he would have read it. It was put to him that Shine Lawyers wrote to him in October 2015 saying he might have a viable common law claim and he was asked how long after that he returned to them and said “‘let’s pursue it’”. His answer was “I can’t remember”.[35] He accepted that while he was in jail he was still able to communicate with the outside world, but he could not remember whether he had contacted Shine Lawyers while in prison in 2016.[36]
[32]PCB 319
[33]T45, L18
[34]T46, L20-21
[35]T49, L2
[36]T49, L22
40 The plaintiff was next taken to a letter from Shine Lawyers dated 23 November 2016.[37] He was asked whether he could remember getting that letter, and said “I don’t know whether - I can’t actually remember it. Well, you know, like, as I said, I received thousands of letters from Shine.”[38]
[37]PCB 330
[38]T49, L28-30
41 The plaintiff conceded that the initial advice letter from Shine Lawyers of 19 October 2015 set out that the time limit against Structural Systems had expired on 11 February 2009 and that the claim against Kennedy Plumbing expired on or before 15 February 2016. In light of that concession, he was then cross-examined about when he first learnt about the relevant time limits by reference to his Answer to Interrogatory 17 of Structural Systems in the proceeding against them. His Answer to that Interrogatory is that his “‘first recollection about being told about time limits is in person, in about November 2016’”.[39] He conceded that his Answer to that Interrogatory was incorrect as, in fact, he first knew about time limits from when he received the initial advice letter of 19 October 2015 from Shine Lawyers.[40]
[39]T54, L22-25
[40]T55, L10
42 Mr Batten asked whether the first time he had a face-to-face discussion with his lawyers about time limits was November 2016. His answer was “I can’t remember”. He was then asked whether he could not remember “[b]ecause of the day and the time that’s elapsed” and his answer was “it was a long time ago”.[41] When asked whether he did anything in response to being advised by his lawyers in 2015/2016 that there were potential problems with time limits, his answer was “I can’t recall, I can’t remember”.[42]
[41]T55, L21-22
[42]T56, L4
43 The plaintiff was asked why, having seen Shine Lawyers in September 2015, he did nothing to commence legal proceedings until December 2017. In particular, he was asked whether he was able to give any explanation apart from being incarcerated, as to why it took over two years for proceedings to be issued. His answer was “no”.[43]
[43]T61, L11
44 The plaintiff was asked questions about relevant documents that may have existed at the time of the first injury, such as SafeWork identification method analysis and the like. His answer was that he could not remember any such documents.
45 The plaintiff was then cross-examined by Mr Stanley on behalf of Kennedy Plumbing. He was asked, at the time that he fell from the roof on 16 February 2010, whether he knew or had a mindset that such fall occurred because the employer had him doing something unsafe. His answer, in part, noted the lack of a harness or guardrails,[44] which I interpret to be an indication that he considered Kennedy Plumbing to have been at fault.
[44]T65, L24-28
46 The plaintiff confirmed in cross-examination by Mr Stanley that after the second injury he was taken to the Williamstown Hospital. He was shown the Claim Form relevant to that injury and confirmed it was his signature, but that the Claim Form had been completed in handwriting that was not his, and he could not remember getting assistance to fill in the form, and he could not identify the handwriting.[45]
[45]T66
47 The plaintiff agreed in cross-examination that after the second injury, his shoulder just kept popping out. He was taken to documents showing that he went to the Austin Hospital, and in particular ambulance entries, including an ambulance record of 5 September 2015, some ten days before seeing Shine Lawyers, with the shoulder popping out. He accepted that by the time he saw Shine Lawyers, he was in a really bad way with his left shoulder.[46]
[46]T70
48 Mr Stanley also cross-examined the plaintiff about the attendance at Shine Lawyers on 15 September 2015 with Mr McGilchrist, solicitor. He was taken to the letter of 19 October 2015, and again he conceded that the information in that letter was likely provided by him in conference with Mr McGilchrist. He was taken to the part of that letter which referred to time limits and a “viable common law claim”. He was asked whether he was told about time limits and having a viable common law claim against Kennedy Plumbing when he first attended Mr McGilchrist at Shine Lawyers. He gave evidence that he “can’t remember back that far”.[47]
[47]T74, L8-9
49 Mr Stanley next cross-examined the plaintiff about his affidavit material and in particular, his affidavit evidence that unrelated personal issues took over and by the end of 2015 he was back in jail. He was asked whether he could recall being advised that he should pursue a claim before he went back to jail in January 2016. His answer was “I can’t remember back that far”.[48]
[48]T74, L21-22
50 Mr Stanley again asked the plaintiff whether he recalled Mr McGilchrist at Shine Lawyers explaining to him that the limitation claim against Kennedy Plumbing was almost expiring. His answer was: “I’d say he might have, yes. But I - as I said, I can’t remember the conversation word for word or the meeting word for word.”[49]
[49]T75, L6-9
51 Mr Stanley drew the plaintiff’s attention to the fact that at the first conference at Shine Lawyers, a note was made that “‘Client advised me to call Melanie’”. The plaintiff confirmed that Melanie Murphy is his partner and that her phone number had been provided. He could not remember whether or not Mr McGilchrist phoned Melanie,[50] but he accepted that Melanie would be someone who would ordinarily be supporting him. His evidence was that he could not recall whether Melanie had a conversation with Mr McGilchrist.
[50]T75, L21
52 Mr Stanley asked the plaintiff about the advice in the Shine Lawyers letter of 19 October 2015 regarding time limits.[51] The plaintiff again accepted that he would have read that letter. Mr Stanley put to him:
Q:“So on reading that you’d say to yourself, and if you’re reading it about the time when the letter was drafted, a letter was dated, you’d say to yourself, ‘Wow. Well I'll – I’d better get to it. I’ve only got a couple more - or three more months to go before my time runs out’”?---
A:Yes.”[52]
[51]PCB 321
[52]T77, L17-21
53 Mr Stanley then asked:
Q:“Did you do anything about it then upon … call back Shine? Did you call back Liam and say, ‘Well come on, we’d better get this moving’?---
A:Well, that - we must’ve … because they got it rolling - got it going for me.”[53]
[53]T77, L22-26
54 The plaintiff was next cross-examined about his imprisonment in early 2016 and whether he had informed Shine Lawyers that he was going to prison. He said that his partner probably told them for him.[54]
[54]T78, L7
55 Slightly out of order, the plaintiff was cross-examined about the further consultation with Mr McGilchrist at Shine Lawyers on 30 November 2015. Mr Stanley put to the plaintiff that it was likely that the topics of that further conversation with Shine Lawyers would be in respect to what had been advised in the letter six weeks earlier. His evidence was that: “I’m sure it was yeah.”[55]
[55]T79, L3-4
56 Mr Stanley suggested to the plaintiff that it was likely that something was said to him in that November conference about the limitation period that is due to expire in February of the next year. His said that “I’m sure he did. But as I said, I can’t remember the conversations of the meeting word for word.”[56]
[56]T79, 12-14
57 Next he was cross-examined about the period in late 2015 and whether he clearly wanted common law damages at that time. He gave evidence that: “I wanted my - I wanted my shoulder fixed again, operated on a bit.”[57] Mr Stanley pressed him on that, and put to him: “You also wanted your rightful compensation.”[58] His answer was that: “I just thought - I just thought - my main goal was to get my arm going again.”[59]
[57]T79, L31 – T80, L1
[58]T80, L2
[59]T80, L2-4
58 Mr Stanley put to the plaintiff that one of the mitigating factors in his criminal proceedings was the fact that he had an injured shoulder. He accepted that his criminal lawyers may have relied on that.[60]
[60]T81, L12-13
59 The plaintiff was next cross-examined about the period after the expiry of the limitation period against Kennedy Plumbing. He accepted that while in prison in 2016, his shoulder was popping out and required hospitalisation. It was put to him that once he got out of prison in 2016, he wanted to prosecute his claim. His response was “Well, I wanted my arm fixed again. I needed the - I needed surgery again.”[61]
[61]T81, L31 – T82, L1
60 Next he was cross-examined about attending Ms Krakic at Shine Lawyers in November 2016. He said he could not remember that conference but “I had a few with her”.[62] He was asked about a note made by Ms Krakic regarding pursuing a serious injury application when he saw her in November 2016. He conceded that they must have had a conversation about it. He accepted that he received a letter from her a few days later, which again gave him advice regarding time limits. Consistent with his earlier evidence, the plaintiff gave evidence that he could not really remember what she said word for word.[63] Mr Stanley put to the plaintiff that he would have accepted advice from Ms Krakic. He did not disagree.
