Welsh v Adecco & Ors

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT WODONGA
COMMON LAW DIVISION
CIVIL CIRCUIT LIST

S CI 2015 03755

DONNA RAE WELSH	Plaintiff
v
ADECCO INDUSTRIAL PTY LTD (ACN 004 366 634)	First Defendant
and
READY WORKFORCE (A DIVISION OF CHANDLER MCLEOD) PTY LTD (ACN 088 288 037)	Second Defendant
and
SUNICRUST BAKERIES PTY LTD (ACN 004 402 582)	Third Defendant

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	12, 13 December 2016
DATE OF JUDGMENT:	14 February 2017
CASE MAY BE CITED AS:	Welsh v Adecco & Ors
MEDIUM NEUTRAL CITATION:	[2017] VSC 44

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LIMITATION OF ACTIONS – Negligence – Personal injury in course of employment – Limitation of Actions Act 1958 (Vic) s 23A – Whether limitation period should be extended – Plaintiff seriously injured – Prejudice resulting from delay – Documents not retained – Memory of witnesses impaired by effluxion of time – Workplace and equipment no longer available as evidence – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C. Harrison QC with Mr N. Griffin	Todd Legal
For the First and Second Defendants	Mr P. Jens QC with Ms B. Myers	Thomson Geer for the first defendant; IDP Lawyers for the second defendant
For the Third Defendant	Mr D. Wallis	Wotton Kearney

HIS HONOUR:

Introduction

The plaintiff, Donna Welsh, commenced employment with the first defendant, Adecco Industrial Pty Ltd (‘Adecco’), on 17 February 2003. Adecco was a labour hire company. The plaintiff was immediately placed with the third defendant, Sunicrust Bakeries Pty Ltd (‘Sunicrust’), to perform baking duties. She remained working at the Sunicrust bakery at 60 Chapel Street, Wodonga, at all material times. In December 2004, the plaintiff’s employer changed from Adecco to the second defendant, Ready Workforce (‘Ready’), also a labour hire company. She remained employed by Ready and working at Sunicrust performing the same duties for about six months. In July 2005, the plaintiff was employed by Goodman Fielder (GF) Pty Ltd, who had assumed ownership of the Sunicrust brand. The plaintiff’s duties remained unchanged.

The claim

In her statement of claim filed on 21 July 2015, the plaintiff alleged that throughout the course of her employment with the first defendant (17 February 2003 to December 2004) and the second defendant (December 2004 to 30 July 2005) she was required to perform heavy and repetitive duties. Specifically, the plaintiff relies upon an injury alleged to have been sustained by her in January 2004 when she lifted a heavy dolly and suffered lower back pain. It is this incident that is at the centre of the plaintiff’s claim against the defendants for damages said to arise from their negligence. It follows that the heavy duties are said to have occurred from February 2003 until July 2005 and the specific injury is said to have occurred in January 2004.[1]
[1]The plaintiff’s amended submissions assert that the ‘course of employment’ injury was sustained between 17 February 2003 and 1 August 2006. This is not how the writ is pleaded. Nothing turns on this, however, as it is clear that the claim is, in reality, to do with a single incident in January 2004.

This application

It is common ground that the limitation period for this claim expired in or about January 2010 – that is, six years after the occurrence of the ‘heavy dolly’ incident. In pursuit of a common law claim in negligence, the plaintiff submitted an application under s 134AB of the Accident Compensation Act 1985 (Vic) to the Victorian WorkCover Authority (‘VWA’) on 16 October 2014 – 10 years and 9 months after the cause of action is said to have accrued. She applies for an extension of time for the limitation period under s 23A of the Limitations of Actions Act 1958 (Vic) (‘the Act’). All three defendants oppose this application.

