Undy v State of Victoria (Ruling)
[2018] VCC 600
•26 March 2018 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-17-01116
| LEANNE JUNE UNDY | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 2, 5, and 6 February 2018 | |
DATE OF RULING: | 26 March 2018 (Revised) | |
CASE MAY BE CITED AS: | Undy v State of Victoria (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 600 | |
RULING
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Subject: LIMITATION OF ACTIONS
Catchwords: Limitation of actions – personal injury – application to bring claim for common law damages out of time – substantial delay in bringing claim – prejudice – fair trial
Legislation Cited: Limitation of Actions Act 1958 (Vic), s23A; Occupational Health and Safety Act 1995; Occupational Health and Safety (Manual Handling) Regulations 1991, r13, 14 and 15; Civil Procedure Act 2010
Cases Cited:Lovejoy v Carp (1999) VSC 223; Marceta v Efandis [2016] VSC 265; Sparkes v Hylemit Pty Ltd [2016] VSC 453; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; Welsh v Adecco Industrial Pty Ltd (ACN 004 366 634) & Ors [2017] VSC 44; Tsiadis v Patterson (2001) 4 VR 114; Gordon v Norwegian Capricorn Line (Australia) Pty Limited [2007] VSC 517; Holcombe v Hunt & Anor [2017] VSC 666; Ford Motor Company (Aust) Ltd v Kulic (1988) VR 152; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Morrison & Anor v Judd (unreported) NSWCA, 40504 of 95, 10 October 1995; RepcoCorporation v Scardamaglia [1996] 1 VR 7
Ruling: Application allowed.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Seccull with Mr A Dimsey | Saines Lucas |
| For the Defendant | Mr W R Middleton QC with Ms F Spencer | IDP Lawyers |
HER HONOUR:
Introduction
1 The plaintiff, Leanne June Undy, an integration aid, was involved in an incident at work on 29 April 2004 (“the said date”)[1] whilst wheeling a student in a wheelchair through a doorway in C Block at Kurunjang Secondary College (“the College”).
[1]Incorrectly described as 30 April in serious injury affidavit - Transcript (“T”) 10
2 It is alleged that when she reached out to prevent the door from closing on the student, the plaintiff suffered injury, particularly to her left shoulder (“the incident”). Further, the plaintiff asserts that she now suffers injury to her right upper limb as a result of the overuse thereof.
3 It is alleged that the defendant was negligent and was in breach of its duty to the plaintiff pursuant to the Occupational Health and Safety Act; namely the Manual Handling Regulations 1991, and in particular, Regulations 13, 14 and 15.
4 Whilst serious injury was conceded in August 2016,[2] the plaintiff’s claim was statute barred in April 2010. Therefore, before her case proceeds to trial, the plaintiff must satisfy the Court that it should grant her leave to bring her claim out of time pursuant to s23A of the Limitation of Actions Act 1958 (“the Act”).
[2]Letter from the defendant’s solicitors to the plaintiff’s solicitors dated 31 August 2016
5 In this case, the relevant delay is from 29 April 2004 to 6 July 2016, when the plaintiff’s serious injury application was lodged – a period of over twelve years.[3] A delay of that order has been described as inordinate and sufficient to infer substantial prejudice.[4]
[3]T143
[4]Lovejoy v Carp [1999] VSC 223 per O’Brien J at paragraph [63]
6 The plaintiff first became aware the limitation period had expired when she attended her solicitor, Nick Lyons at Saines Lucas, on 11 October 2011.[5]
[5]T25
7 This application is brought by Originating Motion issued on 30 January 2018 seeking, pursuant to s23A of the Act, the plaintiff be granted an extension of time to bring proceedings for recovery of damages in respect of personal injuries sustained by her on the said date.
Evidence on this application
8 The plaintiff swore an affidavit in support of her serious injury application on 1 July 2016 (“the serious injury affidavit”). Further, she swore an affidavit in support of this application on 30 January 2018.
9 The plaintiff’s solicitor, Mr Lyons, swore an affidavit on 30 January 2018.
10 The defendant’s solicitor, Ms Black, swore affidavits on 1 and 4 February 2018.
11 The defendant also relied on an Affidavit of Documents sworn by Alan Dennis, business manager of the College, on 22 January 2018, and a Supplementary Affidavit of Documents sworn on 1 February 2018.
12 All deponents were cross examined.
Chronology
·30 April 2004 – Incident date
·31 May 2004 – WorkCover Claim Form
·23 August 2005 – Left shoulder arthroscopy
·18 January 2006 – Open left shoulder surgery
·October 2007 – Medical Panel (left shoulder)
·February 2008 – Left knee injury
·June 2008 – First left knee operation
·December 2009 – Second left knee operation
·30 June 2010 – Max’s car accident
·30 April 2010 – Limitation period expires
·22 April 2011 – Max’s death
·May 2011 – Third left knee operation
·19 May 2011 – Plaintiff first sees solicitors
·18 October 2011 – Plaintiff aware limitation period expired
·September 2012 – Fourth left knee operation
·27 January 2015 – Section 98C claim lodged
·July 2015 – Fall
·20 July 2015 – Section 98C granted
·November 2015 – Heart condition
·18 March 2016 – Counsel briefed to draw serious injury Paperwork
·6 July 2016 –Defendant’s solicitors advised of serious injury application
·13 July 2016 – IDP instructed by WorkCover
·31 August 2016 – Defendant’s solicitors advise serious injury granted but Statute of Limitations relied upon
·21 March 2017 – Writ issued
·30 January 2018 – Originating motion issued.
The Act
13 Section 23A(2) of the Act empowers a court to extend the limitation period within which an action for personal injury may be brought. The court must be satisfied that it is “just and reasonable to do so”.
14 In determining whether it is so satisfied, s23A(3) requires that the court “shall have regard to all the circumstances of the case including”:
(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;[6]
(e) the extent to which the plaintiff acted promptly and reasonably once she 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 she may have received.”
[6]6 July 2016, the date on which the plaintiff’s solicitors advised of the plaintiff’s intention to bring common law proceedings
Legal principles
15 Limitation periods are enacted as a matter of public policy and founded on the proposition that delay produces a general deterioration in the quality of justice.[7]
[7]per Beach JA in Marceta v Efandis (2016) VSC 265; per J Forrest J in Sparkes v Hylemit (2016) VSC 453 at paragraph [333]
16 In Brisbane South Regional Health Authority v Taylor,[8] (“Brisbane South”), McHugh J described the reasons for the limitation regime:
“The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists … The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
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. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. … .”
[8](1996) 186 CLR at paragraphs [551]-[552]
17 The onus is on the plaintiff to satisfy the Court that it is “just and reasonable” to extend the period. As McHugh J stated in Brisbane South:[9]
“A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced." But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, 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.”
[9](supra) at paragraph [553]
18 In Prince Alfred College Inc v ADC,[10] the High Court identified two fundamental propositions established by its decision in Brisbane South which guide the exercise of the Court’s discretion on an application for an extension of time:
“First, an applicant for an extension of time must prove the facts which enliven the discretion to grant the extension and also show good reason for exercising the discretion in his or her favour. An extension of time is not a presumptive entitlement which arises upon satisfaction of the pre-conditions that enliven the discretion. The onus of persuasion is upon the applicant for an extension of time.
The exercise of the discretion to grant an extension of time must take account of the reasons for the limitation regime, and the discretionary nature of the decision to be made must be respected when conducting appellate review of a primary judge’s decision.
Secondly, the purpose of the legislative conferral of the discretion is to ensure a fair trial on the merits of the case. The loss of evidence which will tend against the prospects of a fair trial will usually be a fatal deficit in an argument that good reason has been shown to exercise the discretion to grant an extension.”[11]
(citations omitted)
[10][2016] 258 CLR 134 at paragraphs [99]-[100]
[11]Brisbane South Health Authority v Taylor (supra) at paragraphs [544]; [549]-[550]; [556]
19 In Brisbane South, McHugh J also said:
“the justice of a plaintiff’s claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of the delay, is unable fairly to defend itself or is otherwise prejudiced.
… The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or the real possibility of significant prejudice. … .”[12]
[12](Supra) at paragraph [555]
20 In Welsh v Adecco Industrial Pty Ltd (ACN 004 366 634) & Ors,[13] T Forrest J conveniently set out the applicable legal principles in extension of time applications.
[13][2017] VSC 44
“The principles that apply to this application are uncontroversial:
(a) The plaintiff bears the onus of establishing that it is just and reasonable to order that the limitation period be extended.[14]
(b) Should the defendants establish by evidence that they may suffer prejudice by granting the plaintiff an extension of time, then it is for the plaintiff to demonstrate that that evidence does not demonstrate prejudice.
(c) The considerations referred to in s 23A(3)(a) and (b) of the Act are not to be weighed against each other; the Court must endeavour to ‘synthesise’ the competing considerations ‘in arriving at a conclusion that account of them all’.
(d) The relevant delay is the delay ‘between the accrual of the cause of action and the making of the application for an extension of time’. (For present purposes, I accept this to be July 2016.)
(e)Relevant prejudice to a defendant is that which actually occurred by reason of the delay, as well as the prima facie prejudice suffered by a defendant who, if not for the application for extension, would have the benefit of the limitation period.
(f)The longer the delay in commencing proceedings, the more likely it is that there will be prejudice from lost witnesses or fading recollections.”
[14]per Toohey and Gummow in Brisbane South Heath Authority v Taylor (supra) at paragraph [547]
21 In Tsiadis v Patterson, [15] Buchanan JA, with whom Ormiston and Callaway JJA, agreed, said:
“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.”
[15][2001] VSCA 138 at paragraph [33]
22 In consideration of the question of prejudice and whether there can be fair trial, in Gordon v Norwegian Capricorn Line (Australia) Pty Limited (“Gordon”),[16] J Forrest J stated:
“… in determining whether there is significant prejudice, what is to be considered is whether there can be a fair trial. A fair trial does not mean an ideal trial, but one that is ‘acceptably fair’. … .”
[16][2007] VSC 517 at paragraph [79]
23 Counsel for the defendant advised there were three main points on which the defendant relied in the present application.
24 It was submitted the issue of causation was extremely significant. The second issue was in respect of any contemporaneous documentation, specifically about the incident and the third related to the matters set out in sub-paragraph (e) and (f) of s23A of the Act which it was submitted was a “matter of major significance”.[17]
[17]T158
(a) the length of and reasons for the delay on the part of the Plaintiff
25 The plaintiff first saw a solicitor, Mr Lyons at Saines Lucas (“her solicitors”), on 19 May 2011 following Max’s death. At that time, she first advised Mr Lyons about her left shoulder injuries, although only briefly. She had never seen a lawyer in relation to that injury, or any other work injuries prior to that date.[18]
[18]T23
26 The plaintiff was then, however, still dealing with the trauma of the death of her de facto partner, Max Scales (“Max”), which took her some time to get over. It was not until she saw Mr Lyons on 18 October that year, when the plaintiff was able to provide fuller and more proper instructions in relation to the work injuries, and obtained advice about her potential rights to bring a claim for common law damages for the left shoulder injuries.