[62]T82, L8-9
[63]T83, L13
61 The plaintiff was then cross-examined about his next contact with Shine Lawyers on 3 February 2017, which was again with Ms Krakic. Once more, the plaintiff gave evidence that he could not remember going back to Shine Lawyers on that occasion.[64] He accepted that once again, they may have discussed him seeing a barrister for the purposes of a serious injury application.
[64]T84, L25
62 Mr Stanley suggested to the plaintiff that it was hard to recall details about something that happened in 2010, to which he answered “Well, it’s 10 years ago”.[65] That was the segue to asking whether he was aware of Kennedy Plumbing using documents described as “yellows”. It was put to him that a “yellow” was a risk assessment, together with a control plan, and the plaintiff agreed with that. He was shown page 21 of exhibit D2 as an example of a “yellow”, and as an example of one which had been signed by him. Mr Stanley put it to him that there would have been a “yellow” in respect to the job he was doing with Kennedy Plumbing in February 2010. The plaintiff said that “[n]ot that I remember, because I – it’s (sic) wasn’t a government job, it was a smaller job”.[66]
[65]T86, L23
[66]T88, L31 – T89, T1
63 In respect to the incident with Kennedy Plumbing, it was put that he did not complete an incident report. His evidence was that he could not remember.[67]
[67]T90, L6
64 The records of the Williamstown Hospital were put to the plaintiff. He said that he was driven there by the boss, who was Mr Shannon Kennedy. In particular, the record was put to him where it was recorded at hospital that “‘[t]he presenting problem was fell of[f] ladder?’” The plaintiff gave evidence that he did not fall off a ladder.[68] Mr Stanley suggested the note was accurate and that in fact what he told the doctor was that he fell from a ladder. He said “I fell through the roof, the middle of the sheet. I landed square – I landed square in the middle of the garage underneath.”[69]
[68]T90, L27-29
[69]T91, L14-15
65 Finally, the plaintiff’s oral evidence was completed when he was re-examined by Mr Tobin. He was asked in re-examination to explain how his shoulder was after the first injury. The plaintiff said: “It went well for six or seven years until I had the next – the fall - the fall that set it off again.”[70] He was asked whether in the six or seven years between injuries he was restricted in what type of work he could do. He answered “yes and no”, but clarified that by confirming he was able to go back to construction work.[71] He also confirmed in re-examination that he had no difficulty with Kennedy Plumbing, which he described as a mixture of both light and heavy work.
[70]T96, L5-7
[71]T96, L8-12
66 The plaintiff was re-examined by Mr Tobin regarding attendances at Shine Lawyers. In particular, he was asked whether he could recall seeing any other solicitors apart from Shine Lawyers. He said he could not.[72]
[72]T97, L18
67 The plaintiff was asked about the work he was performing with Kennedy Plumbing on the day he was injured. He repeated his evidence that he fell through a roof and that he was taken by Mr Shannon Kennedy to the hospital after the incident. He was asked whether he had a discussion with Mr Kennedy regarding the injury and gave evidence in re-examination that “I’m pretty sure he said, ‘Mate, tell them I was on a ladder’”.[73] When asked why Mr Kennedy wanted him to tell them he was on a ladder, he said “Because … the safety – afterwards WorkCover and all that – that – now the job was”,[74] but otherwise he confirmed that he did not fall from a ladder.[75]
[73]T99, L22-23
[74]T99, L29-30
[75]T100, L5
68 Regarding his shoulder condition after the second injury, he said in re-examination that he had ongoing problems with the shoulder and that it just kept popping out.[76] He explained that the shoulder was bad and popped out at least half-a-dozen times.[77] He was asked what his hope would be after having surgery as recommended by Mr Bonomo after the second injury, and he said, “never going to be as good as the first surgery, and I thought I was, you know, I thought I’d be able to get back to … normal work”.[78]
[76]T100, L18
[77]T100, L27
[78]T101, L9-13
69 The plaintiff was re-examined about his attendance upon Shine Lawyers in September 2015. He was asked what his purpose was in going to see them and he answered “get my arm fixed again”.[79]
[79]T103, L1
70 The plaintiff said he had never heard of the term “common law damages” as far as he could recall before receiving the letter from Shine Lawyers of 19 October 2015.[80]
[80]T104, L4
71 I asked questions of him regarding when was it that he became aware of the six-year limitation period. He said that he did not know the actual six-year time length before seeing Shine Lawyers.[81] In response to further questions from me, he said that because he was in jail in the early part of 2016, he had to put his dealings with Shine Lawyers on hold.
[81]T107, L10
72 I have taken into account the plaintiff’s viva voce evidence and the evidence tendered on his behalf, but I will only refer to the evidence (including the defendants’ evidence) in these reasons to the extent necessary.
73 The tendered evidence of the plaintiff includes the affidavit from his current solicitor, Mr Glen Northway, sworn by Mr Northway on 4 September 2020, together with the exhibits.
74 Kennedy Plumbing had indicated that Mr Northway was required for cross-examination; however, at the conclusion of the plaintiff’s viva voce evidence, instead of requiring Mr Northway for cross-examination, Mr Tobin, on behalf of the plaintiff, was asked by Mr Stanley to make the following admission:
“I call that there be an admission that Mr Northway has not made contact or in any way sought to clarify the advice given to the plaintiff by the solicitors Mr Liam McGilchrist, Ms Irena Krakic or Mr James Richardson. The advice specific to the window of 15 September 2015 to 16 February 2016.”[82]
[82]T113, L6-11
75 In response to the call for the admission, Mr Tobin, on behalf of the plaintiff, responded as follows:
“The plaintiff admits that Mr Northway has not made contact with any of those solicitors to interpret their notes or in any of (sic) way in relation to this proceeding.”[83]
[83]T113, L12-14
76 On the basis of the admission made on behalf of the plaintiff, Mr Northway was not required to give viva voce evidence.