The parties have prepared a joint chronology of relevant events. I am grateful to the parties for preparing it under the significant time pressure that was judicially imposed. The momentum of events in the plaintiff’s solicitors’ office is crucial to this application. That momentum can really only be properly assessed by reference to the chronology as set out in full.[2] For clarity in reading that chronology, it should be understood that Rodney Bird, Robert Currie, Greg Boyall and Mark Clarkson worked for Sunicrust. Mr Binnie of the firm Belbridge Hague was the plaintiff’s solicitor until Ms Kim Todd took over the file in January 2012. Ms Todd left Belbridge Hague in May 2013. The plaintiff then instructed Ms Todd, practising in her eponymous firm, to act on her behalf. Mr Monti was in 2009 a senior common law barrister. The premises referred to in the chronology is the Chapel St Wodonga Sunicrust bakery.
[2]I have not attempted to correct cosmetic blemishes; the substance of the chronology is reproduced as it was received by the Court.

CHRONOLOGY

1989		Rodney Bird commences work at premises.[3]
3 November 1996		Robert Currie commences work at premises.[4]
May 2002		Greg Boyall commences work at premises.[5]
14 February 2003		Plaintiff signs Acknowledgement of having received and read “Adecco Safety Handbook”.[6]
17 February 2003		Plaintiff commences employment with the first defendant, Adecco Industrial Pty Ltd, the labour hire organisation at the third defendant’s premises at 60 Chapel Street, Wodonga.[7]
27 October 2003		Plaintiff submits workers compensation claim to Adecco for crush injury to her left hand on 18 September 2003.[8]
January 2004		Whilst lifting a heavy dolly the plaintiff suffers low back injury.[9]
April 2004		Plaintiff attends the Wodonga Hospital for treatment of severe low back pain.[10]
April 2004		Plaintiff claims she reports back injury to Mark Clarkson.[11]
December 2004		Plaintiff is employed by the second defendant, Ready Workforce a labour hire organisation at the premises of third defendant.[12]
July 2005		Plaintiff is employed by Goodman Fielder to work at the third defendant’s premises.[13]
3 October 2005		Mark Clarkson dies.[14]
10 February 2006		Robert Currie ceases work at premises.[15]
18 May 2006		Claim is lodged on behalf of the plaintiff with Goodman Fielder in respect of injuries to her left leg and right knee.[16]
23 June 2006		Worksite assessment was conducted by Dr Maurice Wallin who had assessed the plaintiff’s injuries in respect of the pain in her shins and knee.[17]
13 August 2006		Plaintiff suffered injury to her chest, right shoulder and arm whilst employed by Goodman Fielder for which she lodged a claim form on 18 August 2006.[18]
February 2007		Greg Boyall ceases work at premises.[19]
August 2007		Manufacturing ceases at premises.[20]
July 2008		Rodney Bird ceases work at premises.[21]
16 July 2008		Plaintiff instructs Mr Binnie to lodge a permanent impairment claim to investigate the possibility of obtaining serious injury certificates in respect of the injuries to her chest, neck and right shoulder.[22]
22 August 2008		The plaintiff paid funds into a trust to cover disbursements in respect of medical reports.[23]
5 September 2008		Mr Binnie’s assistant arranged an appointment with Mr Brearley for Friday 28 November 2008 to provide an assessment in respect to the injuries to her chest, neck and right shoulder.[24]
October 2008		Plaintiff’s back condition deteriorates and she sought treatment.[25]
3 October 2008		Mr Binnie contacts Self Insurance Services, the insurers of Goodman Fielder, to obtain reports of treating doctors in respect of the plaintiff’s injuries to her chest, neck and right shoulder.[26]
6 October 2008		The plaintiff attends Mr Daniel Seaton, a myotherapist.[27]
7 October 2008		Plaintiff attends Dr Liu at the Wodonga Chinese Medical Centre with acute low back pain radiating into the hips and groin.[28]