27 Prior thereto, the plaintiff had not really considered making a claim, in part, because she was concerned it might impact on her employment security at the College. At this attendance, Mr Lyons explained the claim should not impact on her employment.
28 The plaintiff’s affidavits were silent as to when she was first aware the limitation period had expired. However, in cross-examination, it emerged she was told first by way of her solicitor’s letter of 18 July 2011 about the six-year period; and secondly, on 18 October 2011, by Mr Lyons that a common law claim in respect of her left shoulder was statute barred.
29 Initially in cross-examination, the plaintiff could not recall if she received advice from Mr Lyons about the limitation period when she saw him on 18 October 2011. She had no idea what the discussion entailed:
“I think he just told me about um damages that you could claim. Um he asked a lot of questions about time off work um what I could do now what I couldn’t but I – he might’ve mentioned about the limitations I’m … no can’t remember that no.”[19]
[19]T24
30 The plaintiff probably received a letter from her solicitors following that attendance setting out what her common law position might be and in particular the limitation period.[20]
[20]T24
31 The plaintiff then said she thought, on that attendance, she was told by Mr Lyons her claim was out of time. “… I had some knowledge that – that it was out of time but--- … .”[21]
[21]T25
32 The plaintiff then instructed her solicitors in relation to a number of compensation claims for weekly payments, medical expenses and impairment benefit claims, and following that, the serious injury application for her left shoulder.
33 The plaintiff followed her solicitor’s advice in relation to what steps she should do, and provided instructions, as requested, in order to pursue her claims for compensation.
34 When asked what she did to prosecute her claim between the 18 October 2011 attendance and 6 July 2016, the date her solicitors requested a serious injury certificate, the plaintiff said she followed all the directions from her solicitors. When asked why it took nearly five years for her to issue proceedings, she said:
“Because as I said I had a lot of things sort of going on and I did – I was in contact with – um – Saines Lucas regularly so I just followed their instructions.”[22]
[22]T25
She did not know and:
“You would have to ask them.”[23]
[23]T26
35 The plaintiff did everything that was suggested to her, or advised to do by her solicitors.[24] She never wrote to them or rang them to ask what was happening with her case.[25]
[24]T47
[25]T48
36 The plaintiff agreed it would have been right that when she saw Mr Lyons in October 2011, and he told her she was out of time, at that time she realised she had a serious injury, because he was talking about her common law rights.[26]
[26]T27
37 Further, in cross examination, the plaintiff first mentioned she had been told by Max that she should consider legal proceedings in relation to her left shoulder injury.[27]
[27]T19
38 Max made the comment after his accident in 2010, and the plaintiff did not do anything.[28] It was probably a couple of months after his operation – probably October or November, that he suggested she do something about it.[29] She could not honestly recall the exact time of this conversation.[30]
[28]T22
[29]T46
[30]T47
39 Following the shoulder surgery, the plaintiff was hoping her shoulder would get better. She was a bit concerned about “going for legal, like, proceedings” because she was worried about her job and her “security, sort of, at work too”. She thought about legal proceedings at that point. She knew she could take legal proceedings only because Max told her she should do something about it.[31]
[31]T20
40 There were however a lot of things happening during that year that needed the plaintiff’s attention “before pursuing something like this”.[32] She agreed she knew she could seek legal advice about her rights and she chose not to because other things were more important to her.[33]
[32]T20
[33]T21
41 The plaintiff did not know she could seek legal advice to see what her legal rights would be until later dates after 2011. The plaintiff agreed she knew she could go and get advice about her rights and chose not to, but all she could say was she had other things that were more pressing at the time.[34]
[34]T21
42 The plaintiff explained her initial delay in seeking legal advice was because she was not aware of the seriousness of her left shoulder condition and there were also other significant health and personal issues in her life.
(i) The plaintiff’s lack of knowledge of the seriousness of her left shoulder condition
43 The plaintiff deposed that she did not come to the view her left shoulder injury had a serious impact on her life until some years after the incident injury.[35]
[35]January 2018 affidavit
44 Following the left shoulder arthroscopic surgery in August 2005, and more significant shoulder surgery in January 2006[36] and then a related right elbow injury in June 2006, the plaintiff returned to work in about October 2006, although on modified duties. She had not formed a view, at that stage, that her left shoulder injury had serious consequences for her and she still thought she would recover from that injury.
[36]T19 – an open procedure where an incision was made
45 The plaintiff’s treating surgeon, Mr Miller, helped her with a home help application in late 2005, but did not give her any advice about other avenues she might pursue with compensation for her left shoulder.[37]
[37]T28
46 The plaintiff had a Medical Panel hearing in October 2007 concerning her capacity to return to work because of her left shoulder. She may then have had union assistance, but she did not have a lawyer. The first time she saw a lawyer was after her father passed away in 2008.[38]
[38]T26
47 The plaintiff then had a separate incident at work in February 2008, when she injured her left knee. This led to a change of events, including time off work, seeing Dr Jacobs and his referral of her to Mr Miller, whom she saw on numerous occasions over the next four or more years in relation to her left knee.
48 The plaintiff had left knee surgery performed by Mr Miller on 2 June 2008, 7 December 2009, 2 May 2011 and 10 September 2012. During that time, her left shoulder injury took a back seat and she was focusing more on her left knee injury, the numerous surgeries, and trying to get back to work.
49 In cross-examination, the plaintiff initially agreed she had had nearly two years off work after her shoulder injury.[39] She was seeing her doctor and having physiotherapy at Melton, firstly with Amanda Schultz, and then “Cameron” and a Mr Richards.[40]
[39]T17
[40]T18
50 The plaintiff is not a doctor; she could not decide whether her left shoulder condition was serious or not until she finished all medical treatment.[41]
[41]T17
51 Following the incident, the plaintiff never got back to normal duties and she was always on modified duties, right up until she stopped work, because of her heart and other medical issues.[42]
[42]T21
52 The plaintiff was doing modified duties because of both her knee and her shoulder. Her shoulder was symptomatic through all that time, but she then “also needed to make a living and was on [her] own”.[43]
[43]T23
53 In cross-examination, the plaintiff then explained that she did not go off work totally for the two years after the incident. Immediately thereafter, she had two days off. She had not made a WorkCover claim at that point because she was going to the doctor and the physiotherapist, who told her that her shoulder condition might have just been swelling or something similar. She was having physiotherapy, but still going to work.[44]
[44]T35
54 The plaintiff was then told by her doctor that her left shoulder was not going to be fixed with physiotherapy, so he suggested she put in a WorkCover claim, which she did. She had a “mini operation”. She took long service leave from November to December to attend physiotherapy.[45]
[45]T35
55 After the mini operation, the plaintiff thought she had six or seven weeks off work on WorkCover payments and she then went back to work until the next operation. After that, she again went back. She was not off totally for two years, she went back to work.[46]
[46]T36
(ii) Other issues
56 The plaintiff deposed she also had a range of other health problems, including a fall in July 2015, a heart condition which caused her to take time off work in about November 2015, and also anxiety and depression, for which she sought medical treatment. These conditions, in addition to other health problems, also occupied a considerable deal of her time in trying to treat them, get back to work and try and deal with her life.
57 In the period after the incident, the plaintiff also had a series of life incidents which were time-consuming and took her focus off her left shoulder injury. These were as follows:
·Her father’s ill health from 2004 to 2008, during which she was his principal carer. She was also required to care for her elderly mother. Her father died in September 2008.
·In 2006, the plaintiff had an operation on an ovarian cyst which resulted in a bowel perforation. She was hospitalised for ten days and had three further periods in hospital for hernia repairs related to the initial problem.
·From 2005 onwards, Max had serious heart problems requiring repeat hospitalisations and surgery. In 2010, he had a major car accident and was hospitalised for six weeks. Thereafter, he had ongoing cardiac and related health problems.
58 On 22 April 2011, Max died of a heart attack. That caused the plaintiff a great deal of distress at the time, and in addition to dealing with her left knee injuries, again led her to believe her left shoulder injury was of a lesser consequence then. After Max’s death, the plaintiff was involved in a nasty dispute concerning his estate with his children.
59 Counsel for the defendant submitted the plaintiff knew about her capacity and it was a “feeble” excuse that there were other matters going on in her life that took precedence over the desire to pursue and prosecute her left shoulder injury, which was the subject of significant surgery.[47]
[47]T152
60 In short, the plaintiff knew the seriousness of her condition as was apparent in her serious injury application at a very early time.
61 In that affidavit, the plaintiff deposed she had had left shoulder surgery in 2005 and 2006 and had ongoing pain and restriction since that time. In particular, she deposed she never got back to normal unrestricted duties after the arthroscopy, she often felt embarrassed that the shoulder injury limited her ability to perform all usual tasks of an integration aid and she felt like a geriatric because of the limitations caused by her shoulder and knee injuries. Further, her shoulder injury affected many of her outside interests and activities, including dancing, indoor cricket and gardening.
62 It was also submitted the plaintiff’s history of serious ongoing consequences including pain and restriction on work activities and function deposed to was consistent with the history provided by the plaintiff to examining medical practitioners such as Dr Baker.[48]
[48]20 August 2008
63 Despite that, the plaintiff waited until 19 May 2011 to obtain legal advice. It was submitted, leaving it for some seven years before doing so was unreasonable in the circumstances, notwithstanding the plaintiff’s other health and personal issues.[49]
[49]See Holcombe v Hunt & Anor [2017] VSC 666
64 Counsel for the defendant submitted that whilst ignorance of legal rights of its own may be a relevant consideration when determining whether to exercise discretion pursuant to s23A, ignorance of the law alone is not sufficient to enable a court to exercise the power granted.[50]
[50]T159; per Kaye J in Ford Motor Company (Aust) Ltd v Kulic (1988) VR 152 at 156
65 Counsel for the plaintiff submitted the plaintiff is an inexperienced and unsophisticated litigant who first had any contact with a lawyer in the context of her father’s death in 2008.
66 Whilst the plaintiff had undergone two surgical procedures on her shoulder, counsel for the plaintiff submitted any knowledge on her part of the seriousness of her shoulder condition was otherwise contradicted by what was happening at the time. She had gone back to work, she was continuing work and it was in that context she was dealing with other problems. It was submitted the plaintiff could not discern and disentangle the effects of her shoulder injury from other physical injuries and more general health issues.[51]
[51]T207
67 It was submitted the delay lay from the time of the incident to her first consulting Saines on 19 May 2011 principally seeking advice in relation to the death of her late partner, Max could be explained by the series of personal health problems and health problems affecting family members deposed to by the plaintiff.
68 When the plaintiff sought legal advice for the first time on 18 October 2011, she was already outside the limitation period.
69 In the plaintiff’s submission, it was reasonable for her to rely on the expertise and guidance of her solicitors in taking all necessary steps thereafter to prepare her claim.