The evidence on behalf of Structural Systems
77 The evidence on behalf of Structural Systems is contained in the three affidavits of Mr Donohoe, solicitor, as contained in exhibit D1.
78 Mr Donohoe deposes to various attempts by him to obtain information regarding the first injury. There is no challenge to the evidence of Mr Donohoe or as to the matters that he deposes to.
79 Relevantly to the application, Mr Donohoe deposes to a range of documents that, from his enquiries and experience, would “usually exist in a proceeding of this nature”,[84] namely worksite documentation, incident reports, documents in respect to pre-injury instruction, training, directions and documents relating to site and occupational health and safety inductions. Mr Donohoe records numerous discussions he has had with the insurance manager of Structural Systems, being a Mr Cameron Dee, and the fact that no documents which would broadly fall within a class of “liability” documents, such as incident reports or documents in relation to systems of work or the like, are able to be located.
[84]Exhibit D1, page 6
80 Mr Donohoe also sets out in his affidavits, attempts to try and identify potential witnesses. In his affidavit sworn 3 September 2020, Mr Donohoe says:
“… Because of the effluxion of time there is a lack of documentation and witnesses now available, which results in the Defendant being unable to fairly investigate and respond to the allegations made by the Plaintiff or investigate any potential involvement of Probuild.
...
… I believe the Defendant is likely significantly prejudiced in its ability to achieve a fair trial.”[85]
[85]Exhibit D1, page 10
81 In his second affidavit sworn 9 September 2020, Mr Donohoe notes that subpoenaed WorkSafe records had in fact been brought to his attention via the affidavit of Mr Northway. He records further attempts to locate witnesses in light of what was contained within the WorkSafe material.
82 In his most recent affidavit of 29 September 2020, Mr Donohoe identifies a number of potential witnesses and the attempts to speak with them. He confirmed having spoken with Mr Paul Cockayne, formerly an employee of WorkSafe, who advised that he remembered attending the site to conduct an investigation following the Structural Systems incident. Mr Donohoe also notes that Mr Mark O’Brien, WorkSafe investigator, had refused to discuss the incident at this point in time. Other potential witnesses, Mr Paul Mazzocchi and Mr John Catterson, had informed Mr Donohoe that they had no memory of the circumstances of the plaintiff’s injury with Structural Systems. Mr Donohoe did, however, eventually manage to speak with Mr Jason Zealley, a former employee of Structural Systems. Mr Zealley advised that he remembered working at the site as a carpenter and later as a safety co-ordinator. He recalled the plaintiff and the circumstances of the alleged incident, as he had discussed the matter with WorkSafe investigators around the time of the alleged incident.[86]
[86]Exhibit D1, paragraph 11, page 77. I note that such an assertion is not determinative of the issue.
83 The evidence on behalf of Structural Systems can be summarised as follows: It is now unable to locate any liability documentation relevant to the plaintiff’s claimed injury beyond what had been provided (by the plaintiff) and the missing documentation that would have been relevant to the defence of the plaintiff’s claim. Structural Systems is now prejudiced in being unable to locate such documentation. Further, potential witnesses who had been identified were in some cases now deceased, and in other cases were unable to recall any specifics of the plaintiff’s incident. Although contact had been made with potential witnesses, Mr O’Brien, Mr Cockayne and Mr Zealley, such evidence, it was said, was limited.
The evidence of Kennedy Plumbing
84 The documentary evidence of Kennedy Plumbing is contained in exhibit D2, being its Court Book. That evidence is the evidence of Maree Kennedy, the quality manager of Kennedy Plumbing, as well as the affidavit of Ms Rizkalla, solicitor for Kennedy Plumbing.
Maree Kennedy; The Yellow; Mr Spence
85 In her affidavit, Maree Kennedy confirms being employed as the quality manager for Kennedy Plumbing for some twenty-three years. She says that she effectively oversees the quality assurance and compliance relating to their work. She notes requests for documentation after contact with the solicitors, Lander & Rogers, and confirms the documentation provided is as per the defendant’s affidavit of documents sworn 3 September 2020.
86 Ms Kennedy says that she could not find any relevant quotation for the job the plaintiff was performing in February 2016 and that a quotation would have included an overview of the works and identified whether scaffolding or scissor lifts were required. She further says that “the Defendant’s on site supervisor would have completed a risk assessment and control plan before undertaking any work on the site”[87] and that such a document is known as a “yellow”. The “yellow” would have identified that the relevant job involved working at heights and detailed the control measures put in place to reduce the risk of injury. She had undertaken an extensive search of the defendant’s storage areas, et cetera, and had been unable to locate any yellow and/or any safe work method statement applicable to the relevant job.[88] Ms Kennedy notes that she had been unable to locate an incident form relevant to the plaintiff’s alleged injury.
[87]Exhibit D2, affidavit of Maree Kennedy sworn 4 September 2020, paragraph 6, page 4
[88]Exhibit D2, page 4
87 Finally, insofar as her affidavit evidence, Ms Kennedy says that the plaintiff’s WorkCover Claim Form, signed by her on behalf of the employer, indicates that the incident was witnessed by Mr Scott Spence. Mr Spence ceased working for Kennedy Plumbing later on in 2010 and she has not spoken to him about the incident in recent years. She says it would have been her practice to have spoken to Mr Spence at the time the plaintiff lodged the Claim Form for her to better understand what happened, and that:
“I have no recollection of such a conversation but am reinforced in my belief that we likely did talk when I read my entry on the Employer Response form identifying my belief that the Plaintiff caused his injury by inappropriately and against his training standing on asbestos sheeting. The source for this assertion would have been either Scott or the Plaintiff.”[89]
[89]Exhibit D2, paragraph 10, page 5
88 Ms Kennedy was required by the plaintiff for cross-examination. In evidence-in-chief, she confirmed that the contents of her affidavit were true and correct. She then gave some further evidence about the “yellow”. Mr Stanley asked her whether a “yellow” should have been prepared for the job the plaintiff was undertaking in February 2016. She said: “Not necessarily prepared, but is issued for completion.”[90] She was asked whether she would have expected a safe work method statement in addition to the “yellow” for this particular job. She said:
“I would not have expected it necessarily, some – some tradespeople would complete just as part of the format. A safe work method statement is required, ah, for construction work. So the classification of construction would need to be considered, whether it was necessary to complete the safe work method statement for a domestic removal job.”[91]
[90]T118, L18-19
[91]T118, L29 – T119, L4
89 Ms Kennedy was then cross-examined by Mr Tobin. She confirmed that Mr Shannon Kennedy was her nephew and a director of Kennedy Plumbing. It was noted that she had completed the Employer Injury Claim Report[92] and that such document records that the injury was reported to Mr Kennedy. Mr Tobin asked her whether, before completing that document, she discussed what happened with Mr Kennedy, and she confirmed that was correct.[93] She further confirmed that from discussions with Mr Kennedy, she was aware that the plaintiff fell through asbestos sheeting and that Mr Kennedy had taken him to hospital.[94]
[92]PCB 182
[93]T120, L26-27
[94]T120, L28-31
90 Next, Ms Kennedy confirmed that insofar as what happened to the plaintiff, Mr Kennedy would be in a better position to say what happened, as he attended the site and established the job, and took the plaintiff to hospital. She confirmed that Mr Kennedy had informed her that the plaintiff had fallen through the asbestos sheeting. She gave evidence that she was not aware of any reason why Mr Kennedy had not sworn an affidavit as to what happened and that, as she understood it, there was no impediment to him doing that.