21 October 2008		Mr Binnie telephones the plaintiff concerning medical reports he had received from both Dr Andrews and the self-insurer in respect of the injuries to chest, neck and right shoulder and is given instructions to brief Counsel.[29]
5 November 2008		Mr Monti of Counsel provides advice regarding the injuries to the chest, shoulder and neck.[30]
October – December 2008		Plaintiff receives treatment from a chiropractor, Mr Tim Maguire of Wodonga and her GP, Dr Bowman.[31]
November/December 2008		The plaintiff has a number of attendances upon Mr Tim Maguire, chiropractor, with Complete Care Beechworth Road, Wodonga.[32]
8 December 2008		Plaintiff is informed by Goodman Fielder her entitlements to weekly payments in respect of the injuries to the neck, chest and shoulder will be terminated effective from 1 March 2009.[33]
12 December 2008		Mr Maguire, chiropractor, refers the plaintiff to Dr Bowman because of numbness which had developed in the plaintiff’s groin.[34]
12 December 2008		Plaintiff sees her GP, Dr Bowman, who immediately referred her for an MRI and on 15 December referred the plaintiff to Mr McMahon.[35]
15 December 2008		Mr Binnie is informed by the plaintiff of the onset of low back and referred pain to her left leg which had been present since 2004 and had been low-key in comparison to her other injuries.[36]
23 December 2008		Mr J. McMahon, neurosurgeon, operates upon the plaintiff’s back in Melbourne.[37]
5 January 2009		Plaintiff informs Mr Binnie about her surgery done on 23 December 2008 and that she went back to her employment at Sunicrust Bakeries and that she had received emergency treatment at the Wodonga Hospital.[38]
2 March 2009		Plaintiff had a telephone conversation with Mr Binnie and informs him that she had found the report of Dr Maurice Wallin.[39]
3 March 2009		Mr Binnie during a review of reports and correspondence in respect to the contribution of her 2004 injury he emphasises treatment at the Wodonga Hospital.[40]
20 April 2009		A report of the plaintiff’s low back condition received by Mr Binnie from Dr Ross Andrews who had been the work’s doctor.[41]
27 April 2009		Mr Seaton, myotherapist, provides a report for his treatment of the plaintiff’s low back condition.[42]
21 May 2009		The plaintiff provides Mr Binnie with two claim forms, one in respect to the injury to her low back.[43]
11 June 2009		Mr Binnie contacts Mr McMahon’s rooms in regard to a medical report giving the causation of the plaintiff’s low back injury.[44]
12 June 2009		Mr Binnie attends a conciliation conference with Ms Sharon Brennan of the Accident Compensation Conciliation Service in respect of the plaintiff’s injuries to her chest, shoulder and neck. Reference is made concerning the further claim to be made in respect of the plaintiff’s low back.[45]
15 June 2009		Mr Binnie receives a call from Tracy Fox, solicitor, of the self-insured Goodman Fielder. A discussion took place concerning where claim forms should be served. It was noted in that conversation that further claims would be made i.e. in respect of the plaintiff’s low back. Mr Daniel McClellan, Goodman Fielder of Locked Bag 2222, North Ryde NSW 2113 was stated as the appropriate party to receive claim forms.[46]
17 June 2009		Mr Mahon provides Mr Binnie with a report concerning the plaintiff’s low back dated 7 June 2009.[47]
17 June 2009		Mr Binnie had a conference with the plaintiff in respect to claim forms particularly the claim in respect of weekly payments for the plaintiff’s low back condition.[48]
25 June 2009		A claim form dated 17 June 2009 in respect of the plaintiff’s low back condition is served on Mr Daniel McClellan.[49]
3 July 2009		Letter received from Sparke Helmore, the solicitors for Goodman Fielder, advising the claim for compensation in respect of the low back has been deemed not comply with s.103(2).[50]
12 August 2009		Mr Binnie sends amended claim forms together with a certificate of incapacity to Sparke Helmore.[51]
27 August 2009		Mr Binnie received a call from Ms Ilona Strong of Sparke Helmore pertaining to the dates in respect of the onset of symptoms associated with the plaintiff’s low back condition.[52]