(b) The extent to which, having regard to the delay, there is, or is likely to be, prejudice to the Defendant
70 Counsel for the defendant submitted the defendant’s ability to meet the plaintiff’s case has been significantly impacted by the substantial delay in excess of twelve years, and that the determinative factor in this application should be prejudice.[52]
[52]per McHugh J in Brisbane South (supra)
71 It was almost fourteen years since the incident and there is also specific prejudice by reason of the substantial time lapse and it greatly affects the capacity and the ability of the defendant to investigate the claim and call evidence about the circumstances.
72 The relevant documents included, critically, given the allegation of breach of manual handling regulations, risk assessments from the relevant period had been lost or destroyed. Witnesses who may have been able to give evidence concerning the incident circumstances and or the plaintiff’s injury, risk assessments, direction or training in relation to safe methods for pushing a wheelchair through a doorway and policies in relation thereto cannot be identified or located and in at least one case, the central witness’s memory of the events is almost completely faded. It was submitted it was, accordingly, no longer possible to test the plaintiff’s recollection and account of events by reference to contemporaneous documents or instructions from her supervisors and return to work co-ordinators.
73 There are significant issues in regard to witnesses’ memory, as Ms Black deposed from her conversations with them, and with the existence of relevant documentation such as would preclude the defendant from having and conducting a fair trial, which it was submitted was clearly one of the key indicators.[53]
[53]T147
74 Mr Dennis had identified forty or so documents as having been destroyed. All of the available documents are dated no later than 4 June 2007.[54]
[54]T144
75 The defendant has been unable to answer many of the plaintiff’s interrogatories. The documents that can no longer be located include, critically, risk assessments from the relevant period.
76 Counsel for the defendant submitted that if the plaintiff had done something about the incident at the time she was advised to seek legal advice by Max, the documents which Mr Dennis says have been the subject of the seven-year destruction policy, could have been kept and retained.[55]
[55]T152
77 Further, the memory of a central witness, Jan Barrett, the school principal at that time, who witnessed the plaintiff’s WorkCover claim and certificates in the post-incident period, and who completed the employer claim report, has almost completely faded.
78 It was also submitted that it is apparent the plaintiff also struggles to recall matters from almost fourteen years ago such as Jan Barrett was the principal not the business manager,[56] the written report she deposed to was her Claim Form[57] and the plaintiff could not remember when she developed right elbow symptoms.[58]
[56]In the Employer Claim Report Jan Barrett was in fact described as Business Manager
[57]T13
[58]T150
79 The plaintiff has no idea where Brandon lives[59] and she would have been able to identify the other student who let go of the door but for the effluxion of time.[60]
[59]T9
[60]T11-12
80 Counsel for the defendant submitted, having regard to the effect that the substantial elapse of time has had, with documents being lost or destroyed and witnesses being unable to be located or identified or their memories fading, the prospect of the defendant endeavouring to meet the plaintiff’s case or what she now recalls to be the case is unjust.
81 Witnesses such as the College occupational health and safety officer, who may have been able to give evidence concerning the incident circumstances and or the plaintiff’s injury, risk assessments, direction or training in relation to pushing a wheelchair through a doorway, and policies/procedures cannot be identified or located.
82 It was submitted it was, accordingly, no longer possible to test the plaintiff’s recollection and account of events by reference to contemporaneous documents or instructions from those witnesses. Nor was it possible for the defendant to prosecute its case on contributory negligence by reference to contemporaneous documents or instructions or evidence from the plaintiff’s supervisors.
83 Counsel for the plaintiff submitted there are a number of witnesses, Ms Cardillo in particular, who are available to give evidence as to both liability and causation.
84 Further, it was submitted the general nature of the description of documents which are said to have been destroyed does not assist the Court in determining whether such documents would have been relevant, and if so, to what extent to the issues in dispute.
85 Specifically, there is no evidence by which the Court could be satisfied that there were in existence at any relevant time any risk assessments, OH&S safety inspections, training records, audits, checklists, inspection records, meeting records, policies and emails relevant to the activity of transporting children in wheelchairs safely throughout the College premises.
86 The defendant, by its Answers to Interrogatories 7 to 10, is deposed to having no knowledge as to whether:
(a) The plaintiff received training prior to the incident in relation to traversing the doorways with wheelchair-bound students;
(b) The defendant had any system with respect to traversing the doorway with wheelchair-bound students;
(c) The defendant had any system with respect to holding the door open;
(d) The defendant had undertaken any risk assessment with respect to traversing the doorway with wheelchairs.
87 The defendant has not put before the Court any evidence at any time, such training policies or procedures were in existence. It was submitted if the Court is not satisfied that there were relevant documents which have been destroyed or that any such documents were of only limited relevance, then the alleged prejudice should not be regarded as specific prejudice relevant to the exercise of its discretion.
88 Mr Lyons deposed that the employer has always been aware of the injury, since they were informed of it both on the day of the incident, verbally and in writing less than two weeks later.
89 The incident is recorded in a sick bay note dated 10 May 2004 by a person who attended the plaintiff in the sick bay. A WorkCover claim was lodged by the plaintiff in respect of those injuries on 31 May 2004, a month after the incident. That claim was accepted.
90 In the ensuing years, the defendant’s WorkCover insurer paid a range of benefits to the plaintiff in respect of her left shoulder injuries including, but not limited to, weekly payments of compensation, medical expenses and an impairment benefit, including the cost of two surgical procedures.
91 The defendant and its representatives have always had access to all documents in relation to the injury including, but not limited to, those referred to in paragraph 90 above, in addition to a large number of medical reports, rehabilitation reports and medical certificates, together with instructions from the insurance agent.
92 After having prepared the plaintiff’s serious injury application and common law damages proceeding, Mr Lyons also formed the view that the plaintiff’s claim is strong in terms of liability, that view having been formed by the plaintiff’s instructions initially and confirmed by, but not limited, to a view at the defendant’s premises in 2017, and obtaining two reports from an expert, Michael Lawrance, who confirmed those views.
The available evidence
The incident – the Plaintiff’s evidence
93 In her serious injury affidavit, the plaintiff deposed that on the said date, she was pushing a student, Braydon, in his wheelchair through a doorway leading to a classroom in C Block.[61] Another student was holding open the door, and all of a sudden the student let go of the door and it swung back. In order to protect Braydon from getting hit by the door, the plaintiff reached out quickly with her left arm to hold the door open and, as a result, she believed she strained her left shoulder (“the incident”).
[61]T177; sick bay report notes C3 doorway
94 The plaintiff thinks Braydon’s surname is Hullet. He was, and is, suffering from cerebral palsy but is able to speak. It is possible for her to communicate with him. He is alive, and she believes he lives in Melton.[62]
[62]T6
95 The plaintiff last saw Braydon about four or five years ago for coffee. They caught up a little bit when he left the College. She did not talk to him about the case. She could not remember if the matter was in Mr Lyon’s hands by that time. She then said she had no idea where Braydon presently lives, having shifted out from the family home.[63]
[63]T9
96 As at the said date, the plaintiff was only responsible for one student, Braydon.[64] She could not remember the name of the student holding the door open, but she probably would have remembered it and been able to find it out at the time.[65]
[64]T12
[65]T11
97 The plaintiff could recall Louisa Cardillo, who was then the integration teacher-coordinator, as at the said date. The plaintiff was last saw Ms Cardillo when she attended the plaintiff’s 60th birthday party in November last year. They did not then discuss the incident. The plaintiff thinks Ms Cardillo, who is retired, probably lived in Moonee Ponds.[66]
[66]T10
98 Sophie Bykersma was the nurse at the College on the said date and the plaintiff thought she still works there.[67]
[67]T7
99 The plaintiff could not honestly remember, at the said date, whether there was a dedicated occupational health and safety person at the College. She could not remember speaking to such a person, nor being introduced by anyone at the College to such a person.[68]
[68]T7
100 When it was suggested in cross-examination there was an occupational health and safety officer at the time, the plaintiff was just not sure and did not know whether there was one or not.[69] She could not remember.[70]
[69]T8
[70]T9
Available witnesses
101 Danielle Nicole Black, solicitor from IDP Lawyers (“IDP”), swore an affidavit on 1 February 2018. Ms Black confirmed the timing of the various matters set out in the chronology and IDP’s involvement in this matter.
102 In July 2016, shortly after receiving instructions from Worksafe to act on behalf of the named respondent, Ms Black sought instructions from the College about the plaintiff’s employment and the particulars of negligence alleged in the draft Statement of Claim, and requested copies of any relevant documents. She also sought a copy of the claim held by the defendant’s claims agent, CGU Workers Compensation (Vic) Ltd (“CGU”).
103 On or about 21 July 2016, Ms Black received the claim file from CGU. Her review thereof revealed the following matters:
(a)Claim for Compensation completed by the plaintiff on 31 May 2004, citing an injury to the upper back which occurred on 27 April 2004. The claim was accepted and weekly payments of compensation were made between 31 August 2005 and 17 August 2007;
(b)various medical and like services were paid on the claim until on or about 18 March 2010, including shoulder surgery on 23 August 2005 and 18 January 2006, and right tennis elbow surgery on 8 June 2006.
104 Following an examination by Mr Shannon on or about 19 May 2015, there was then a gap of over six years before a payment of VIP Home Services made on the claim between 15 December 2016 and 21 December 2017.
105 Ms Black confirmed the acceptance in July 2015 of the plaintiff’s s98C claim for injuries to the left shoulder and right elbow.
106 On or about 30 August 2016, Ms Black was advised by Mr Dennis that the only documents that could be located were the sick bay entry, the workers’ and employers’ claim, letters from CGU, a letter from Dr Miller dated 10 January 2007, various offers of suitable employment and a statement of service dated 31 March 2016.
107 On 31 August 2016, Ms Black wrote to the solicitors for the plaintiff, consenting to the plaintiff bringing proceedings for pain and suffering damages in relation to the injuries suffered whilst working at the College and granting a serious injury certificate. In that letter, reports of Dr Davidson, Mr Moran and Dr Baker, various return to work plans and offers of suitable employment, the sick bay entry WorkCover claim form, statement of service and various certificates of capacity were enclosed. Also enclosed was a draft Defence dated 26 October 2016, with paragraph 16 therein stating:
“Further, or alternatively, the plaintiff is barred pursuant to the provisions of the Limitation of Actions Act 1958 (Vic). As a result the plaintiff isn’t able to maintain these proceedings against the defendant.”
108 Ms Black deposed that the defendant’s ability to meet the plaintiff’s case had been significantly impacted by the delay over twelve years, between the incident date and the date when WorkSafe received notice of the plaintiff’s serious injury application.
109 Apart from general prejudice caused to the defendant due to the effects of the effluxion of time on memory, and the quality of justice, Ms Black submitted that the defendant has also been specifically prejudiced in its Defence of the plaintiff’s claim in the proceeding.
110 With respect to allegations of negligence and breach of the manual handling regulation, subsequent to the commencement of this proceeding by the plaintiff on 21 March 2017, Ms Black had made further enquiries of the College with respect to the availability of witnesses and documents.
