Tanong Chitasing v Lennock Phillip Pty Ltd

[2011] ACTSC 57

TANONG CHITASING v LENNOCK PHILLIP PTY LTD
[2011] ACTSC 57 (8 April 2011)

LIMITATION OF ACTIONS – action for damages for personal injury – work injury - explanation for delay – length of delay – whether actual prejudice to defendant – whether fair trial possible – balance of interests favours applicant – extension granted

Limitation Act 1985 (ACT), ss 16A, 36
Court Procedures Rules 2006 (ACT), r 39

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Sessions v Phengsiaroun [2008] ACTSC 132
Laws v Web Scaffolding Pty Ltd [2010] ACTCA 3

No.  SC  475 of 2010

Judge:             Master Harper
Supreme Court of the ACT

Date:              8 April 2011

IN THE SUPREME COURT OF THE     )
  )  No.  SC 475 of 2010
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:TANONG CHITASING

Plaintiff

AND:LENNOCK PHILLIP PTY LTD

Defendant

ORDER

Judge:  Master Harper
Date:  8 April 2011
Place:  Canberra

THE COURT ORDERS THAT:

1. the period within which an action on the plaintiff’s cause of action against the defendant may be brought be extended to a period ending on 21 April 2011.

1. the proceeding continue as if started by originating claim.

1. the plaintiff file and serve a statement of claim by 21 April 2011.

1. the plaintiff pay the costs of the application of GIO Insurance Ltd.

1. costs of the application are not recoverable until final orders are made in the action.

1. This is an application to extend the limitation period for a claim by an employee against an employer for damages for personal injury.

1. The application has been made prior to the commencement of an action for damages for personal injury. Counsel for the applicant provided me on the hearing of the application with a draft statement of claim. In that document, the plaintiff asserts that at 2:30 pm on 10 May 2006 he was injured in the course of his employment as a mechanic with the defendant. He was fitting a steel bullbar to a vehicle. This involved drilling holes in the chassis of the vehicle. The plaintiff says that the electric drill provided to him for that purpose was unsuitable. The drill jammed causing jarring and trauma to the plaintiff’s arms and shoulders.

1. A second count alleges that between 2006 and 19 January 2009, the plaintiff was required by his employer to carry out work which included lifting and repetitive movement of the arms and shoulders. The employer was aware of the plaintiff’s injuries of 10 May 2006 but failed to provide suitable light work. The work over the entire period aggravated the plaintiff’s earlier injuries.

1. Counsel for the plaintiff confirmed on the hearing of the application that the plaintiff does not make any claim in respect of the period of employment prior to 10 May 2006.

1. The respondent employer initially filed a notice of intention to respond through solicitors instructed by its worker’s compensation insurer on risk for the period from  1 January 2007, which I shall call QBE. A subsequent notice of intention to respond was filed by solicitors instructed by the insurer on risk for the period 31 December 2004 to 31 December 2006, GIO General Ltd. The application was opposed by counsel instructed on behalf of that insurer. The solicitors instructed by QBE did not oppose the application for extension, and did not participate in the hearing.

1. The application was supported by an affidavit by the plaintiff, who was orally cross-examined.

1. In his affidavit, the plaintiff said that he was born in Thailand in 1961. He qualified and worked as a mechanic in that country. He came to Australia in 1992. He was first employed by the defendant in 1995. He completed an apprenticeship, and worked for the respondent until his employment was terminated in January 2009. He said that his duties included fixing bullbars to vehicles, and that this involved drilling holes into the chassis of the vehicles. The drill would frequently jam jarring his arms and upper body. He injured himself in the course of this task on 10 May 2006. He reported the injury to an employee of the respondent identified as Narelle Cassar at 5:00 pm on the same day. He later completed a workers’ compensation claim form.

1. On 23 May 2006 he saw Dr David Peachey, general practitioner, at Kingston. He was referred for physiotherapy, which continued until the end of July 2006, the primary focus of the physiotherapy being his wrist pain. He said in his affidavit that he advised the physiotherapist in July 2006 that he was also experiencing significant shoulder pain. He did not have any time off work, but undertook lighter duties and avoided drilling. He saw Dr Peachey again in September 2006, and was referred for a shoulder ultrasound and later an MR arthrogram of the left shoulder in November 2006. GIO accepted his claim and paid all of his treatment expenses. He did not obtain any legal advice and was unaware that any such advice was needed.

1. His symptoms continued. He was referred, presumably by Dr Peachey, to Dr David Hughes, a sports physician, during 2007. Dr Hughes referred him to Dr Chris Roberts, orthopaedic surgeon. Dr Roberts, after preliminary investigations, diagnosed a SLAP tear in the left shoulder which he repaired surgically in April 2008. The plaintiff said that after the operation he continued with physiotherapy and a rehabilitation program, but the symptoms in his left shoulder continued, as did wrist problems from time to time. The plaintiff was sent by GIO to Dr Chris Oates, occupational physician, who saw him in late 2008 and again in September 2009. Dr Oates provided lengthy reports to GIO following both appointments.