91 Ms Kennedy was also asked questions about a job, such as the one the plaintiff was performing when he was injured, and who would complete the risk assessment. She gave evidence that generally, it would be the removalists who would do the risk assessment.[95]
[95]T127, L28
92 In re-examination, Ms Kennedy explained why the process was that risk assessments were normally done by the site personnel. She said:
“… the site personnel are responsible ultimately for their own safety, as in any workplace. So the expectation is that the site personnel are fully involved in the development of safety documentation and if a safe work method statement was completed, involved in the development of the safe work method statement as well.”[96]
[96]T129, L13-19
93 Completing the evidence on behalf of Kennedy Plumbing is the affidavit of Ms Rizkalla. In that affidavit, she notes the limited statutory benefits paid by the claims’ agent. She notes the plaintiff resigned his employment in July 2010 from Kennedy Plumbing. She confirms that by Notice dated 21 December 2016, the insurer for Kennedy Plumbing accepted liability for the further surgery that Mr Bonomo performed on 7 March 2017.
94 Ms Rizkalla confirms her instructions that Kennedy Plumbing has been unable to locate the quotation or the “yellow”. She says if those documents were available, they would greatly assist the defendant in the defence of the damages proceeding and the absence of those documents is prejudicial to the defendant’s case. She said that, further, the factual question as to what instructions were or were not given to the plaintiff, will be crucial to the outcome of the case. Accordingly, she says, the prejudice to the defendant by its inability to now locate the relevant “yellow” “cannot be understated”.[97]
[97]Exhibit D2, page 25
95 Ms Rizkalla next notes that contact had been made on two occasions with Mr Spence, who was the man working with the plaintiff on the occasion of his injury with Kennedy Plumbing. She says that Mr Spence:
“… indicated on both occasions that whilst he recalls the plaintiff falling through the roof at a domestic premises, he does not recall many other pertinent details including what instructions were given by the defendant to perform the job, or what the structural integrity of the roof was, or where those premises were.”[98]
[98]Exhibit D2, paragraph 24, page 25
96 Finally, in respect to medical evidence, Ms Rizkalla notes the absence of a number of clinical files relating to the plaintiff.
The Plaintiff’s submissions
97 At my invitation, and prior to the matter coming on for hearing, the plaintiff provided a written outline of submissions, and I take that written outline into account, as well as the oral submissions.
98 The plaintiff submits that each defendant knew of the relevant injury-causing event and created a record at the time. Claims for statutory benefits were made and accepted as per the documentary evidence. In respect to the Structural Systems injury, there was a reporting to WorkSafe and contemporaneous documentation, including the Field Incident Report, which seemingly was prepared by Mr Cockayne and issued by the WorkSafe inspector, Mr O’Brien.[99]
[99]PCB 141-142
99 The plaintiff submits that the critical witnesses in the Structural Systems case are available; namely himself, Mr O’Brien, Mr Cockayne and Mr Zealley. The plaintiff submits that there are copious medical records available in respect to each injury.
100 The plaintiff submits that he did not know he had an injury that was serious until it became evident that the second surgery was not as successful as he had hoped. The main thrust of his submissions is that his intention or hope had always been to have his shoulder fixed and it was only when it became evident that his surgery had not been effective that he saw the need to pursue his common law rights, namely in approximately October 2017, and at that stage, he pursued his rights promptly. This was expanded in the oral submission by Mr Tobin, when he said:
“… the plaintiff has expressed his belief that such surgery was to get him back into employment and that was his hope and his desire, to have that surgery. So even when he goes to see Mr Bonomo in 2015, having been undertaking some heavy work before that in the sense that he’d been at Cedar Meats at the like but couldn’t go on, he went to Mr Bonomo. He didn’t go to his lawyers, he went to his doctor when his shoulder is giving him problems and his doctor said: ‘I want to do surgery’ and he proceeds down that path. We submit that the court should find that when he was advised and sought surgery from Mr Bonomo, his goal was to be fixed, it was not to have a common law claim and it was not in his mind a common law claim or impairment benefits.”[100]
[100]T172, L14-27
101 Next, In respect to the Kennedy Plumbing claim, the plaintiff submits that the eyewitness, Mr Shannon Kennedy, is available, as is the co-worker, Mr Spence, and again notes the medical material leading to the acceptance of the further surgery by the insurer for Kennedy Plumbing, after what the plaintiff submits was a protracted dispute.
102 In summary, in each application, he submits that there is sufficient documentation and sufficient witnesses still available such that the defendants in each proceeding are able to get a fair trial. The relevant test is whether the defendants are able to have a fair trial, not a perfect one. Mr Tobin relied upon the comments of Keogh J in WCB v Roman Catholic Trusts Corp for the Diocese of Sale (No 2)[101] that:
“A party is entitled to a fair trial, not a perfect one. The lapse of time, absence of documentary evidence, or inability to call witnesses unavailable because of death or incapacity, does not automatically result in a trial being unfair to the degree that a stay should be granted.”[102]
[101][2020] VSC 639 at paragraph [204]
[102]Footnote omitted
103 Pausing, Keogh J approved of what was said by the New South Wales Court of Appeal in Moubarak (by his tutor Coorey) v Holt,[103] where Bell P stated that:
“In the context of discussing the possibility or otherwise of a fair trial, it should be noted that a fair trial is not synonymous with a perfect trial … .”
[103](2019) 100 NSWLR 218 at paragraph [89]
104 In respect to the issue of the legal advice given to the plaintiff from September 2015 and onwards, his submissions on that point, both written and oral, were that he was not “consciously considering that” legal advice because he wanted to get his shoulder fixed.[104]
[104]T176, L26-27
105 It was submitted that the plaintiff’s focus, even when still in time, was getting himself shoulder surgery.[105] It was conceded that someone (and by that Mr Tobin could only sensibly mean a lawyer) could have, in a whole range of ways, protected the plaintiff from the expiry of the limitation period, but that the plaintiff is a man who is not sophisticated, he is looking for surgery and relying on his solicitors in relation to that, and that his primary consideration was getting treatment and getting back to work. This focus on getting treatment was why he contacted Shine Lawyers.[106]
[105]T177, L25
[106]T184, L10-11
106 Mr Tobin accepted that the legal advice the plaintiff received was correct but I should accept that in the mind of the plaintiff –
“… here’s a man whose definitely not sophisticated and definitely has a lot of other things happening in his life who is pursuing throughout the whole of this time, an endeavour to get treatment and get back to work. And there’s no one seems to challenge the fact that that’s what his aim was at that time.”[107]
(sic)
[107]T187, L10-15
107 Turning specifically to the subparagraphs of s23A, Mr Tobin conceded that which could not be denied, namely that there was a long period of delay in the claim against Structural Systems and a period of delay against Kennedy Plumbing. He accepted that prejudice which occurs within the six years from the date of the injury can be taken into account, and so it is the prejudice that accrued since the date of the cause of action accruing that is relevant. It was submitted once again that the reason why the delay in the plaintiff doing anything is the good outcome after the first surgery, and then the delay in having the second surgery, and understanding the outcome from that surgery. So it was accepted that the delay is great, but that the reasons for such delay are that he is looking for his treatment rather than focusing on being litigious.