111 Ms Black had been advised by Mr Dennis and Sophie Bykersma, the first aid officer at the College, that:
(a)apart from the documents that were provided to Ms Black in August 2016, no further documentation relevant to the proceeding could be located;
(b)documents which were in existence at around the time of the incident but which have now been destroyed include, but are not limited to, risk assessments, occupational health and safety inspections, training records, audits, check lists, inspection records, meeting records, policies and emails;
(c)the students directly involved in the incident, the one in wheelchair and the one allegedly holding the door, suffered from disabilities and lack the capacity to give evidence;
(d)The principal during the relevant period, Jan Barrett, who witnessed the plaintiff’s WorkCover Claim Form, completed the employer claim report and witnessed a large number of the plaintiff’s certificates from 2004, has since retired;
(e)the integration coordinator at the relevant time, Louisa Cardillo, has also retired and cannot be located;[71]
(f)in the period following the incident (the precise date of which is unclear), the IT system at the College was changed and it was no longer possible to locate emails from the relevant period, 2004-2005;
(g)the Occupational Health and Safety manager and officers during the relevant time are unable to be identified or located; and
(h)they are unable to identify any further or other potentially relevant witnesses due to the effluxion of time and lack of any contemporaneous documentation.
[71]Has now been located
112 On about 29 January 2018, Ms Black spoke to Ms Barrett, who now resides in Queensland. She told Ms Black she is now aged seventy and had retired from the College in about 2006. Further, she remembered the plaintiff had put in a WorkCover claim and had undergone surgery. However, she could not recall anything else about the relevant period or the circumstances of the plaintiff’s injuries, and had no documents from that time.
113 Ms Black deposed that another issue in the proceeding is the question of causation, and in particular, whether the claimed injuries to the plaintiff’s left shoulder-arm were caused by the incident and or post-incident work.[72]
[72]Allegations in relation to post incident work were withdrawn during the hearing
114 The inability to locate Ms Cardillo, the Occupational Health and Safety manager, Occupational Health and Safety officers and Ms Barrett’s inability to recall matters relevant to the plaintiff’s alleged injury or its circumstances, due to the effluxion of time, also significantly impedes the defendant’s ability to conduct its defence of the proceeding on the question of causation.
115 In addition, Ms Black had been advised that Dr Christine Le, who treated the plaintiff in 2004, has deleted all of her records prior to 2012 and, as a result, has no record of the plaintiff. Further, Ms Black has been unable to contact Station Spinal and Sports Physiotherapy in Melton, whom she believes were the first practitioners the plaintiff attended for treatment following the incident. The former contact telephone number is not operational. Ms Black has also been advised by the plaintiff’s solicitors they do not have any records of this clinic.
116 Due to the paucity of documents which have been able to be located, the inability to locate potentially relevant witnesses and the lack of memory of relevant witnesses, only general instructions were able to be provided to IDP with respect to the allegations of negligence in the plaintiff’s Statement of Claim and with respect to the issue of contributory negligence. Further, after making all due and proper enquiries, Mr Dennis was not able to answer numerous interrogatories of the plaintiff relevant to the issue of liability.
117 Ms Black swore a further affidavit on 4 February 2018. Since swearing her earlier affidavit, she had located Ms Cardillo and spoken to her on the phone on 2 February 2018. Ms Cardillo confirmed she was the integration coordinator at the College during the relevant period and last worked there about three years ago.
118 Ms Cardillo advised she remembered the plaintiff and vaguely remembered the incident, but stated the plaintiff had had a number of injuries and she could not be specific about this one or provide details. In particular, she was not able to recall what part of the plaintiff’s body was injured in the incident.
119 Ms Cardillo could not confirm if integration teacher meetings were held during 2004 around the time of the incident. She recalled that in one or more meetings, discussions included pushing wheelchairs, but she could not recall, due to the effluxion of time, in what year or years those meetings were held. Given the effluxion of time, Ms Cardillo could not recall anything from the relevant period re the College’s occupational health and safety policies.
120 On 2 February 2018, Ms Black met with Mr Dennis at the College. He then confirmed the IT system was changed in or around August 2010, and confirmed once again that anything prior to that date was inaccessible.
121 At that time, Mr Dennis was able to locate the plaintiff’s personnel file, which Ms Black perused, and located the documents which she considered relevant to this matter. These documents, referred to in the supplementary affidavit, were titled “Annual Review School Services Officer” dated 16 December 1999 and also 12 December 2000, and “School Services Officer Performance and Development” dated 19 November 2003. This was the first time Ms Black had seen those documents and had caused them to be served on the plaintiff.
122 On 1 February 2018, Ms Black asked a junior lawyer at IDP to assist her in locating Cameron Ivchenko from the Melton Clinic. After performing Google searches, she was able to confirm that he now works at Springs Medical Centre in Daylesford. Ms Black asked the junior lawyer to call that medical centre and attempt to speak with Mr Ivchenko. The junior lawyer later advised that she was able to speak to him, and he advised that the Melton Clinic had closed down and he did not hold any records from that time.
123 On 4 February 2018, Ms Black conducted internet searches to locate the plaintiff’s physiotherapists, Amanda Schultz and Justin Richards, and general practitioner, Dr Mathew Hargreaves. The searches revealed Ms Schultz now works at Windy Hill Sports and Spinal Physiotherapy Clinic. Her biography states that she worked at Melton Physiotherapy between 2005 and 2008. The website stated the clinic was closed that day and therefore Ms Black had been unable to ascertain whether Ms Schultz had any recollection of the plaintiff or any records from the relevant period, and she was not able to locate Justin Richards.
124 It appeared from internet searches that Dr Hargreaves now works at the Belmont Bulk Billing Clinic. Ms Black rang that clinic to ascertain if this was the case. It was the same Dr Hargreaves that worked at Westcare Medical Centre; however, the nurse who answered the phone advised Dr Hargreaves was not working that day and she did not know where he worked prior. She advised Ms Black to call back the next day during usual business hours and speak to the practice manager.
125 Cross-examination focussed largely on Ms Black’s attempts to contact various witnesses since July 2016 when her firm was first engaged.[73] At his request, counsel for the plaintiff was provided with a copy of all relevant documentation from Ms Black’s file.[74]
[73]At this stage, there was a suggestion the plaintiff was relying on sub paragraph (c) of s23A; however, there were no submissions made by counsel for the plaintiff in this regard and he indicated sub-paragraph (c) was not relied upon; T192
[74]T94
126 Ms Black explained that a letter was sent to Dr Hargreaves on 29 July 2016, but Ms Black was not aware of it until the day before she gave evidence.[75] Cross-examination then focussed on Ms Black’s requests for instructions from the College and also the Department.[76]
[75]T96
[76]T99
127 Ms Black confirmed her phone conversation with Ms Barrett on 29 January 2018 and a conversation with Mr Dennis about the procedure that had been adopted moving wheelchair bound students and Sophie Bykersma’s involvement in it.[77] She also confirmed her conversation with Dr Le[78] and Mr Ivchenko.[79]
[77]T126
[78]T128
[79]T129
128 Ms Black explained how Mr Dennis came to swear a Supplementary Affidavit of Documents after further documents were located.[80] She also confirmed her enquiries and the results thereof in relation to Ms Schultz and Dr Hargreaves,[81] also with Windy Hill Physiotherapy regarding Ms Schultz.[82]
[80]T129
[81]T130
[82]T131
Discovered documents
129 In his first Affidavit of Documents sworn on 22 January 2018, Mr Dennis listed the following documents that were available under Part 1 to the First Schedule, namely: a list of payments, certificates of capacity - variously dated; sick bay entry dated 10 May 2004; Worker’s Injury Claim Form dated 31 May 2004 and Employer’s Claim report dated 31 May 2004.
130 There were also a number of documents relating to the plaintiff’s return to work program, a statement of services dated 31 August 2016 and photographs of C Block taken at the worksite view on 6 November 2017.
131 In his Supplementary Affidavit of Documents sworn on 1 February 2018, Mr Dennis also included the Annual Review of School Services Officer dated 16 December 1999 and 12 December 2000, School Services Officer Performance and Development dated 19 November 2003, and a report of Alastair Flett of 4 June 2004.
132 In that affidavit, Mr Dennis also noted a number of categories of documents that had been destroyed due to the effluxion of time, namely:
·Annual risk assessments conducted by the College’s Occupational Health and Safety officer, which were enforced as at 2004
·Safety inspections, which were conducted by the College’s Occupational Health and Safety officer in the years 2004-2005
·Records of training sessions conducted at the College on a yearly basis by the Occupational Health and Safety officer in the years 2003-2005
·Audits of the College grounds conducted by the College’s Occupational Health and Safety officer in the years 2004-2005
·Checklist completed by the College’s Occupational Health and Safety officer in the years 2004-2005
·Inspection records completed by the College’s Occupational Health and Safety officer in the years 2004-2005
·Minutes of Occupational Health and Safety meetings in the years 2004-2005
·Minutes of integration aide meetings held in the years 2004-2005
·Emails to staff in relation to Occupational Health and Safety matters sent in the years 2004-2005
·Occupational Health and Safety policies which were in force as at 2004
·Attendance sheets - variously dated.
133 There were also emails to staff in regards to occupational health and safety matters sent in 2004 to 2005, which are no longer accessible due to a change in IT systems at the College in or around August 2014.
134 Mr Dennis confirmed in cross-examination that he is responsible for the finances, facilities, general running of the office, and chairs the Occupational Health and Safety Committee.[83]
[83]T132
135 Mr Dennis explained the College followed Department regulations as far as destruction of documents, namely that documents such as principals’ diaries, College Council minutes, student enrolments, et cetera, cannot be destroyed in any shape or form; they must be retained for life. All other documents can be destroyed after seven years.[84]
[84]T133
136 Mr Dennis described the documents listed in paragraph 133 above as falling within the category which are destroyed within seven years. Personnel files fall within the category of those that must be retained for life.
137 Mr Dennis could say there was a change in IT systems because he checked on eduPay and there was a major upgrade from the word CASES to CASE21 and the data conversion on that date, August 2010.[85]
[85]T134
138 Mr Dennis confirmed that he had conducted an extensive review of the available documents, following a request having been made. He used a Smartbox operation, a software program which lists what documents are stored in which box and detail their location.[86] Documents seven years or older have been destroyed because of space.[87]
[86]T135
[87]T135
139 To compile his first Affidavit of Documents, Mr Dennis’ search was extensive and he also enquired about the staff members who had been at the College much longer than he had.
140 Mr Dennis provided a supplementary affidavit as he had not been earlier asked for the particular documents that he added to this affidavit. Once he was asked by the defendant’s solicitor to provide these documents, he then had a search for, and made enquiries about, these documents.[88]
[88]T135
141 Mr Dennis was satisfied, as a consequence of both affidavits and his double searches and enquiries, that all documents and matters relevant to the proceeding have been provided.[89]
[89]T137
142 Although he was not employed at the College on the said date, Mr Dennis was aware, talking with the first aid officer of the College, Sophie Bykersma, who was employed at that particular time, that there was a procedure in place with staff, if they were entering in or out of doorways, were to always for assistance for the door to be held open.[90]
[90]T137
143 Mr Dennis was not aware of any documentation in relation to that task. He was not aware of any documents that existed at the time of the incident about the transportation of students with disabilities by wheelchairs in and around the College.[91]
[91]T138
144 Mr Dennis has been unable to discover any risk assessments that were done, documents in relation to occupational health and safety inspections, occupational health and safety training, occupational health and safety audits, occupational health and safety checklists, occupational health and safety inspection records, or any emails relating to any of those issues existing by way of a documentary form in relation to that issue at that time.[92]
[92]T138
145 In re-examination, Mr Dennis explained he was not able to say whether there were any of these documents in existence in April 2004, because they would have been destroyed under the destruction policy.[93]
[93]T139
Causation
146 In addition to the difficulties facing the defendant if required to defend the plaintiff’s allegations of negligence and breach of statutory duty, counsel for the defendant submitted there are also significant issues of causation and quantum in the case which the defendant is now prejudiced in investigating.