17 September 2009		A letter was received from Sparke Helmore requesting confirmation in writing in respect of the date of injury to the low back.[53]
21 September 2009		Mr Binnie arranged to meet Mr Monti of counsel on the following day requesting advice concerning the letter from Sparke Helmore of 17 September.[54]
22 September 2009		Mr Binnie forwards a letter to Sparke Helmore confirming the date of injury.[55]
1 October 2009		Sparke Helmore by letter advises Goodman Fielder not the self-insurer pre-December 2005.[56]
7 October 2009		Mr Binnie telephones the Wodonga Hospital attempting to get records in respect of the plaintiff’s treatment.[57]
26 October 2009		Mr Binnie has a conference with the plaintiff who provided him with documents from the Wodonga Hospital in respect of an attendance on 24 April 2004.[58]
7 January 2010		Sparke Helmore request the consent of Mr Binnie to represent their client at the conciliation conference set down for 11 February 2010 in respect of the plaintiff’s other injuries.[59]
20 January 2010	Notice received from Goodman Fielder self-insurers re medical expenses in respect of the injuries to the plaintiff’s chest, shoulder and neck would cease 17 February 2010.[60]
21 January 2010	A letter from Sparke Helmore suggesting the most efficient way to deal with all issues between the parties was by way of hearing at the Magistrates’ or County Court.[61]
3 March 2010	Mr Binnie has a discussion with Ilona Strong at Sparke Helmore in respect of the plaintiff’s other injuries and the lodging for the claim for the plaintiff’s low back injury which was seen as complicated.[62]
16 March 2010	Mr Binnie chases up enquiries from the plaintiff’s treaters in respect of her back condition.[63]
20 March 2010	Dr Liu of the Wodonga Chinese Medical Centre provides notes and report in respect of his treatment for the plaintiff’s acute low back pain radiating into her hips and groin.[64]
24 March 2010	Mr Binnie sends a letter to Sparke Helmore seeking clarification whether the Plaintiff’s employer was Burns Philip & Company or Goodman Fielder Bakery. Letter encloses copy Plaintiffs payslips from Huon Personnel and Adecco.[65]
25 March 2010	Mr Binnie received a phone call from Ilona Strong discussing the joining of Burns Philip as an insurer of Goodman Fielder. Ms Strong is said to have stated that Burns Philip is the insurer of Goodman Fielder at the time of the injury back in February 2004. It was suggested that Mr Binnie forward a copy of the claim to Burns Philip to cover the period of the employment from 2004 through to August 2005 when Goodman Fielder took over as self-insurers.[66]
13 April 2010	Mr Binnie had a conference with Mr Pierorazio and discussed the forwarding of the claim to be made against Goodman Fielder, whether a fresh claim needed to be drafted for service on Burns Philip. (Note paragraph 50 of the affidavit states the conference was with Mr Monti – that is incorrect).[67]
23 April 2010	Claim lodged on Burns Philp in respect of Plaintiff back injury. It is noted that in the letter sent to Burns Philp the fact that a claim for this injury had been served on Goodman Fielders Solicitor on 25 June 2009.[68] Burns Philip wrote to the plaintiff rejecting her claim. The information in “KVT48” differs from information which had been provided by Goodman Fielder in its letter of 8 December 2008 (Exhibit “KVT10”).[69]
14 May 2010	Further letter from Burns Philip stating that the claim form dated 17 June 2009 had only been received on 4 May 2010.[70]
23 June 2010	Mr Binnie received a phone call from Mr Pierorazio and suggested that the matter would have to be referred to conciliation at the earliest possible time.[71]
24 June 2010	The plaintiff signed a request for conciliation to be directed to both Goodman Fielder and Burns Philip.[72]
