Watt, Christopher Mark v Trans United Pty Ltd

[1998] TASSC 121

121/1998

PARTIES:  WATT, Christopher Mark
  v
  TRANS UNITED PTY LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M18/1997
DELIVERED:  9 October 1998
HEARING DATE/S:  1 October 1998
JUDGMENT OF:  Underwood J

CATCHWORDS:

Workers Compensation - Alternative rights and election between different remedies - Alternative rights against employer for damages at common law - Limitation of time for instituting action for damages - Application for extension of time - Factors relevant to the proper exercise of the discretion - Application refused.

Workers Rehabilitation and Compensation Act 1988 (Tas), s135(2).
Sophron v The Nominal Defendant (1957) 96 CLR 469; Klein v Domus Pty Ltd (1963) 109 CLR 467; Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1, applied.
Aust Dig Workers Compensation [122]

REPRESENTATION:

Counsel:
             Applicant:  G W Tremayne
             Respondent:  C N Dockray
Solicitors:
             Applicant:  Griffits & Jackson
             Respondent:  C N Dockray

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  121/1998
Number of pages:  4

Serial No 121/1998
File No M18/1997

CHRISTOPHER MARK WATT v TRANS UNITED PTY LTD

REASONS FOR JUDGMENT  UNDERWOOD J

9 October 1998

The applicant seeks an order pursuant to the Workers Rehabilitation and Compensation Act 1988 ("the Act"), s135(2), extending the time limited by subs(1) for the commencement of proceedings for damages for negligence against the respondent.

The facts

The applicant was employed by the respondent as a truck driver.  He started work for the respondent in 1989.  He suffered personal injury arising out of and in the course of his employment on 4 October 1993.  On that day the applicant was driving one of the respondent's flat tray trucks.  On the back was a container load of tyres.  The container covered virtually the whole of the tray of the truck.  In accordance with his instructions, the applicant drove the truck to the premises of Messrs Duggan and Parker at Chesterman Street, Moonah.  There he commenced to unload the tyres.  It was something that he had done on many previous occasions. 

I infer that the applicant first opened the rear of the container.  He then climbed onto the back of the truck and into the container.  Inside, the tyres were stacked in piles.  They were all truck tyres, each weighing about seventy to eighty kilograms.  The applicant unloaded the tyres by pulling them off the stacks one by one and then rolling them out of the container and off the back of the truck.  The unloading took about an hour.  It was heavy, physical work.  As the unloading progressed, the applicant began to experience an ache in his back.  In cross-examination, the applicant described the ache as "aggravating" but it was not sufficiently severe to stop him working.  When all the tyres that had to be delivered had been unloaded, the applicant jumped to the ground off the back of the truck which was just about a metre above ground level.  He did this by squatting or bending down and putting one hand on the rear edge of the tray.  He then jumped off the tray, swinging around as he did so.  The applicant said, and I accept, that as soon as his feet touched the ground, he felt a sharp pain in his back.  He said in cross-examination it was quite severe.  He said that in addition to this sharp pain, the dull ache remained. 

The following day, the applicant consulted a general practitioner, Dr Margaret Smith and was certified unfit for work for a week.  Dr Smith advised conservative treatment and physiotherapy for back strain.  On 12 October 1993, Dr Smith extended the certificate until 17 October.  A claim for weekly payments was made and accepted.  The applicant returned to work on 20 October 1993 with a restriction that he was not to lift weights in excess of twenty kilograms.  He wore a "back belt". 

At the request of the respondent, the applicant was examined by its medical advisor, Dr Mather.  It appears that Dr Mather's advice coincided with that given by Dr Smith.  The applicant's work was limited to twenty hours per week.  However, the pain in the applicant's back did not improve as time passed. 

On 22 May 1995, the applicant suffered another injury to his lower back, or the symptoms became worse when he slipped to the ground off the seat of his truck.  The applicant's disability was again exacerbated on 15 August 1995, after he had been shovelling lime and loading cartons of apples at work.  The applicant was referred to orthopaedic surgeons, Mr Turner and Mr Mills, and the neurosurgeon, Mr Hunn.  There was radiological evidence of a right side L5/S1 disc bulge. 

At the end of September 1996, the applicant consulted Mr Gruber, a legal practitioner.  This was the applicant's first consultation with a legal advisor concerning his back injury.  Mr Gruber advised the applicant that if he wished to sue his employer for damages for negligence, he "only had three (3) days left to do it" (per applicant's affidavit, par12).  At the time of this consultation, the applicant was off work.  He had been off work since the occasion of shovelling lime and unloading apples.  Although there was no evidence of the advice given to the applicant by Mr Gruber with respect to his prospects of making a successful claim against his employer, there was no suggestion that Mr Gruber's advice was anything other than completely appropriate.  The applicant said that after consulting Mr Gruber, he decided not to commence proceedings for damages against his employer.  He said that he did not want to take this course because he hoped he would get better and because he did not want to "cause any trouble at work".  The applicant said that he thought that he might lose his job if he commenced proceedings, but agreed in cross-examination that he had heard nothing to suggest that this would be the case. 

The applicant's back did not improve and he did not return to work.  At some stage he was admitted to hospital for a few days. 

On 23 July 1997, ten months after the time limited for commencing proceedings had expired, the applicant consulted another solicitor, Mr Griffits.  Mr Griffits asked the applicant to get him some further information about the circumstances surrounding his accident.  On 30 July 1997, Mr Griffits wrote to the respondent advising that an application to extend time would be made.  On 5 August 1997, the applicant attended a meeting at his employer's premises.  Present were his rehabilitation officer and two representatives of the respondent.  At that meeting, the respondent told the applicant that they could not take the risk of letting him continue with the limited work that he was doing.  The respondent told the applicant that he would be contacted if some suitable work became available.  There has been no such contact and the applicant has not since worked for the respondent. 