147 These issues include what injury was sustained by the plaintiff on the said date and how her alleged left shoulder and right elbow conditions developed and their potential causes.
148 The plaintiff maintains she initially injured her left shoulder, that she reported that injury to the College and that she received treatment for the left shoulder from the physiotherapists at Melton.
149 The contemporaneous records that exist (the notes and letters of the physiotherapist, the WorkCover Certificates of Capacity, the sick bay record and the WorkCover Claim Form) all record an upper back – fibromyalgia – and contain no reference to a left shoulder injury occurring as a result of the incident.[94]
[94]T150
150 Counsel for the defendant submitted, at the very least, the plaintiff’s evidence was unreliable. When confronted with the reference to the upper back in various documents, the plaintiff embraced the upper back, as well as her shoulder as being injured in the incident.[95]
[95]T169
151 It was submitted the defendant is prejudiced by the unavailability of the contemporaneous records of the plaintiff’s treating physiotherapists, being the first practitioner she attended after the incident, and Dr Le, the treating rheumatologist, and the unavailability of witnesses and other documents from the relevant time.
152 On examination in August 2014, Dr Le reported that she thought the plaintiff’s shoulder was normal and there were no problems with her right elbow. Physiotherapist, Cameron Ivchenko, noted on 1 December 2004, that the plaintiff had been overdoing it at the gym. When he saw her again on 4 April 2005, he noted the plaintiff’s elbow had been sore since Christmas when she banged it in a car door.[96]
[96]T155
153 Whilst there were short reports from these practitioners, it was submitted it would be so much more effective if the defendant was able to call those witnesses and they had the benefit of their clinical notes.[97]
[97]T156
154 The first reference in Dr Hargraves’ notes to a left shoulder complaint was on 16 December 2004.[98] He then noted “had left shoulder taped for immobilisation and physiotherapy”. It was submitted this note was consistent with the presentation on 1 December 2014 to Cameron Ivchenko.[99]
[98]T156
[99]T157
155 Counsel for the plaintiff submitted the defendant’s argument as to causation can be dealt with. There is contemporaneous evidence as to the plaintiff’s complaints and the nature of treatment given in a number of available reports and the authors thereof are available to give evidence. Further, Mr Dooley was able to form a view on causation on that material, albeit unhelpful to the plaintiff’s case.[100]
[100]T109
156 The plaintiff was cross-examined as to her complaints and the nature of her treatment following the incident.
157 The plaintiff saw Dr Jacobs on 12 May 2004 at West Care in Melton.[101] He then referred her to Dr Le, rheumatologist, in Footscray because she had fibromyalgia and multiple trigger points around her upper and lower limbs.
[101]T29
158 The plaintiff did not think Dr Le really examined her in respect of her shoulder, just for fibromyalgia. When Dr Le’s normal findings were put to the plaintiff, she said she did not have any memory of that examination. She saw Dr Le only once, because her general practitioner just wanted to confirm she had fibromyalgia.[102] She did not take up Dr Le’s offer of a further visit because Dr Le told her she had fibromyalgia and the plaintiff was already seeing Dr Jacobs in relation thereto.[103]
[102]T29
[103]T29
159 Neither Dr Jacobs nor Dr Hargreaves gave the plaintiff any advice about what she might be able to do in terms of her injury and compensation. She did not ask them about this issue because they were doctors.
160 In 2004, these general practitioners provided certificates for weekly payments for the plaintiff’s shoulder, back and neck, “because it was all really sore”. She thought Cameron Ivchenko provided certificates on a couple of occasions. He provided certificates for her fibromyalgia and her thoracic spine.[104]
[104]T30
161 The plaintiff denied she injured her left shoulder doing gym work in December 2004, as Cameron Ivchenko advised Dr Hargreaves. She agreed Mr Ivchenko was treating her for a strain to her cervical and thoracic spine and she had been diagnosed with fibromyalgia and that he sent her off to do hydrotherapy and gym work in November 2004.[105]
[105]T31
162 The plaintiff accepted that Mr Ivchenko’s comment “Unfortunately Leanne seems to have overdone it at the gym with her assisted chin-up exercises and presented to me at the clinic on 1 December 2004 with a painful left shoulder” was correct, but “that was not the first time she hurt it though”.[106]
[106]T31
163 The plaintiff thought she complained to Mr Ivchenko in November about the gym. Taping the shoulder, then, was one of the treatments that they were using.[107]
[107]T37
164 The plaintiff agreed it was part of her claim that she injured her right elbow in the incident, although she did not injure it on the day. She blames the incident for her right elbow pain and subsequent surgery.[108]
[108]T32
165 Possibly it was correct, as Mr Ivchenko also recorded in 2005, that the plaintiff was, additionally, still complaining of pain in her right elbow that had been present since Christmas when she banged it in a car door. She could not remember the incident, but it could have happened if he had noted it. She agreed she could not remember because it was so long ago.[109]
[109]T33
166 The plaintiff had had symptoms in her right elbow before Christmas 2004. She could not remember the exact dates, but she just realised that the more she was using her right arm and protecting the left, it was getting sore.[110]
[110]T33
167 When it was put to the plaintiff the first time she complained about shoulder left problems to her general practitioner was 16 December 2004, after an episode at the gym, the plaintiff responded “Well why was I going to the physio before that then?” She was going to the gym because of her left shoulder.[111]
[111]T38
168 The plaintiff disagreed that the first time she complained to Dr Hargreaves about her left shoulder was 16 December 2004.[112] When it was put to her she had been complaining about her middle back from May 2004 to 16 December 2004, she said “upper shoulder”, and disagreed it was just her middle back. She could not explain why the treatment notes did not contain a shoulder complaint until 16 December.[113]
[112]T38
[113]T39
169 The plaintiff was shown a medical certificate from Spinal and Sports, Physiotherapy which she had signed on 31 May 2005.[114] She agreed she could not see left shoulder on the diagnosis which was TH spine, dysfunction exacerbated with fibromyalgia.[115] When it was put to her that she was signing certificates with that diagnosis, the plaintiff said she was not a doctor and if WorkCover accepted these conditions as part of the claim, she just assumed it was all related. She agreed she knew the difference between her shoulder and her back.[116]
[114]T39
[115]T40
[116]T41
170 The plaintiff was shown the Worker’s Compensation Claim Form completed by her. She wrote “mechanical back injury” because that is probably what was on the thing there “… yeah because I would’ve gone by what they said”. She did not know why she wrote “mechanical back injury”, but would have got it from somewhere. She is not a doctor. When she completed the section “If you have a physical injury what part of the body is affected?”, she put “upper back”. To her, that included the shoulder. She did not say “middle back”, she just said “upper back”, but did not say “shoulder”.[117]
[117]T42
171 The plaintiff was shown the sick bay record. She must have spoken to the nurse, probably Sophie, because she did not complete the form. The plaintiff would have told her what part of her body was injured. She must have told Sophie it was her upper back – “as I said though at the time that’s were all the pain was along there, and along and along the shoulder but … no it doesn’t say shoulder”.[118]
[118]T43
172 In re-examination, the plaintiff said that as a consequence of the incident, she had pain in her shoulder and upper back.[119] Her treatment since has been directed at those two areas during 2004 from the physiotherapist at Station Street. She confirmed she was getting treatment for her shoulder.[120] Into 2005 until the time of the arthroscopy, she was having treatment to her shoulder and upper back. That treatment then continued between the two shoulder operations.[121]
[119]T44
[120]T45
[121]T46
The evidence of the Plaintiff’s solicitor
173 The availability of a potential cause of action against a solicitor responsible for delay is a relevant consideration on an application for an extension of time.[122]
[122]Tsiadis v Patterson (supra)
174 Mr Nicholas Lyons, solicitor and partner at Saines Lucas, swore an affidavit on 30 January 2018. He has had the conduct and care of this matter on the plaintiff’s behalf. His main area of practice is personal injuries and he is an accredited specialist in that area.[123]
[123]T71
175 I propose to set out in some detail Mr Lyon’s evidence not only as to his explanation for the almost five-year delay in initiating common law proceedings after becoming aware of the expiration of the limitation period, but also as he detailed the numerous other applications he was pursuing on the plaintiff’s behalf during that time.
176 Mr Lyons first met the plaintiff on 19 May 2011 when he was acting on behalf of her partner, Max, in his claim in relation to a transport accident which occurred on 30 June 2010. However, Mr Lyons was not aware of her work injuries at that time and discussed a possible dependency claim following Max’s death in April 2011.
177 On that attendance, the plaintiff mentioned she had suffered injuries during the course of her employment with the defendant, but only briefly. She did not advise him then, even of the date of those injuries, and told him that her WorkCover claims had been lodged and accepted. She did not want discuss her injuries any further at that stage due to her distress resulting from Max’s death.[124] His file note of that attendance did not mention the date of the left shoulder injury, but noted the plaintiff’s left knee was injured in 2008 or 2009.[125]
[124]T52
[125]T53
178 At that stage, it did not cross Mr Lyon’s mind that the limitation period might be running in relation to the shoulder injury.[126]
[126]T53
179 Mr Lyons wrote to the plaintiff on 18 July 2011, advising her that it was inappropriate to proceed with a claim for damages while she was still having significant medical treatment and before her injuries are regarded as stabilised. He also advised a claim cannot proceed within the first twelve months after injury, and then any claim for damages must be commenced within six years of injury occurring, or becoming aware of the effects of those injuries. He agreed by this letter he had notified the plaintiff of the limitation period.[127]
[127]T71
180 The plaintiff was seen again on 18 October 2011. Mr Lyons then obtained more detailed instructions in relation to the injuries she had suffered, including injuries to her left shoulder, the subject of this proceeding, and another injury to her left knee, sustained on or about February 2008. He was also told of quite a long and complicated history of multiple surgeries to her left shoulder, right elbow and left knee, at that time totalling six procedures.
181 Mr Lyons provided general advice in relation to no fault entitlements and potential common law entitlements. However, at that stage, he did not have any medical reports and was not in a position to provide any specific or firm advice, but only general advice. He also formed the view the plaintiff’s injuries were not stable and that, in any event, it would be premature to prepare and lodge any serious injury application.