29 June 2010	Mr Binnie had a conversation with Ms Ilona Strong of Sparke Helmore in respect of the low back condition and advised Ms Strong that a further claim on the employer Goodman Fielder for the period of December 2005 to March 2007 would be lodged on the basis that the plaintiff’s injury had been aggravated or exacerbated during that time.[73]
2 July 2010	Mr Binnie wrote to Burns Philip enclosing a copy of the plaintiff’s WorkCover certificate of capacity dated 23 June 2009.[74]
2 July 2010	A letter was forwarded to ACCS requesting conciliation in respect of the dispute with Burns Philip regarding the back injury.[75]
16 July 2010	ACCS provided a letter from Wisewould Mahony to the effect that they acted for Burns Philip.[76]
11 August 2010		Burns Philip wrote to Mr Binnie confirming the rejection of the plaintiff’s claim.[77]
23 August 2010		Mr Binnie served an Injury Claim Form dated 4 August 2010 claiming weekly payments.[78]
1 September 2010		On page 2 it is again confirmed that the plaintiff was employed by Burns Philip & Company Limited from about 2000 or 2001 until 21 September 2005 when the plaintiff’s employment was taken over by Goodman Fielder.[79]
15 September 2010		By facsimile to the Accident Compensation Conciliation Service Mr Binnie requested a Certificate of Outcome be issued as it is most unlikely that the matter could be resolved in a conciliation conference.[80]
15 September 2010		Mr Binnie had discussion with a representative of the Accident Compensation Conciliation Service regarding the need for a certificate of determination and another with Mr Tony Robinson of Self Insured Services who confirmed that he was satisfied there had been a claim made on Burns Philip as a self-insurer for weekly payments and for a claim for whole person impairment.[81]
17 September 2010		Conciliation Outcome Certificate is provided in respect of the plaintiff’s claim for weekly payments of compensation in respect of the low back condition.[82]
11 November 2010		Mr Monti of Counsel provided a Statement of Claim.[83]
29 November 2010		Mr Binnie had a conference with the plaintiff to settle the Statement of Claim.[84]
13 December 2010		A letter received from Sparke Helmore dated 9 December 2010 querying whether there was a claim in respect of back injury to be lodged against Goodman Fielder.[85]
20 December 2010	Mr Binnie had a discussion with Ms Ilona Strong of Sparke Helmore in respect of a then claim against Goodman Fielder.[86]
21 December 2010	Ms Ilona Strong of Sparke Helmore telephoned Mr Binnie to inform him there had been a problem in respect of the claim number. She recommended the issue of further claims.[87]
21 December 2010	Ilona Strong confirms the address for service on Goodman Fielder by email.[88]
22 December 2010	Letters forwarded to Goodman Fielder Self Insured Services and Sparke Helmore attaching claim forms in respect of both weekly payments and impairment benefits in respect of the back condition.[89]
17 January 2011	Sparke Helmore wrote the plaintiff c/- Mr Binnie, denying liability in respect to the claim for weekly payments in respect of the plaintiff’s low back condition.[90]
2 February 2011	A Conciliation Outcome Certificate was issued in respect of the claim against Goodman Fielder.[91]
11 March 2011	A Writ and Statement of Claim was issued against Burns Philip and Goodman Fielder.[92]
19 May 2011	Proceedings were transferred into the WorkCover List and Consent Orders filed dated 19 May 2011.[93]
20 May 2011	Mr Binnie met with the plaintiff to discuss further and better particulars requested by Sparke Helmore. During that meeting Mr Binnie introduced Ms Kim Todd.[94]
23 May 2011	The plaintiff underwent further spinal surgery on her low back performed by Mr J. McMahon in Melbourne.[95]
14 July 2011	The Plaintiff’s claim was fixed for hearing at Melbourne on 6 December 2011.[96]
6 December 2011	Matter listed in Melbourne but not reached.[97]
January 2012	Ms Todd took over the conduct of the plaintiff’s file with Belbridge Hague until May 2013 when she left the employment of Belbridge.[98]
18 June 2012	Matter fixed before his Honour Judge Bowman at Wodonga, a number of matters in the Statement of Claim could not be pursued, his Honour granted leave for an amendment to the Statement of Claim to be issued.[99]