108 Narrowing the submissions on behalf of the plaintiff, and leaving aside general prejudice, it was submitted that there was a significant amount of material relevant to each defendant to show that any specific prejudice is “minimal”.
109 In respect to Structural Systems, it was accepted that there is the general prejudice of the lengthy delay and some specific prejudice in the sense of missing documentation and witnesses who could not be located, or whose memory had failed but, in the words of Mr Tobin, there is so much material there still existing that Structural Systems can have a fair trial, and so prejudice, when it is looked at, is not great prejudice and not such to deny Structural Systems a fair trial.
110 Next, in relation to Kennedy Plumbing, Mr Tobin, in my view quite properly, made much of the fact that Mr Shannon Kennedy is a highly relevant witness, both at the common law stage, and also for the purposes of the application before me, and yet no material is put forward from Mr Kennedy. Ms Kennedy’s evidence was limited. She accepted that Mr Kennedy would be the best person within the company to say what happened. Accepting that the plaintiff bears the onus, Mr Tobin submitted that where Kennedy Plumbing had put material before the Court, but had chosen not to put any material from Mr Kennedy, then that is something I can take into account in assessing what is the real magnitude of any specific prejudice.
111 Finally, In respect to s23A(e), Mr Tobin repeated the earlier submission that the plaintiff’s priority had always been getting treatment, and so while he may not have acted promptly, he did act reasonably in the sense that he sought to have his condition treated, and it was only once it became clear to him that he had not had a good outcome from the second surgery that after realisation of the seriousness of the situation he then acted reasonably in pursuing his common law rights. In other words, it was submitted that it had not been unreasonable to wait until he knew the effects of the second accident.[108]
[108]T198
Submissions on behalf of Structural Systems
112 Mr Batten, on behalf of Structural Systems, urges the Court to reject the plaintiff’s application to extend time.
113 Firstly, Structural Systems relies on general prejudice, that is, the effluxion of time, and submits that in this case, it is inordinate.[109]
[109]T135, L25
114 Next, Structural Systems submits that there is actual specific prejudice in respect to witnesses’ memories and the absence of documentation, as set out in the defendant’s tendered evidence. The specific prejudice relates to witness memory, witness availability and lack of documentation.
115 Next, Structural Systems submits that more than seventeen years since an event must occasion actual prejudice in the context of memory. Mr Batten placed reliance on what was said by McHugh J in Brisbane South Regional Health Authority v Taylor.[110] In particular, Mr Batten relied on his Honour’s comments that:
“… First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even ‘cruel’, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. … .”[111]
[110](1996) 139 ALR 1
[111]At paragraph [6]
116 Of course it is relevant that the legislation considered in Brisbane South is quite different to s23A.[112] But as has been noted, the rationales to which McHugh J referred in Brisbane South underpinned and informed the legislative purpose of provisions which imposed limitation periods, and those giving the Court the power to extend time. The subject matter of those provisions is the lapse of time and the effect of delay on the quality of justice.[113]
[112]Tsiadis v Patterson (2001) 4 VR 114 (“Tsiadis”), per Buchanan JA at paragraph [31]
[113]WCB v Roman Catholic Trusts Corp for the Diocese of Sale (No 2) [2020] VSC 639, per Keogh J at paragraph [152]; Van Gerven v Amaca Pty Ltd [2012] VSC 131 per Beach J at paragraph [46]
117 Structural Systems submits, with some force, that what has been forgotten can rarely be shown. It is in that context that Structural Systems says there is specific prejudice to it.
118 Further, it was submitted that the plaintiff’s evidence as a whole was such that the Court should accept that the concept of common law rights was not unfamiliar to him before seeing solicitors in September 2015.[114] On the totality of the evidence, the Court should accept that he clearly had ongoing problems with his left shoulder after the first incident, and I should not accept his submission that it was only some time after the second surgery that he realised the extent of his problems.
[114]T141, L10
119 It was further submitted that the plaintiff did not act either promptly or reasonably once he found his way to Shine Lawyers in September 2015. The Court should not be satisfied that that is a satisfactory explanation for the delay.
The submissions of Kennedy Plumbing
120 Mr Stanley, on behalf of Kennedy Plumbing, commenced submissions by noting the principles as set out in Tsiadis. I accept that the approach I must take is as set out by Buchanan JA in Tsiadis, and for the avoidance of doubt as to how my task is to be approached, it is convenient to set out what his Honour said in Tsiadis as follows:
“The matters which the Court is required by s.23A to take into account cannot all be weighed against each other. For example, prejudice to the respondent in being unable to recover any compensation cannot be measured against prejudice to the appellant in conducting her case. Rather, the Court must synthesize a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the respondent bears the onus of persuading the Court that it is just and reasonable to extend the limitation period. I agree with Brooking, J. in Bell v. S.P.C. Ltd when he said:
‘The question posed by s23A is whether, having regard to all the circumstances of the case, including the circumstances mentioned in paras (a) to (f) of subs(3), it is just and reasonable to extend the period. This requires consideration of the conduct and position of both parties, including the effect of the outcome of the application on each of them. ... It is for the plaintiff to satisfy the Court that it is just and reasonable to extend the period.’”[115]
[115]Tsiadis (supra) at paragraph [33]
121 Mr Stanley submitted that the plaintiff, bearing a heavy onus, it had not been discharged on the facts of this case as against his client. The plaintiff had not provided a valid reason why he delayed the commencement of proceedings, having been advised by solicitors in September 2015 of the relevant limitation date against Kennedy Plumbing. Once given appropriate legal advice, the plaintiff did not act appropriately. Mr Stanley, in colourful but appropriate language, submitted that the plaintiff’s explanations are “a bit all over the shop”.[116] He submitted that the plaintiff was not a reliable witness, which I should note was also a submission made by Mr Batten. The plaintiff’s explanations were unreliable and he gave conflicting evidence about matters. It was submitted that the plaintiff’s evidence in re-examination where, for the first time, he said that Mr Shannon Kennedy told him to lie to the hospital about falling from a ladder, was beyond being simply unreliable, to a point where the plaintiff’s credit was impugned.