182 The file note of that attendance set out “instructions to pursue s98/98C all injuries treating reports now. SI left knee, but query neg SI - left shoulder may be neg. Probably yes, but statute of limitations issue, but question when SI and stabilisation given surgeries s134AC.”[128]
[128]T58
183 Mr Lyons denied he then determined that the plaintiff’s shoulder injury was serious. He then did not have any medical reports. Further, he did not think all the plaintiff’s injuries were stable. He formed a general view without any medical evidence, noting she had had recent left knee surgery and that without seeking any medical evidence at all, it was premature to look at any sort of lump sum claim without looking at the correlation between the injuries and what the doctors said. While they were separate body parts, there can be one injury affecting another, and without any medical reports he could not form a view that they were stable.
184 Mr Lyons agreed that the file note of 18 October 2011 at least recognised the potential for serious injury in the plaintiff’s left shoulder.[129] As of that date, he had not determined he would proceed with the serious injury and common law damages by initiating a s98C application.[130]
[129]T72
[130]T72
185 Whilst there was a reference in that note to “no win no fee”, Mr Lyons was not talking about future common law proceedings,[131] nor did the note determine he would commence serious injury and common law proceedings by initiating a s98C. At that time, he had no medical reports at all, and he had only received instructions to proceed with a s98C impairment claim.[132] At the end of the day, he thought there was a prospect that he “would be going to serious injury.”[133]
[131]T73
[132]T73
[133]T73
186 It was premature to lodge any serious injury application for a multitude of reasons. He had no medical reports.[134]
[134]T60
187 Whilst he knew CGU was involved, Mr Lyons made no attempt then to appraise them, or WorkSafe, of the fact a common law claim was in contemplation.[135]
[135]T61
188 Shortly after the October 2011 attendance, the plaintiff received a notice from WorkCover insurance agent, CGU, dated 15 December 2011, terminating her weekly payments. She lodged an application for re-instatement and continuation of payments.
189 At that time, also, Mr Lyons commenced writing to the plaintiff’s doctors for medical reports, in particular, to her general practitioner, Dr Jacobs, and her surgeon, Mr Miller, on 20 December 2011. The plaintiff’s application for ongoing weekly payments was referred to the Medical Panel, and she instructed him to assist her with that.
190 However, during that process, the plaintiff’s left knee deteriorated and she saw Mr Miller again, who undertook further surgery on 10 September 2012. That necessitated Mr Lyon writing to the Medical Panel requesting the arranged examinations be postponed. Given the plaintiff was now totally unfit for work following that surgery, he advised it would be appropriate for her to lodge a fresh claim for weekly payments and medical expenses for an aggravation of her left knee injury. This claim was lodged on 21 November 2012.
191 The claim was rejected by CGU by notice dated 21 December, and was subsequently referred to the Accident Compensation Conciliation Service. Following unsuccessful conciliation, Mr Lyons then obtained instructions to issue a Magistrates’ Court proceeding pursuing the plaintiff’s entitlement to weekly payments and medical expenses for her left knee injuries and these were commenced on 10 July 2013.
192 The next fourteen months were occupied by this claim, inter alia, which ultimately settled on September 2014, with a favourable outcome to the plaintiff in terms of weekly payments.
193 Having received various medical reports in the interim, and having formed the view that the plaintiff’s injuries were now stable, claims for impairment benefits for her left shoulder, right elbow and left knee were prepared and lodged on 20 January 2015. These claims ultimately resolved successfully in respect to the left shoulder injuries on 8 July 2015, and unsuccessfully in respect of the left knee injury.
194 Having obtained a number of medical reports during that process and, in particular, having regard to the plaintiff’s impairment claim for the left shoulder having been successful with a whole person impairment of 13 per cent given by the insurer’s independent medical examiner, Mr Lyons formed the view, notwithstanding the lapse of time since the plaintiff sustained her left shoulder injuries, that her injuries may meet the serious injury threshold. Having reviewed the file carefully, he believed the application should be pursued, and he arranged to see the plaintiff at his office on 2 March 2016, at which time he obtained instructions to prepare a serious injury application in relation to the left shoulder injuries.
195 Mr Lyons briefed counsel on 18 March 2016 to prepare supporting documentation, and over the next four months, obtained and collated medical reports and clinical notes. He also arranged for the plaintiff to be examined independently by consultant orthopaedic surgeon, Mr Thomas Kossmann, who provided a report on 7 April 2016.
196 Mr Lyons also formed the view, when preparing that application, that there was insufficient evidence to support a loss of earnings capacity claim or an application for a certificate in that regard. He lodged the application to the Victorian WorkCover Authority (“the Authority”) on 6 July 2016.
197 The application was ultimately accepted by solicitors on behalf of the Authority by letter dated 1 November 2016. Thereafter, Mr Lyons and the solicitor for the Authority undertook the statutory process under the Act following which, after non resolution of the claim, proceedings were issued by way of Writ in the County Court on 21 March 2017.
198 The six-year time limit to commence an action for damages expired on 30 April 2010. The delay between this date and the commencement of proceedings was approximately six years and eleven months. That delay is not insignificant but, nevertheless, Mr Lyons submitted there had not been any excessive delay, either by the plaintiff, or himself or his firm, in pursuing, preparing and ultimately lodging the serious injury application which led to the issues of the damages proceedings.
199 Mr Lyons split the period between the injury and issue of Writ into two distinct periods, being the period between when the plaintiff sustained injury on the said date, 29 April 2004, and when she provided him with detailed instructions in relation to her injuries on 18 October 2011.
200 The period being of about seven and a half years, during which time the plaintiff had not obtained any legal advice in relation to her common law entitlements and her life had been consumed with her injuries, multiple surgeries, multiple periods of time off work and several other health problems of varying degrees of severity, and concluding with the death of her partner.
201 The second period between 18 October 2011 and 2 March 2017 comprised a series of events and claims in relation to the plaintiff’s left knee, right elbow and left shoulder injuries, including Magistrates’ Court proceedings and impairment claims, stabilisation of her injuries and the collecting of medical evidence, which he detailed.
202 As a consequence of these factors, that is the pursuit of the other claims, the non-stabilisation of the plaintiff’s injury, particularly in late 2012 and 2013, and the obtaining of medical evidence, Mr Lyons did not form the view there was sufficient evidence to support an application for serious injury until, at the earliest, about 2014, by obtaining medical reports in support of her claim for impairment benefits for the left shoulder.
203 Mr Lyons could not lodge the plaintiff’s serious injury application until her impairment claim had been finalised, as this is a statutory requirement. Once the impairment claims had been finalised, he took steps to obtain instructions and prepare and lodge the plaintiff’s serious injury application as quickly as possible.
204 Mr Lyons was instructed by the plaintiff, she believed, for a number years following her left shoulder injuries, and also following the two episodes of surgery, that she would recover, or would substantially recover, from those injuries, and that the relative effect of them on her life was not clear for a number of years due to the intervening injuries to her left knee in February 2008, together with the extensive treatment and multiple surgeries she underwent for that injury over the next period of four years.
205 Following that period, the plaintiff, through Mr Lyon’s firm, was engaged in litigation in relation to entitlements to no fault benefits in respect of her left knee injuries until September 2014.
206 Mr Lyons submitted, firstly, the plaintiff was not fully aware of the effect of her left shoulder injuries until her left knee injury had recovered substantially and she returned to work. Secondly, he was not aware that the plaintiff’s left shoulder injuries were significant enough to warrant advising her to pursue a serious injury application until about late 2014 at the earliest, at which time he had formed the view that the firm should recommend that the plaintiff pursue an impairment claim and a serious injury application in respect of the left shoulder injuries.
207 Mr Lyons wrote to the plaintiff in that regard on 11 November 2014. It was also unclear for some time whether the serious injury application should include an application in respect of loss of earning capacity in addition to pain and suffering but, ultimately, he formed the view that this was not the case.
208 While Mr Lyons had earlier formed the view as early as 18 October 2011 that the plaintiff may have an entitlement to bring a serious injury application and pursue a common law damages action, and had advised the plaintiff accordingly, he had not formed the view that she should do so or that her left shoulder injuries were of such consequence to recommend him advising her to pursue these entitlements until about late 2014.
209 Mr Lyons agreed that following 18 October 2011, the next reference to the limitation period was when he saw the plaintiff on 2 March 2016, notwithstanding he knew when the matter was first raised in October 2011, the matter was statute barred.[136]
[136]T70
210 On 2 March, Mr Lyons received instructions to proceed and disagreed the tenor of the material suggested he was given instructions back in 2011.[137]
[137]T78
211 Mr Lyons explained there were three main reasons why it took five years to get those instructions when he was aware the limitation period was running.
212 Firstly, he had great difficulty obtaining any medical evidence regarding the plaintiff’s left shoulder injuries. He did not believe he could form any view regarding stabilisation of those injuries without obtaining medical reports. He did not believe he had the expertise to determine, from the plaintiff’s instructions, whether her injuries were stable or not, or what treatment she may have required.
213 The second major issue was the fact that from 2011 to mid 2014, there were other issues which needed to be dealt with, particularly in relation to the plaintiff’s left knee injury, the determination of weekly payments, issues regarding medical panels, a new claim for weekly payments which had been rejected, and Magistrates’ Court proceedings in relation to those. That all did not finalise until mid to late 2014.
214 The third issue, Mr Lyons thought perhaps was the most important. He was not in any position to proceed with a serious injury application until he had medical evidence which indicated to him the injuries may even meet the serious injury test.[138]
[138]T70
215 Mr Lyons confirmed that when he deposed the plaintiff’s injuries were not stable, he meant both her left knee and her shoulder. Mr Miller’s three-page report contained the one line “left shoulder prognosis fair. Ninety five per cent of the report related to the left knee.”[139]
[139]T75
216 There were also further reports from Dr Jacobs dated 2 October and 17 November 2014[140] which largely related to the left knee and did not necessarily add a great deal. However, Mr Lyons denied they were effectively useless. Both Dr Jacobs and Mr Miller had very busy practises and Mr Lyon’s experience was that it frequently took them a long time to provide reports.[141] There were follow ups, but he did not have details of the times or dates that these doctors were telephoned or written to, but they were followed up.[142] He definitely did not sit on the plaintiff’s rights.[143]
[140]T75
[141]T76
[142]T77
[143]T77
217 Mr Lyons agreed the first time he informed the defendant insurer or WorkCover about the plaintiff’s prospective common law claim was in July 2016. He agreed at that time he did not have the most recent reports that are set out in the index to the court book, but disagreed he did not have any further information of substance to make the decision to proceed, explaining one of the key things was the medical report from the independent examiner who assessed the plaintiff’s impairment as 13 per cent in mid 2015, following which the s98C claim was accepted.[144]
[144]T80
218 Mr Lyons explained it took nearly four years to lodge a s98C claim for the same reasons as the time to issue common law proceedings; namely, the lack of any medical evidence, which indicated to him the plaintiff’s condition was stable.[145] He had, in fact, provided some reports with the impairment assessment.[146] He lodged the claim with the best evidence he had at the time.[147]
[145]T81
[146]T81
[147]T82
219 Mr Lyons denied the s98 application could have been lodged in 2011 or 2012 because he was not satisfied the plaintiff’s left shoulder injuries were stable.[148] He obtained reports in late 2014 which, although brief, did provide him with some evidence the plaintiff’s condition was stable.