18 June 2012	An Amended Statement of Claim against the two defendants was lodged.[100]
4 September 2012	The matter was refixed for hearing in Wodonga. During those proceedings an issue was raised contrary to information provided by Burns Philip in its letter of 14 May 2010 (Exhibit “KVT48”) and the second defendant in its letter of 8 December 2008 (Exhibit “KVT10”) that the plaintiff had been employed by labour hire companies during the period of her employment alleged to be by Burns Philip.[101]
5 September 2012	The plaintiff gives evidence that she has been employed by labour hire companies engaged by Burns Philip, namely Huon Personnel, Adecco and Ready Workforce. The matter is adjourned, after Burns Philp is given leave to withdraw the admission of employment in its defence and the Plaintiff is given leave to add Adecco and Ready Workforce to the proceeding.[102]
12 September 2012	Ms Todd met with the plaintiff to complete work injury claim forms which were then served on both Adecco and Ready Workforce.[103]
14 November 2012	QBE Insurance on behalf of Adecco rejected the claims for weekly payments in respect of the low back condition.[104]
16 November 2012		CGU on behalf of Ready Workforce rejected claims for weekly payments in respect to the low back condition.[105]
Approximately 2013		Goodman Fielder destroys approximately 8,000 unidentified boxes.[106]
7 February 2013		Conciliation Outcome Certificates were issued in respect of the claim for weekly payments. A Further Amended Statement of Claim seeking weekly payments was issued pursuant to the order made by his Honour Judge Bowman on 4 September 2012 and serviced on Adecco and Ready Workforce.[107]
25 – 27 November 2013		Hearing at Wodonga by his Honour Judge Bowman with some evidence take in Melbourne on 2 December.[108]
26 November 2013		The proceedings against Goodman Fielder were dismissed by consent.[109]
26 May 2014		His Honour Judge Bowman handed down his judgment in the plaintiff against the defendants Adecco and Ready Workforce.[110]
May 2014		Plaintiff instructs Kim Todd to act on her behalf in making a serious injury application in respect of her low back.[111]
19 June 2014		His Honour made Consent orders consequent upon his decision of 26 May 2014.[112]
21 August 2014		Counsel was briefed to advise and settle documentation in respect of the serious injury application.[113]
16 October 2014		Section 134AB application was submitted to the Victorian WorkCover Authority together with copies on the registered offices of Adecco and Ready Workforce.[114]
19 February 2015		Serious injury certificate is issued against both Adecco and Ready Workforce. The plaintiff instructs Ms Todd to institute common law proceedings.[115]
1 May 2015		Email from Norton Rose Fulbright Australia, acting on behalf of Burns Philip have stated that Burns Philip & Company was a holding company only who provided references to Quality Bakers Australia Limited and Sunicrust Bakeries Pty Ltd and was unable to nominate the host employer and occupier.[116]
6 July 2015		Counsel was briefed to settle the draft Statement of Claim and specifically advising as to the correct host employer and occupier to be joined in the proceedings.
20 July 2015	Counsel’s advice was received which included a settled Statement of Claim.[117]
21 July 2015		The Statement of Claim was filed and copies served upon the defendants.[118]
21 August 2015		Notice of Defence was filed by DP Lawyers on behalf of the second defendant.[119]
15 September 2015		Notice of Defence was filed by Thomson Geer on behalf of the first defendant.[120]
23 September 2015		Notice of Defence was filed by Sparke Helmore Lawyers on behalf of the third defendant.[121]
16 October 2015		A Notice of Change of Solicitors in relation to the third defendant was filed by Wotton Kearney.[122]
1 December 2016		Greg Boyall provides additional documents to the third defendant’s solicitors.[123]