[116]T149, L31
122 Next, in circumstances where the plaintiff received appropriate legal advice at a stage when he was still “within time”, there needed to be a pretty good reason offered[117] why proceedings were not commenced within time, and that all we got were a-jumble. Mr Stanley urged me to accept that the plaintiff’s claimed explanation that the reason for the delay was a desire to have surgery, was a fiction,[118] and did not stand scrutiny when one looks at the contemporaneous file notes and letters from the solicitors. In all the circumstances, the plaintiff “sat on his rights”[119] and therefore there was no proper reason for the delay in commencing proceedings and for allowing the limitation period to expire.
[117]T155, L9
[118]T155, L27
[119]T157, L11
123 With respect to specific prejudice, Mr Stanley referred to Ms Kennedy’s evidence regarding “the yellow” and that in all likelihood a yellow would have been completed and now cannot be found and the yellow “would have carried the day”.[120] However, Mr Stanley accepted that his client could not positively say there was a yellow that had now been lost. Based on Ms Kennedy’s evidence, all that could be said was that she expected a yellow to be completed and that a search had not located one.
[120]T159, L20
124 In respect to the plaintiff’s submissions regarding Mr Shannon Kennedy, Mr Stanley submitted that any inference that could be drawn from the lack of evidence from him would veer into speculation, and as such, I must look to the evidence that is being relied on, and therefore his absence is of no consequence.[121] However, appropriately, Mr Stanley conceded that insofar as specific prejudice, Mr Kennedy was of course still available.
[121]T162, L2
125 Finally, Mr Stanley referred to gaps in the medical evidence caused by the inability to locate the files of some medical practitioners who had treated the plaintiff, and that was a cause of specific prejudice to Kennedy Plumbing in trying to unscramble the consequences of the second injury from the consequences of the first.
Analysis
126 I now turn to consider whether, having regard to all the circumstances in each application, including the matters set out in s23A of the Act, is it just and reasonable to extend the periods of limitation in one or the other of the applications.
127 The plaintiff bears the onus in each application to establish that it is just and reasonable to order the extension of the relevant limitation period applicable to each proceeding.
128 I have set out in detail the evidence in these applications. It was necessary to set the evidence out in detail because I must, of course, take into account all the circumstances of the case, and in order to synthesise all of the matters required to be taken into account by s23A(3).
129 The plaintiff’s evidence was vague in respect to a number of matters. He has a poor memory of events, consistent with the passage of time, but I am not convinced that there is any major credit issue in this case, having had the benefit of seeing him in the witness box. His vagueness as a witness does bring into focus one of the matters relied upon by the defendants, namely that what is forgotten cannot be recalled. Having said that, I accept the submission from his Counsel that he has a reasonably good memory of each of the incidents.
130 While the applications were run together, and there is overlap in some of the evidence, the prejudice, both general and specific, that each defendant must confront, is not the same.
131 Clearly, there is a much longer period of delay in the Structural Systems matter.
132 Further, when the plaintiff first attended Shine Lawyers in September 2015, he was still in time in which to commence a proceeding against Kennedy Plumbing.
The resolution of the Structural Systems application
133 The plaintiff claims to have suffered injury with Structural Systems on 12 February 2003. The limitation period in respect to that application expired on 12 February 2009. The common law proceeding was not commenced until 8 March 2019, although from the time of the lodgement of the serious injury application and the dispute about that application, the plaintiff was unable to commence the proceeding until he had satisfied the serious injury and statutory process (a similar comment can be made in respect to the Kennedy Plumbing application). Whether one takes the date of the lodgement of the serious injury application or the date of issue of the proceeding, the delay is considerable.
134 The plaintiff’s own memory of many events is vague and unreliable. The Structural Systems affidavit material makes it clear that a number of witnesses cannot be located, or do not have much relevant memory of the events of 12 February 2003. Also potential “liability” documents cannot be located. There is general and specific prejudice should the limitation period be extended.
135 Turning to consider all of the circumstances of the case, including s23A, paragraph (a) of the section requires the Court to take into account “the length of and reasons for the delay on the part of the plaintiff”. No one sought to make submissions regarding the serious injury and statutory process, but I do take into account the fact that when the plaintiff finally made the serious injury application on 20 November 2017, he could not commence a common law proceeding until the serious injury/statutory process had been completed. However, even if the relevant period of delay is “capped” to 20 November 2017, by then more than fourteen-and-a-half years have passed since the cause of action accrued. Of course by the time proceedings were actually commenced on 8 March 2019, more than sixteen years had passed. It is now closer to seventeen-and-a-half years.
136 Regardless, the plaintiff concedes that there has been a lengthy delay.
137 The main reason proffered for the delay is contained in the submission that after the injury with Structural Systems, he had surgery, made a good recovery and returned to work. He says that it was only after the second injury with Kennedy Plumbing, and when it became apparent to him that his shoulder had not been fixed after the second surgery, that he decided to do something about commencing a common law proceeding.
138 The objective evidence is consistent with a finding that the plaintiff, after the first surgery, did in fact make a good recovery. The evidence tends towards an inference that the plaintiff is not a man who was completely ignorant of the concept of suing a negligent employer, although I accept that before attending Shine Lawyers, he had not sought specific legal advice regarding a possible common law claim. I accept his explanation for not doing anything before seeing Shine Lawyers is that, in fact, he had a good outcome after the first surgery and did not see the need to do anything. Consistent with that conclusion is the medical opinion of Mr Simm dated 20 July 2004,[122] where, when reviewing the plaintiff on the part of the relevant claim’s agent, Mr Simm opined that he expected the plaintiff to:
“… make a good recovery from this operation and retraining or redirection into alternative employment is not appropriate … .
…
There may be some mild permanent impairment … .”
[122]PCB 164-165
139 I accept Mr Simm’s opinion and it corroborates the plaintiff’s own evidence about the result from the first surgery.
140 However, the waters become muddier when considering the fact that the plaintiff attended Shine Lawyers in October 2015 and was clearly given advice about various matters, including common law and relevant time limits. Again, his explanation for not doing anything at that stage is that he had hoped that once again his shoulder could be fixed and there would not be a need to do anything. That is an explanation which I do not accept as entirely accurate. The hope to again have a reasonable result from surgery I accept. But, I do not accept it to be a complete explanation for why he “sat on his hands” after October 2015. He made a conscious decision to put the pursuit of his potential common law rights “on hold”.[123]
[123]PCB 85, paragraph 16
141 One of the reasons he proffers for putting things “on hold” was several periods of incarceration, and I am unimpressed with that as an explanation. Leaving aside any judgement about having sufficient time to engage in conduct to justify a period of imprisonment, the fact he was imprisoned is, of itself, no reason that he could not have made contact with his lawyers. It is trite to note that prisoners have rights, including the right to make contact with the outside world. Further, the plaintiff had the assistance of his partner, Melanie, from whom we do not have an affidavit, and at the least, there is an evidentiary deficiency due to the lack of an affidavit from her and at worst an inference I could draw regarding the lack of an affidavit. I do not need to resolve that issue because the plaintiff accepts that Melanie may have or could have contacted the solicitors to advance things whilst he was in prison. The plaintiff himself could have contacted either Melanie or the solicitors to advance things. Further, he was released from prison from time to time in 2016/2017 and there was further contact with solicitors but, again, no action taken.