[148]T81
220 Dr Jacobs reported on 2 October 2014 that the plaintiff’s condition had not changed, a view he confirmed in his letter of 17 November 2014. Having read those reports, Mr Lyons formed the view that the plaintiff’s condition had not changed.[149]
[149]T83
221 Mr Miller’s report of 17 May 2013, which related more to the left knee, described the plaintiff as having ongoing left shoulder pain. Mr Lyons agreed it did not say anything about stability, it just said the shoulder was symptomatic. It did not say the plaintiff’s condition was stable.[150]
[150]T84
222 Mr Lyons’ reading of the reports available, was that there was nothing that told him the plaintiff’s condition was stable. He disagreed, when he lodged the s98C claim in 2015 he was more, or better informed, than he would have been in 2011 or 2012.[151]
[151]T82
223 In re-examination, Mr Lyons explained that the 13 per cent impairment showed there was a permanent impairment and that was the first evidence he had that the plaintiff’s condition was stable but, also, that the left shoulder injuries were of such an extent or significance to even warrant obtaining instructions to lodge a serious injury application.[152]
[152]T85
224 Mr Lyons explained his file note of the attendance on 2 December 2014 indicated he then had formed the viewed there was sufficient evidence to lodge the impairment claim, but he still was not of the view there was sufficient evidence showing the left shoulder injuries may be serious. This situation changed when he got the impairment examiner’s reports in around mid 2015.[153]
[153]T86
225 Mr Lyons processed the s98C claim expeditiously as possible. He lodged the claim with the best evidence he had. If he had waited longer he may have been criticised further and lodged the claims when he had insufficient evidence to warrant lodging them.[154]
[154]T87
226 Mr Lyons did not lodge a serious injury application in late 2011 because he had no reports at all, apart from letters between the doctors. He needed to establish via medical evidence that the plaintiff had injuries which were stable and may warrant a serious injury application before he considered perhaps issuing an originating motion, wasting costs and time, given his obligations under the Civil Procedure Act 2010. It was his view that he needed to at least gain medical reports regarding the plaintiff’s injuries, and if they were then stable, lodge an impairment claim. Then, if all the evidence assisted him to reach a view that the injuries might reach the serious injury test, then lodge such an application. This was not a case where the plaintiff’s injury was very serious, like others.[155]
[155]T82
227 Mr Lyons also explained the difficulty as the plaintiff had multiple injuries, which was a relevant consideration in respect of a serious injury lodgement. It was certainly his view, from a pretty early stage, the left knee injury was more serious, and earlier on he thought it was far more significant and could well affect the plaintiff’s capacity to do other activities.[156]
[156]T89
228 Once he obtained instructions from the plaintiff in March 2016, Mr Lyons acted very promptly, briefing counsel to draw the serious injury application documents.[157] It is completely incorrect he sat on the plaintiff’s rights. He believed, to lodge an application earlier, he could have faced criticism - or firstly, the application could have been significantly weaker and, secondly, he could have faced criticism for lodging it prematurely, when either the plaintiff’s injuries were not stable, or there was not sufficient evidence to show they might meet the “serious” test.[158]
[157]T89
[158]T90
229 Whilst the defendant did not want to be critical, counsel for the defendant submitted it was extraordinary that Mr Lyons did nothing to apprise the defendant about the prospective common law until the service of the Form A in July 2016.
230 It was submitted that Mr Lyons failed to demonstrate any recognition of the need to act urgently and to inform the defendant of this. He used an excuse, namely the inability to obtain medical reports requested in December 2011 and not getting a response until 2013. He should have prosecuted the impairment benefit at the time he first received instructions. Plenty of cases come to court without a s98C.[159] It was submitted these excuses are without merit and do not explain the four-year, four-month delay.[160]
[159]T161
[160]T162
231 If Mr Lyons had seen Dr Chris Baker’s report of his examination in 2008,[161] it was submitted he would have seen there was no suggestion that the plaintiff’s condition was unstable. Mr Lyons only had to ask the plaintiff who paid for her surgery.[162]
[161]T163
[162]T163
232 It was submitted there was just not one skerrick of evidence to suggest any time post surgery, that the plaintiff’s shoulder had not stabilised.[163]
[163]T163
233 Further, it was submitted it was illogical for Mr Lyons to say, having received the odd sentence in a 2014 medical report saying that nothing had changed, led to a view the plaintiff’s condition was not stable.[164]
[164]T163
234 Counsel for the defendant submitted there was an exceptional delay between informing the plaintiff in 2011 of her common law rights and then bringing the serious injury application nearly five years later.[165]
[165]T184
235 It was clear from Mr Lyons’ oral evidence that he obtained a description of the incident circumstances when he saw the plaintiff on 19 May 2011 and he advised of potential lump sums and common law. It was submitted, incredibly, given his experience and specialist accreditation, his evidence was he did not then get the date of the left shoulder incident and that the limitation period did not cross his mind.
236 On the next attendance on 18 October 2011, Mr Lyon’s file note revealed he obtained an even more detailed description of the plaintiff’s left shoulder injury, surgery, light duties, consequential right elbow injury and surgery and the significant medication.
237 Mr Lyons admitted that description suggested a serious injury, that he recognised the potential for serious injury in the left shoulder and he gave advice to the plaintiff about her potential common law entitlements. He knew her claim was statute barred and he told her. He further admitted that his letter of 12 December 2011 to the plaintiff reflected a recognition by him of her common law rights and serious injury ramifications in relation to the shoulder.
238 It was submitted however, Mr Lyons gave no adequate explanation why it took him until July 2016 to issue a serious injury application. In his affidavit, he initially implied that he was concerned the injury may not be stable was the left knee. He then suggested it was also the shoulder. However, it was submitted he failed to articulate a proper basis for his belief in the circumstances when he could point to nothing in the reports he had at the time that suggested the left shoulder was not stable and when the last surgery took place in January 2006 and when there was no evidence of any instructions that any further surgery was contemplated.
239 Counsel for the defendant submitted Mr Lyons’ explanation that it was premature to prepare and lodge any serious injury application was also very difficult to follow. He said he needed to look at the correlation between the knee and left shoulder injuries and what the doctors said. He had already been told that they were entirely separate injuries and a separate claim. Even if he needed to obtain medical evidence, it is not adequately explained why it took an extraordinary five years to do so. It was also inadequately explained why it took him four years to lodge the 98C application.
240 It was submitted the explanation Mr Lyons gave at Court that he needed to obtain further medical evidence as to stability before lodging a s98 claim did not stack up with his own evidence that that claim was eventually lodged in January 2015 largely on the basis of medical evidence from prior to 2011. The additional reports he obtained in 2013 and 2014, on his own evidence, were largely pretty irrelevant to the shoulder and did not add a great deal to the other opinions by practitioners.
241 Further, as an experienced practitioner, Mr Lyons ought to have known a s98C claim is simply suspended if the claimed injuries are not stable. He therefore did not need to have waited for years and speculated as to stability. The lodgement of the claim would have prompted the arrangement of impairment assessment and would have, within 120 days, resulted in notification to him if the assessor considered the injury was stable.
242 It was submitted, in truth, what appears to have occurred is the focus was on the plaintiff’s knee injury, which Mr Lyons considered at the time to be far more serious or significant, and instead of lodging a separate s98C claim in regard to the left shoulder, he instead waited for a period of over three years to lodge a s98C claim with all the other injuries.
243 It was submitted it was also inadequately explained by Mr Lyons why, if it is accepted it was reasonable for him to have waited until after receiving a medical opinion of the nature of the s98C impairment assessment before obtaining instructions to lodge a serious injury application, and he was having difficulties obtaining reports from treating practitioners, in circumstances where the claim was already statute barred and it was imperative that any serious injury application be lodged urgently, he did not arrange a medico-legal assessment of the plaintiff to quickly inform him as to the matters of stability and the seriousness he says he obtained from the 2015 impairment assessment.
244 It was also relevant that the 12 December 2011 letter sent to the plaintiff did not mention or refer to the left shoulder claim being out of time, the next communication with her in relation to the limitation period was not until 2 March 2016 and no efforts that were made at any time prior to the serious injury application being lodged to appraise CGU or WorkSafe about the plaintiff’s potential common law action.
245 Counsel for the defendant submitted Mr Lyons’ delay could not be explained adequately by issues of stability and the need to obtain further medical reports.
246 Given the complexity of the case, counsel for the plaintiff submitted Mr Lyons acted reasonably and explicably, having initially formed the view the plaintiff’s left knee injury was more serious than her left shoulder injury.[166]
[166]T195
247 In the period from first advising the plaintiff in relation to her left shoulder and the lodgement of a serious injury application in July 2016, there were a series of legal processes underway in relation to the plaintiff’s left shoulder and knee injuries which complicated the advancement of any serious injury application in relation to her left shoulder injury.
248 Additionally, the fact the plaintiff has more than one injury, complicates the process of bringing a serious injury application as it is necessary to distinguish or disentangle the effects of each injury.[167]
[167]Peak Engineering & Anor v McKenzie [2014] VSCA 67
249 Counsel for the plaintiff submitted that medical reports available were not sufficient to form a view as to stability and until the 13 per cent impairment assessment, such evidence was absent from Mr Lyons’ “armoury”. It was not until that time in the context of a s98C impairment claim that Mr Lyons had evidence the plaintiff’s subject injury was of such an extent or significance to warrant obtaining instructions to lodge a serious injury application.[168]
[168]T196
Conclusion
250 Counsel for the plaintiff submitted that my task in this case involves a consideration of various issues but “distils down to that proposition” and that is, “can an acceptably fair trial be had having regard to those considerations?”[169]
[169]T191
251 However, as Dixon J recently stated in Holcombe v Hunt & Anor,[170] the Court is required to properly synthesise the material considerations when determining whether it is just and reasonable to extend the period of time.
[170][2018] VSC 55 at paragraph [42]
252 There is first the prospect of presumptive prejudice in this case with a delay of twelve years between the incident date and the plaintiff’s solicitors first advising the defendant of an intention to bring common-law proceedings
253 Presumptive prejudice should be evaluated in the process of synthesis. However, in my view, in the present proposed proceeding, the following matters discount the significance thereof.
254 In this case, the plaintiff’s allegations of negligence are relatively simple and straightforward relating to one incident on the said date. I accept that the absence of the post-incident work period “distils the issue and the case down to one that is relatively simple in the broader context” as counsel for the plaintiff submitted.[171]
[171]T100
255 In my view, the relevant issues can be readily tested at trial unlike the situation in Sparkes[172] where the plaintiff’s extension of time was unsuccessful because the allegations of negligence were “nebulous” in terms of the alleged failing of the truck involved.
[172]per J Forrest J at paragraph [84]
256 Further, in the present case, the plaintiff’s claim in relation to the incident injury was accepted. Surgery and other medical expenses were paid by CGU, as were weekly payments during various periods off work. The plaintiff’s left knee claim was also accepted and there is available medical evidence in relation thereto.