1. After the operation, the plaintiff had about three months off work. He then returned on light duties. On 16 January 2009, he was told that the employer was no longer able to provide suitable light duties, and his employment was terminated. He has not worked since. He has looked unsuccessfully for lighter employment.

1. He says in his affidavit that he spoke to a friend in July 2009 who suggested that he should seek legal advice about his position. He saw a solicitor for some advice, and decided to speak to another solicitor. He saw his present solicitor for the first time on 20 July 2009, and received comprehensive advice about the availability of proceedings for damages at common law. The solicitor told him that he was already out of time but that it might be possible to obtain an extension of time to commence proceedings. The solicitor obtained a report from an engineer about the system of work, and advice from counsel. The present application was brought in July 2010.

1. Counsel for GIO did not cross-examine the plaintiff about this aspect of his evidence, nor did he submit that the lapse of time between July 2009 and July 2010 was significant to the determination of the application.

1. During that period the applicant’s lawyer was in correspondence with GIO, whose present solicitors participated in a conference about the matter in March 2010. The plaintiff was overseas during May and June 2010.

1. I am generally satisfied that the plaintiff has provided an adequate explanation for his delay in commencing proceedings.

1. In his oral evidence, the plaintiff corrected the statement in his affidavit that he advised the physiotherapist of his shoulder pain in July 2006. He said that this had been a mistake, and that he had first told the physiotherapist about it in June 2006.

1. This is consistent with the physiotherapy records. It is apparent that Dr Peachey made no record of any complaint of any shoulder injury or shoulder symptoms when he first saw the applicant on 23 May 2006. On 13 June 2006 the plaintiff was seen by another general practitioner within Dr Peachey’s practice, whose notes do not mention any complaint relating to the shoulder. The first mention in any contemporaneous records is in the physiotherapist’s notes of 23 June 2006. The applicant attended for physiotherapy initially on 23 May 2006 and again on 2 June, 6 June, 7 June, 13 June and 16 June 2006. The notes for those attendances do not mention the shoulder or shoulders. The first reference to the shoulder in the notes at Dr Peachey’s practice is dated 4 September 2006. The note records a history of pain in the left shoulder adding “seen by Dr Kellett last week who feels it is not work-related”.

1. There are no notes or reports from Dr Kellett in evidence. The history recorded by Dr Oates in his report of 2 September 2009 includes a history that Dr Peachey referred the plaintiff to Dr J Kellett, sports physician, who injected cortisone into the right wrist with benefit. The history continues that the plaintiff developed right shoulder pain over time and that Dr Kellett ordered an MR arthrogram of the left shoulder which showed a SLAP legion.

1. Dr Roberts mentions in his report that he first saw the plaintiff in September 2006 at Dr Kellett’s request. The plaintiff saw Dr Roberts in January 2008, and told him that he felt that he had injured his left shoulder at the time of injury to his right wrist while operating a drill. This suggests that the plaintiff had already formed the view by then that the left shoulder injury was caused in the incident of 10 May 2006, well before he had any knowledge that this might be important for the purposes of a claim for damages. Despite the reference to a doubt in Dr Kellett’s mind as to whether the shoulder damage was work-related, it has not been suggested to the plaintiff that he suffered any other injury away from the workplace to the shoulder between 10 May and 23 June 2006. Certainly GIO at all times up to the hearing of the present application seems to have been satisfied that the shoulder treatment stemmed from the injury of 10 May 2006.

1. The plaintiff in cross-examination initially denied any earlier wrist injuries. Counsel for GIO tendered a copy of a workers’ compensation claim form arising from an injury on 14 July 2003. QBE was the insurer at that time. The claim was for injury to both wrists, occasioned when the plaintiff was removing a bumper bar from a car, requiring the unscrewing of bolts which had seized. The plaintiff at that time saw Dr Leerdam, a general practitioner at Chifley, and was prescribed thermoskin braces for both wrists to be worn at work. Dr Leerdam referred the plaintiff for x-rays of both wrists. Reports of the    x-rays were not in evidence, and the contemporaneous records do not assist as to whether the plaintiff required any time off work because of that injury.

1. The plaintiff does not seem to have told any of the doctors about this earlier history. In particular, he told Dr Oates that he had had some minor soreness in the wrists previously but had required no treatment or time off work. His evidence in cross-examination was that he had forgotten about the 2003 incident when he saw the doctors after the 2006 injury. Being reminded of it, he recalled it and remembered wearing wrist braces. He said that he did not have any time off work at that time.