142 The plaintiff’s affidavit and oral evidence is entirely silent as to when it was that he was first told it was in fact possible to extend a limitation period. The correspondence from Shine Lawyers refers to limitation periods, but does not specifically refer to the ability to make application to extend the limitation period. The Shine Lawyers’ letter of 19 October 2015 advised the plaintiff that:
“… A claim for damages can only be pursued within six years of the date of injury. There are some special provisions however which extend this time limit by the period taken to process your WorkCover impairment claim.
Therefore, to respect your interests, an impairment claim or serious injury application must be served on or before 15 February 2016 in relation to your second accident. The period in which to bring a common law claim in respect of your fi[r]st accident expired on 11 February 2009.”[124]
[124]PCB 321
143 Next, Shine Lawyers wrote to the plaintiff on 23 November 2016. In that letter it was advised that:
“For injuries that occur in Victoria you generally only have six years from the date of injury to make a common law damages claim, after which time your rights expire … .
Whilst your right to bring a common law claim for damages has expired for both injuries, we will obtain advice from a Barrister with respect to the merits of the case and determine whether it is viable to pursue your claim … .”[125]
[125]PCB 332-333
144 It is difficult to know what advice the plaintiff was provided by Shine Lawyers in respect to the possibility to extend the limitation period against Structural Systems. It could be inferred that the suggestion of briefing a barrister in November 2016 could only have occurred after a discussion with the plaintiff about seeking counsel’s advice in respect to the merits of an application to extend time. Whatever the case, the plaintiff clearly saw no urgency in doing anything at that point in time. The only possible conclusion is that from the first contact with Shine Lawyers in October 2015, he knew the limitation period had expired against Structural Systems and by at least November 2016, he was aware that the limitation period had expired as against each of Structural Systems and Kennedy Plumbing, but that it was possible to make an application/s to extend the periods of limitation.
145 I can conclude that the plaintiff made a deliberate decision to not pursue an extension of time application. Even accepting that his “main goal” was a desire to have surgery and his shoulder fixed, based on the whole of the evidence, that does not fully explain the reasons why he continued to allow time and delay to accrue.
146 The short point is that there is no evidence that even with the hope or expectation of getting his shoulder fixed, he made a conscious decision that he would only pursue an extension of time application if and when it became clear to him that his shoulder had not been fixed. For a range of reasons, he made a deliberate decision from the time he first saw Shine Lawyers through until late 2017, to simply do nothing about trying to enforce or protect his common law rights, or to try and extend the periods of limitation.
147 I consider that the advice from Shine Lawyers as contained in the letters to the plaintiff, is not as comprehensive or as well expressed as it could have been. As an example, when Shine Lawyers first wrote to the plaintiff in October 2015, he was simply told in writing that the limitation period against Structural Systems had expired. A non-legally educated person reading that letter could well be expected to think that was the end of the matter. Equally, the file notes are sparse and the further correspondence of 23 November 2016 could have done more to set out what was required to seek an extension of the limitation period, and the pros and cons of any further delay. It must be said that nothing was done by Shine Lawyers before November 2017 to take steps on behalf of the plaintiff to “stop the limitation clock”.
148 It has been said in various authorities that people are entitled to rely upon the competence of their legal representatives, and that is a matter that can be taken into account in the synthesising of all the matters relevant to the application. In this case, however, the plaintiff does not suggest that there was any incorrect legal advice.[126]
[126]T202, L11-12
149 Therefore, while I accept that one of the reasons for the delay was the initial good result from the first surgery and a desire for the second surgery, and a “main goal” of again achieving a good result, I do not accept the evidence proves that to be a complete explanation for the delay. Part of the explanation is the simple fact that the plaintiff chose to do nothing from at least October 2015, or prioritised other matters in his life, knowing that he was out of time. The failure on his part to act on the advice given to him in October 2015 is a negative factor in the exercise of the discretion to extend the periods of limitation.
150 Next, turning to paragraph (b) of s23A(3), there is specific prejudice to Structural Systems in that witnesses (both liability and medical) cannot now be located, and other witnesses have limited memories of the events of February 2003. Balanced against that, there is a fairly comprehensive WorkSafe Investigation Report, and the WorkSafe investigators, Mr Cockayne and Mr O’Brien, are available, as is Structural Systems’ site safety representative, Mr Zealley. It is not a situation whereby Structural Systems can say that there is no documentary or lay evidence that it can access in the defence of the common law proceeding, bearing in mind the requirement for a fair and not perfect trial.
151 Next, paragraphs (c) and (d) do not appear relevant to the determination of this application.
152 Next, paragraph (e) of s23A(3) is relevant, namely the extent to which the plaintiff acted promptly and reasonably once he knew that he might have a claim for damages against Structural Systems. The matters I have discussed under paragraph (a) are relevant also to this section. Clearly, the plaintiff did not act promptly either before October 2015 or thereafter. He accepts that he did not act promptly, but submits that he acted reasonably, because again his intention was to have his shoulder fixed and it was only when that did not occur after the second surgery that he saw fit to do anything. For the reasons already set out, I do not fully accept that submission as a complete explanation for what occurred.
153 At the risk of repetition, I accept as one of the reasons why the plaintiff did nothing at an earlier stage was his “main goal” to have his shoulder fixed, but equally, in the face of what he concedes was appropriate legal advice, there was a conscious decision by him, or it was because he prioritised other events in his life, that prevented him from acting sooner.
154 Finally, subparagraph (f) directs an enquiry towards “the steps, if any, to obtain medical, legal or other expert advice and the nature of any such advice he may have received”. There is no suggestion the plaintiff did not take steps to obtain medical advice. I accept that the reason he went to see Shine Lawyers in October 2015 was because he was by then involved in a disputed statutory benefits process regarding acceptance of liability for the proposed second surgery.[127] However, having attended Shine Lawyers in September 2015 and provided with the letter of advice of 19 October 2015, and then knowing then that he was substantially out of time against Structural Systems, but still in time against Kennedy Plumbing, it is clear that the plaintiff chose not to seek follow-up legal advice so as to advance things at that point in time. Even when he got further advice from Shine Lawyers in November 2016, he still did not promptly follow up with the lawyers.
[127]Letter or Gallagher Bassett dated 21 August 2015, PCB 287
155 Synthesising all the matters required to be taken into account, including s23A(3), I have formed a view that it is not just and reasonable to extend the limitation period relevant to the Structural Systems proceeding. The delay is considerable. There is specific prejudice due to the loss of documents and inability to locate potential witnesses, or the fading of memories of witnesses, including the plaintiff’s own poor memory. While there is some documentary evidence and some relevant lay evidence still available (including Mr O’Brien and Mr Zealley), in my view, synthesising all the matters as required, including the further delay caused by the plaintiff doing nothing from the time he first saw Shine Lawyers in September 2015, until the lodging of the serious injury applications in November 2017, Structural Systems is sufficiently prejudiced in obtaining a fair trial such that, for the reasons set out, it is not just and reasonable to extend the period of limitation in light of such prejudice.