257 The College premises continue to be used by the defendant and are unchanged. The door remains in use and has not been altered since the said date.[173]
[173]Defendant’s Answers to Interrogatories; see T Forrest J in Welsh v Adecco Industrial Pty Ltd (ACN 004 366 634) & Ors (supra) at paragraph [50]
258 A number of witnesses as to liability are still available to give evidence, although their recollection may be weak:
(i) the principal, Jan Barrett, who witnessed the WorkCover Claim Form and Certificates and can vouch for the plaintiff;[174]
[174]Ms Black’s file note of 29 January 2018
(ii) the integration co coordinator, Louisa Cardillo;
(iii) the sick bay nurse, Sophie Bykersma, who completed the sick bay report – a contemporaneous record of the incident circumstances – and who has a recollection of the procedure for transporting students in wheelchairs as at the said date;
(iv) Braydon, the child in the wheelchair whom the plaintiff has seen since he left the College and is able to speak.[175]
[175]T200
259 There are a number of available medical witnesses as to causation, treatment and the plaintiff’s progress.
Treaters
(i) Mr Russell Miller, orthopaedic surgeon, who has operated on the plaintiff on numerous occasions;
(ii) Dr Jacobs, current, longstanding general practitioner;
(iii) Dr Hargreaves, former general practitioner, whose notes are available;[176]
[176]T200
(iv) Ms Schultz and Mr Ivchenko, former treating physiotherapists, whose notes are not available but who had prepared short reports;
(v) Dr Le, treating rheumatologist, whose notes are not available but has provided a short report;
Medico-legal examiners
(i) Mr Moran;
(ii) Dr Chris Baker; [177]
(iii) Dr Davison.
[177]T200
260 There are a number of significant documents as to liability that are still available:
(i) the sick bay report
(ii) the plaintiff’s Claim Form
(iii) the Employer’s Claim Form
(v) Medical reports and details of treatment provided pursuant to the claim accepted by CGU.
261 Whilst the defendant claims to be prejudiced on the basis of relevant documents having been destroyed given the plaintiff’s delay – pursuant to the Education Department Policy, destruction of assessments et cetera after seven years – there is no evidence that these documents ever existed.
262 I accept that there is no proper evidentiary foundation for the proposition there are many relevant occupational health and safety documents, for example in relation to safely moving students in wheelchairs throughout the premises were ever in existence and have been destroyed. All that was known was the general class of documentation had been destroyed.[178]
[178]T202
263 In any event, there is some oral evidence of the existence of a policy at that time that can be given by Sophie Bykersma, as Mr Dennis advised.
264 I accept the submission of counsel for the plaintiff that there can be an acceptably fair trial having regard to these available living witnesses and also the nature and existence of the documents available, “but particularly viewed through the prism of the particular facts of this case, which is relatively straightforward”.[179]
[179]T210
265 Taking into account all of this material, I am satisfied that if the limitation period is extended, the defendant will receive a fair trial. As Dixon J pointed out in Holcombe,[180] this finding, despite the possible implications of presumptive prejudice, is a powerful consideration in the exercise of synthesis of the material considerations.
[180](Supra) at paragraph [45]
266 The question is whether an extension of time would be just and reasonable having regard to all the circumstances of the case.[181]
[181]Holcombe (supra) at paragraph [51]
267 I accept that the plaintiff is a genuine, credible, unsophisticated woman with little experience of the legal system.[182]
[182]T193, T199 - Ms Barrett’s comments as to the plaintiff’s veracity
268 In my view, the plaintiff has provided a satisfactory explanation for her delay in seeking legal advice and bringing proceedings. I accept that she was initially unaware of the seriousness of her shoulder condition, having been able to return to work after the incident. More particularly, the myriad of other significant health and personal issues put a claim in relation to her left shoulder in the background for many years.
269 Having seen Mr Lyons on 18 October 2011, after the limitation period had expired, the plaintiff left the matter in the hands of her solicitors who were acting on her behalf in relation to a number of other applications. I accept, in these circumstances, it was reasonable for her to rely on their expertise.[183]
[183]T203
270 Counsel for the defendant submitted the plaintiff made a deliberate decision not to pursue her claim because other things were more important, notwithstanding Max’s advice.[184] It was submitted this was the type of deliberate decision that J Forrest J regarded as a factor counting against an applicant for an extension of time in Sparkes v Hylemit Pty Ltd.[185]
[184][2016] VSC 453; T153
[185]Supra
271 In my view however, the circumstances in this case are quite different. The plaintiff’s knowledge of her legal rights was simply being told by a lay person, Max, that she should do something about her case. It was not a matter of having actually receiving legal advice and making a deliberate decision not to go ahead with a claim.
272 Thus, the emphasis to be given to the plaintiff’s conduct in the synthesis is diminished whilst other powerful factors that support the conclusion that an extension would be just and reasonable remained operative.[186]
[186]Holcombe (supra) at paragraph [54]
273 Finally, in the context of this case, there is the issue of the weight, if any, to be given to any cause of action which a plaintiff may possess against her solicitor by reason of the conduct of the claim.[187]
[187]Tsiadis v Patterson (supra)
274 In Morrison & Anor v Judd,[188] referred to by Forrest J in Gordon,[189] Kirby P said the availability of an action against a negligent legal representative is relevant because common sense says that it is so. His Honour referred with approval to what had been said by Smith J in the Appeal Division of the Supreme Court of Victoria in Repco Corporation v Scardamaglia:[190]
“In the present case, if the section does require consideration of the possibility of Mr Scardamaglia's right to sue his legal representatives, I am not persuaded that that possibility is something that should affect my view that on balance it would otherwise be just and reasonable to exercise the discretion in his favour. While it might be said that on the evidence before the court the rights against the legal representatives appear to be strong, there is no admission of negligence by the legal representatives and the issues that may arise in any such action have not been investigated or pursued fully in these proceedings. In any event, confining Mr Scardamaglia to an action against the legal representatives would carry with it its own prejudice. He would be able to seek compensation not in respect of his injuries, but for his loss of his right to sue Repco. He would find himself having to prove two cases - the original case against Repco and a further case, the case against the legal representatives. The proceeding would, therefore, be more time consuming and more costly. There would also be a real risk, that, if successful, any sum recovered would be less than any sum that he would have recovered in the original proceeding; for any damages awarded would be for the lost chance to recover damages in the proceedings against Repco: …”
[188]Unreported, NSWCA, 40504 of 95, 10 October 1995
[189]Supra
[190][1996] 1 VR 7 at paragraph [15]
275 Subsequently, in Tsiadis[191] the Court of Appeal revisited this issue and stated authoritatively that the plaintiff’s right to sue his former solicitors was of relevant consideration in an application for an extension of time where Buchanan JA said the weight to be given to the availability of a course of action against a solicitor would depend upon the circumstances of each case.
“The weight to be given to the availability of a cause of action against a solicitor will depend upon the circumstances of each case. The liability of a solicitor is not to be equated with that of the original wrongdoer, and accordingly I do not think it is correct to conclude that an applicant with a good prospect of successfully suing his solicitor will suffer no prejudice if his application is refused. The liability of the solicitor will be determined not only by the likelihood of establishing liability on the part of the original wrongdoer, but also by the terms of the solicitor’s retainer, the instructions given by the client from time to time and by the manner in which the solicitor’s work has been performed. If the plaintiff is successful in an action against the solicitor, the damages to be awarded are not based upon an assessment of the losses, pain and suffering caused by the injury sustained by the plaintiff, but are commensurate with the value of the lost chance to recover damages from the original tortfeasor. Proceedings against the solicitor will be more complex and expensive than proceedings against the original wrongdoer. Usually the likelihood that the applicant will succeed in an action against his or her solicitor cannot be known with any precision when an application under s.23A of the Act is decided. In the present case it appears that Turner was in breach of the obligations which he owed to the respondent, but that view is one based upon hearing only the respondent’s version of her engagement of Turner and the events of the succeeding years, for of course no evidence was led or submissions made on behalf of the solicitor. The matters referred to by Smith, J. in Repco Corporation Ltd. v. Scardamaglia should not lead to a plaintiff’s potential cause of action against a negligent solicitor being completely ignored, but rather affect the weight to be given to the availability of the cause of action.”
[191](supra) at paragraph [28]
276 As Forrest J pointed out in Gordon,[192] it follows that a potential claim against former solicitors is a relevant consideration but that the question of what weight is to be given to it depends upon the circumstances; a court must be careful in ascribing weight to the prospect of such a claim given that the full circumstances surrounding it may not be known.[193]
[192]Supra
[193](supra) at paragraph [86]
277 A court may also take into account the prejudice to the plaintiff in prosecuting the claim against a solicitor, as opposed to prosecuting the claim that is potentially statute barred. That prejudice may take several forms – diminution in the value of the claim as well as any added cost and the complexity of the proceeding against the former solicitor.
278 Forrest J in Gordon[194] found that the case fell into the category pf an application described by Buchanan JA in Tsiadis, where “usually the likelihood that the applicant will succeed in an action against his or her former solicitor cannot be known with any precision”. Gordon was not a case where a solicitor did not issue the process because there was a concern about the prospects of success or trouble identifying potential defendants or a concern about establishing the quantum of damages. In Gordon, apart from issuing the Writ, the case was not simply prosecuted adequately with no plausible explanation for the failure to do so.[195]
[194]Supra
[195](supra) at paragraph [109]
279 In Gordon, the strength of the claim against the solicitors could be determined. Unlike in Scardamaglia and Tsiadis, Forrest J thought the prospect of a successful claim against the former solicitors must be given real consideration.[196]
[196](supra) at paragraph [113]
280 Clearly, Mr Lyons was aware from 18 October 2011 that the limitation period had expired. However, it was not until July 2016, five years later, that he made the defendant aware of the intended common-law proceeding.
281 Whilst Mr Lyon’s explanation for delay is somewhat difficult to understand in terms of his knowledge of the stability or otherwise of the plaintiff’s condition, the likelihood of the plaintiff succeeding in an action against him cannot be known with any precision[197] unlike the situation in Gordon where Forrest J had no such difficulty.[198]
[197]Buchanan JA in TsiadisvPatterson (supra)
[198]Gordon (supra) at paragraph [109]
282 The limitation period had already expired when the plaintiff first saw Mr Lyons in May 2011. Having commenced to act on her behalf in October 2011, I accept that the plaintiff’s case was one of some complexity with a number of other applications and claims and a particularly significant knee injury which seems to have been Mr Lyon’s main focus in the early days.
283 Further, there is no admission of negligence by Mr Lyons, who has provided a comprehensive explanation for his conduct of the plaintiff’s claim.[199]
[199]See Smith J in Repco Corporation v Scardamaglia (supra)
284 In my view, it would be unjust to visit the apparent tardiness of the plaintiff’s solicitors upon her.[200]
[200]per T Forrest J in Welsh v Adecco Industrial Pty Ltd (ACN 004 366 634) & Ors (supra) at paragraph [22]
285 In all the circumstances, I am ultimately persuaded that it is just and reasonable to extend the time for bringing a claim against the defendant.
286 Accordingly, the application is granted.
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