1. Counsel for GIO asked him why he had not gone back to Dr Leerdam after the 2006 injury. His response was that Dr Leerdam had earlier bulkbilled his patients but had introduced a charge to the patient. This prompted the plaintiff to find another doctor.

1. The plaintiff’s evidence in cross-examination about the onset of shoulder symptoms was a little unsatisfactory. He fell back on an inability to remember a number of times when asked about inconsistencies. I accept for the purposes of the application that he did not initially complain to Dr Peachey or to the physiotherapist of shoulder symptoms. He first complained about his shoulders, or at least the left shoulder, about six weeks after the accident. I am unable to decide on the limited evidence on the application whether the plaintiff will be able to establish at trial a causal link between his shoulder problems and the incident on 10 May 2006. I am certainly unable to exclude such a causal link on the evidence. GIO is not taken by surprise by the allegation of shoulder injury, having known about it since soon after the first complaints and having paid for the surgery and other shoulder treatment from an early time.

1. The limitation period for the plaintiff’s action is set by section 16A of the Limitation Act 1985 (ACT) at three years. Section 36 of the Act gives the court a discretion to extend the limitation period if satisfied that it is just and reasonable to do so. The court is required to take into account all the circumstances of the case, including the length of and reasons for the delay, the extent of any prejudice to the defendant, the extent to which the plaintiff acted promptly and reasonably once he knew that he might be entitled to claim damages, and the steps taken by the plaintiff to obtain medical, legal or other expert advice.

1. The leading authority in relation to applications to extend a limitation period in a personal injury action is Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. For this court, Higgins CJ summarised the principles in Sessions v Phengsiaroun [2008] ACTSC 132. The principles were considered more recently by the Court of Appeal (Higgins CJ, Refshauge and North JJ) in Laws v Web Scaffolding Pty Ltd [2010] ACTCA 3.

1. Toohey and Gummow JJ said in Brisbane South at 547:

The discretion conferred by the subsection is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant.

1. In the same case, McHugh J said at 553 that a limitation period:

...represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it.

1. His Honour went on to say at 554:

...when an applicant seeks an extension of time to commence an action after a  limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.

1. The delay in the present case is a little over a year. I infer that the plaintiff’s solicitors informed GIO well within the year of their instructions to advise as to the bringing of an application for damages under the general law. The application was made some fourteen months after the expiry of the limitation period.

1. The circumstances are very different to those that prevailed in Brisbane South, where the cause of action had arisen some twenty years earlier, and the plaintiff wished to bring an action for damages against a hospital authority for failure by a surgeon to warn her of the possible dangers of obstetric surgery. Her case relied on evidence of a conversation she had had with the surgeon, who was no longer employed by the authority and could not be readily located.

1. Having said that, I acknowledge that memories will fade over a very much shorter period of time, perhaps illustrated in the present case by the plaintiff’s failure to recall his wrist injuries three years before the present cause of action arose.

1. The respondent adduced no evidence on the present application. The respondent has accordingly not attempted to satisfy any evidentiary onus in relation to actual prejudice. I acknowledge the potential for prejudice which always exists after a delay, particular in relation to the fading of memory. Both the respondent and GIO have been aware of the facts of the incident from the beginning. They have been fully appraised of the medical situation. They have had the opportunity for independent medical examinations and have had reports from the treating doctors and other health professionals. I am satisfied that in all of the circumstances a fair trial of an action by the applicant against the respondent remains possible.

1. In those circumstances, it seems to me that the balance of the interests of the parties favours a grant of the extension sought.

1. The plaintiff in this case has applied for an extension of time before commencing proceedings by originating claim. The latter is the more usual course in this jurisdiction, though no criticism attaches to the plaintiff or his advisers for adopting the course they have. In the circumstances, rather than put the plaintiff to the expense and additional work of commencing an action by separate proceedings, I propose to make an order under rule 39 of the Court Procedures Rules 2006 (ACT) that the proceeding continue as if started by originating claim, and to make consequential directions.

1. The plaintiff comes to the court seeking an indulgence and must bear the costs of the application. Having regard to the disparity in financial position between the plaintiff, an unemployed mechanic on workers’ compensation benefits, and the defendant, a company with the benefit of insurance, I propose to order that those costs not be recoverable until final orders are made in the action.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date:                 8 April 2011

Counsel for the plaintiff:  Mr W L Sharwood
Solicitors for the plaintiff:  Sneddon Hall & Gallop
Solicitors for the defendant:  Dibbs Barker
Counsel for GIO General Ltd:  Mr R L Crowe SC
Solicitors for GIO General Ltd:  Sparke Helmore
Date of hearing:  18 March 2011

Date of judgment:  8 April 2011