The applicant consulted Mr Griffits on several occasions after the first visit.  In early October 1997, twelve months after time had expired, the applicant again decided not to take proceedings against the respondent.  In his affidavit, the applicant deposed:

"In early October 1997 I had a long meeting with Mr Griffits and discussed my claim.  For a long time before that meeting I had been worried about whether or not I should try and bring a claim.  I worried about bringing the claim so much that when I saw Mr Griffits in October, I had decided that I would not make any claim for damages.  I did not think I could take the worry of going to court."

There was no evidence of any advice given by Mr Griffits but again, there is no suggestion that the advice given was anything other than entirely appropriate in the circumstances.

On 21 January 1998, four years and three months after the accidental injury was suffered, the applicant consulted another solicitor, Mr Tremayne and, in result, this application was filed on 27 January 1998. 

The law

The principles governing the proper exercise of the discretion, conferred in unfettered terms by the Act, s135(2) are well established and were not in dispute on the hearing of this application. See Sophron v The Nominal Defendant (1957) 96 CLR 469; Klein v Domus Pty Ltd (1963) 109 CLR 467; Hall v The Nominal Defendant (1967) 117 CLR 423 and Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1.

Some very important statements of general principle are set out in the judgment of McHugh J in the Brisbane Health Authority case 8 - 11.  It is not possible to set out all of the relevant passages in his reasons for judgment, but I refer in particular, to his Honour's observations at 9:

"A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated."

On the next page, his Honour said, "A limitation provision is the general rule; an extension provision is the exception to it."  His Honour went on to note that it is for an 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."  Although there is no statement of new principle in his Honour's reasons for judgment, those reasons illuminate in the clearest possible manner, not only the relevant principles but also the rationale for them.

Upon the material before me, the applicant's prima facie case is barely discernible.  Whilst it is unlikely to be disputed at trial that the activities of unloading tyres and jumping off the back of the truck gave rise to a foreseeable risk of injury, there is very little material from which it might be inferred that a reasonable employer would have done anything that the respondent did not do to eliminate or minimise that risk of injury.  If the injury was caused by unloading the heavy tyres, it is possible that a prudent employer might have engaged two men for that task.  However, jumping off the tray of the truck in the manner adopted by the applicant, is an ordinary every day occurrence in the work place.  Amongst the affidavit material read upon the hearing of this application, was an affidavit by a neurosurgeon, Mr Petty.  He opined:

"… it would be reasonable to accept the Plaintiff precipitated a disc bulge in the incident when he jumped from the tray of the truck to the ground.  It is quite clear from the history given to me that this was the precipitating incident leading to his present trouble.  From my own observations I believe that he performed the activity in the normal way that everyone does when they get off a truck tray — that is they put their hand on the side, lower themselves and jump off.  I have seen this done many times myself without observable injury being suffered."

However, Dr Margaret Smith, who was cross-examined upon her affidavit said that it was possible that the disc bulge was the result of both unloading the tyres and jumping off the back of the truck in that the latter activity was "the last straw".  Although a prima facie case is barely discernible, it is possible that other evidence, particularly medical opinion evidence, may be adduced at a subsequent trial which will alter the complexion of the applicant's case.  See Sole v Sole 23/1982 at 6.

There is no doubt that the applicant has suffered prejudice by the effluxion of time.  Dr Smith agreed in cross-examination that five years after the event, it would be very difficult to determine whether unloading the tyres or jumping down from the tray of the truck, or both, was responsible for the bulging disc in the applicant's spine.  Further, the applicant's present condition has been complicated by the two incidents of exacerbation in 1995, although as was submitted on behalf of the applicant, the applicant was seen by the respondent's medical advisor soon after the injury was sustained in October 1993 and well before the occurrence of the events in 1995.

In my view, the most significant factors in the exercise of the discretion are:

• Before the expiration of the period limited by the Act, s135(1) had expired, the applicant sought and received appropriate legal advice. In the knowledge that unless the Court made an order his right to proceed against the respondent would be lost, the applicant decided not to commence proceedings. This decision was considered, rational and made after receiving legal advice. The claimed rationale for that decision appears to have no sound basis in fact; cf Plumb v Electricity Commission (1991) Aust Torts Rep 18-121.

• Ten months later, the applicant reconsidered his decision.  Over a period of time, he consulted another solicitor on several occasions and again received appropriate advice.  As was the case ten months earlier, the applicant made an informed decision not to commence proceedings against his employer in a considered and rational way.  The rationale for the decision this time was different from the rationale for his previous decision.  It was an unspecified "worry about going to court".  This worry appears to have sufficiently abated after the applicant consulted his third solicitor in January 1998.  No detail was given of the nature and extent of the applicant's worry about going to court, nor what caused it to sufficiently abate a few months later.

  In all these circumstances, the applicant has failed to show that it would be just as between the parties to make the order sought.  As McHugh J pointed out in the Brisbane Health Authority case (supra) at 10, the expiration of three years is not an arbitrary cut off point, but the period within which the legislature has decided that all claims must be brought, having regard to the welfare of all relevant sectors of the community, unless there is some good reason why that time should be extended.  No such good reason has been shown here.  Apart from the prejudice that the respondent will suffer if time is extended, the applicant twice made informed and considered decisions not to commence proceedings against his employer.  No new circumstance has been shown to have arisen since those decisions were taken that would make it just as between the parties to allow the applicant to change his mind and agitate a dispute that the statute has declared is at an end.

  The application is dismissed.