The resolution of the Kennedy Plumbing application
156 The first difference in the Kennedy Plumbing application is that the delay is much less, as the alleged date of injury is 6 February 2010. A major difference is that the plaintiff was clearly within time when he first attended Shine Lawyers.
157 When the plaintiff first attended Shine Lawyers in October 2015, it was made clear to him that there was a six-year limitation period and that the Kennedy Plumbing time limit was 15 February 2016. Equally, it was made clear to him that he could lodge an impairment claim or serious injury application which would have the effect of extending the time limit, and indeed he was advised that an impairment claim or serious injury application must be served on or before 15 February 2016.
158 The plaintiff accepts that the legal advice given to him was correct and he makes no complaint about such advice. Therefore, the only conclusion open to me is that the plaintiff was properly advised about the relevant limitation period and the need to do something before 15 February 2016 to prevent that period expiring, but he chose to do nothing.
159 As discussed earlier, his explanation for “doing nothing” was a desire to have his shoulder fixed. This was addressed in final submissions when Mr Tobin submitted:
“But his state of mind when he goes to – he’s able to put up with it and then he goes to Mr Bonomo who was the wonder man in 2004 to get treatment and he pursues that treatment. If this man was litigiously focused there would have been upon instructions being taken by anyone at this bar table or even on the other side, as to what we’re going to do with this man turned up in 2014, we’d all go bang, but this man turns up looking for his treatment because that’s what gets him into the solicitor’s office, ‘I can’t work, I want the treatment’ – and that’s his state of mind and he pursues that and once that fails … .”[128]
[128]T203, L31 – T204, L11
160 The difficulty with the above explanation and submission is that he may well not have been litigious, but when he “turned up” at Shine Lawyer’s offices he was told there was a time limit and he needed to do something. The only conclusion open on the evidence is that he deliberately chose to let the time limit expire. Therefore, the analysis of paragraphs (a) and (e) of s23A(3) as set out in the Structural Systems matter are apposite for the Kennedy Plumbing application. I will not repeat my conclusions other than to say I accept his “main goal” was to have his shoulder fixed but I conclude there were other reasons why he deliberately allowed the limitation period to expire.
161 But, that is not the end of the matter. Turning next to paragraph (b) of s23A(3), whilst there is general prejudice due to the delay, the extent of specific prejudice is not great.
162 I accept the evidence of Ms Kennedy regarding the “yellow”. That evidence, at its highest, is that Kennedy Plumbing may have completed a “yellow” in respect to the work the plaintiff was doing when he was injured with it, but that the “yellow” cannot now be located. However, I conclude that any specific prejudice from the fact that Kennedy Plumbing cannot now say whether or not a “yellow” was completed is not of much specific prejudice to Kennedy Plumbing. Firstly, the eyewitness, Mr Spence, is still available. Secondly, Mr Shannon Kennedy was at the scene of the incident within perhaps ten minutes of it occurring and he was able to take the plaintiff to hospital. Ms Kennedy’s evidence confirmed that Mr Kennedy had a discussion with the plaintiff about what had occurred, but also he had a discussion with her. One would expect that if Mr Kennedy had some problem with his memory or some problem recalling the event such as to cause specific prejudice, then that would have been either set out in Ms Kennedy’s evidence, or an affidavit would have been provided from Mr Kennedy. There is still sufficient “liability” evidence for a fair trial. Also, Kennedy Plumbing, via its WorkCover Agent, was able to consider the plaintiff’s injury and accept a request for surgery. Mr Stanley accepted that I could infer his client had sufficient medical material regarding the shoulder “to be happy that they were on the hook”, at least for the purposes of statutory benefits.[129]
[129]T164, L25-29
163 Turning finally to paragraph (f) of s23A(3), similar comments in the Structural Systems analysis can be made in the Kennedy Plumbing analysis. In particular, the plaintiff, in my opinion, did not take prompt steps to follow up the legal advice given to him in October 2015. In particular, he did not take the legal steps of lodging an impairment claim or serious injury application, so as to “stop the clock”. When he returned to the solicitors in November 2016, knowing that he was now out of time against Kennedy Plumbing, he did not follow up that suggestion or then do anything proactive to try and protect his interests.
164 To be clear, to some extent I accept his explanation to be focused on surgery in hoping for a good outcome. I accept it was his “main goal” to have the shoulder fixed. But, I do not accept that to be a complete explanation for a deliberate decision to allow a time limit to expire or to ignore the option of doing something to protect his interests. It would have been a relatively simple thing for him to lodge an impairment benefit application – a task which would require no more than to fill in a form and serve it on Kennedy Plumbing or its Agent – and to protect his rights. This would not have impacted his ability to continue to agitate for approval for the second surgery. The fact that his “main goal” was to get his shoulder fixed is one of the matters that must be synthesised. So must the decision to let the limitation period expire.
165 The fact that the plaintiff let the limitation period expire and then, for whatever reason, chose to let a further two years pass before taking any steps to make a serious injury application, is a highly relevant matter that I take into account and there is force in the submission that it works against an extension of the period of limitation. But even taking that into account, there is available the evidence of the plaintiff, Mr Spence and Mr Kennedy, who are the only real liability witnesses. There was no reporting of the incident to WorkSafe, notwithstanding the fact that it involved the destruction of asbestos sheeting. Kennedy Plumbing chose not to complete an incident report of its own. The plaintiff completed a WorkCover claim form within a matter of weeks and the employer was able to obtain sufficient information to complete its part of that form.
166 The defence of contributory negligence is still available. Whilst a “yellow” may have been created and therefore cannot now be found, that “yellow” would provide some comfort to the defendant in presenting its arguments for contributory negligence, but it is not essential to the presentation of those arguments. The plaintiff, Mr Kennedy and, to a lesser extent, Ms Kennedy, are all able to give evidence about Kennedy Plumbing’s practices and procedures, instruction, training and the like, without the “yellow”. The plaintiff and Mr Kennedy can give “eye-witness” accounts of the scene from shortly after the incident and discussions had about what had occurred. There is also the evidence of the co-worker, Mr Spence, on this critical issue as to what happened, accepting that his general memory of Kennedy Plumbing’ procedures and practices has faded. There is sufficient evidence for Kennedy Plumbing to get a fair trial.
167 Having synthesised all relevant matters and the relevant evidence, I conclude that, notwithstanding the conduct of the plaintiff in allowing the limitation period to expire, and the general and (limited) specific prejudice to Kennedy Plumbing, it is just and reasonable in all the circumstances to extend the period of limitation applicable to the causes of action upon which the plaintiff relies against Kennedy Plumbing to the date upon which the Writ was issued, namely 8 March 2019.
Conclusion
168 There will be an order extending the period of limitation to the causes of action set out in the plaintiff’s Statement of Claim against Kennedy Plumbing to 8 March 2019.
169 I will hear the parties on the question of the orders to be made in the Structural Systems proceeding. I will hear the parties on the question of costs in each proceeding.
170 Finally, for the avoidance of doubt, I wish to make it clear that the intellectual exercise I had engaged in has involved a synthesising of all relevant matters in each application to determine in each application it is just and reasonable to extend the periods of limitation. For want of a better phrase, “I have not engaged in splitting the baby” to determine these applications.
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