[3]Affidavit of Rodney Bird sworn 19 November 2016, [4].

[4]Affidavit of Robert Dale Currie affirmed 24 November 2016, [3].

[5]Affidavit of Greg Boyall sworn 29 November 2016, [2].

[6]Affidavit of Marion Jane Morton sworn 4 July 2016.

[7]Plaintiff’s Affidavit dated 1 May 2016, [2]; Further Amended Statement of Claim, [6].

[8]Affidavit of MJM sworn 4 July 2016, Exh “MJM1”.

[9]Plaintiff’s Affidavit dated 1 May 2016, [3]; Further Amended Statement of Claim, [9].

[10]Plaintiff’s Affidavit dated 1 May 2016, [4].

[11]Plaintiff’s Answer to Third Defendant’s Interrogatory 3.

[12]Plaintiff’s Affidavit dated 1 May 2016, [6], Further Amended Statement of Claim, [7].

[13]Plaintiff’s Affidavit dated 1 May 2016, [7].

[14]Affidavit of Natasha Sung sworn 30 October 2016, [48] and NYS-1.

[15]Affidavit of Robert Dale Currie sworn 24 November 2016, [3].

[16]Affidavit of Kim Todd dated 6 May 2016, [7] and exhibit “KVT1”.

[17]Affidavit of Kim Todd dated 6 May 2016, [23], and exhibit “KVT15”: Assessment Report of Dr Maurice Wallin (23 June 2006).

[18]Plaintiff’s Affidavit dated 1 May 2016, [8]; Affidavit of Kim Todd of 6 May 2016, [8].

[19]Affidavit of Greg Boyall sworn 29 November 2016, [2].

[20]Affidavit of Natasha Sung sworn 4 July 2016, [41.3](c).

[21]Affidavit of Rodney Bird sworn 19 November 2016, [4].

[22]Affidavit of Kim Todd dated 6 May 2016, [10].

[23]Affidavit of Kim Todd dated 6 May 2016, [11].

[24]Affidavit of Kim Todd dated 6 May 2016, [12].

[25]Plaintiff’s Affidavit dated 1 May 2016, [12].

[26]Affidavit of Kim Todd dated 6 May 2016, [13] and “KVT5”.

[27]Affidavit of Kim Todd dated 6 May 2016, [14] and “KVT6”.

[28]Affidavit of Kim Todd dated 6 May 2016, 15] and “KVT7”.

[29]Affidavit of Kim Todd dated 6 May 2016, [16].

[30]Affidavit of Kim Todd dated 6 May 2016, [17].

[31]Plaintiff’s Affidavit dated 1 May 2016, [13].

[32]Affidavit of Kim Todd dated 6 May 2016, [18].

[33]Affidavit of Kim Todd dated 6 May 2016, [19].

[34]Affidavit of Kim Todd dated 6 May 2016, [18].

[35]Affidavit of Kim Todd dated 6 May 2016, [20].

[36]Affidavit of Kim Todd dated 6 May 2016, [21] and “KVT12”.

[37]Plaintiff’s Affidavit dated 1 May 2016, [15].

[38]Affidavit of Kim Todd dated 6 May 2016, [22] and “KVT13”.

[39]Affidavit of Kim Todd dated 6 May 2016, [23] and “KVT15”.

[40]Affidavit of Kim Todd dated 6 May 2016, [24] and “KVT16”.

[41]Affidavit of Kim Todd dated 6 May 2016, [25] and “KVT17”.

[42]Affidavit of Kim Todd dated 6 May 2016, [14] and “KVT6”.

[43]Affidavit of Kim Todd dated 6 May 2016, [26].

[44]Affidavit of Kim Todd dated 6 May 2016, [27] and “KVT21”.

[45]Affidavit of Kim Todd dated 6 May 2016, [28] and “KVT21”.

[46]Affidavit of Kim Todd dated 6 May 2016, [29] and “KVT22”.

[47]Affidavit of Kim Todd dated 6 May 2016, [27] and “KVT20”.

[48]Affidavit of Kim Todd dated 6 May 2016, [30] and “KVT23”.

[49]Affidavit of Kim Todd dated 6 May 2016, [31] and “KVT24”, “KVT25” and “KVT26”.

[50]Affidavit of Kim Todd dated 6 May 2016, [32] and “KVT27”.

[51]Affidavit of Kim Todd dated 6 May 2016, [33] and “KVT28”.

[52]Affidavit of Kim Todd dated 6 May 2016, [35] and “KVT31”.

[53]Affidavit of Kim Todd dated 6 May 2016, [36] and “KVT32”.

[54]Affidavit of Kim Todd dated 6 May 2016, [37] and “KVT33”.

[55]Affidavit of Kim Todd dated 6 May 2016, [38] and “KVT34”.

[56]Affidavit of Kim Todd dated 6 May 2016, [39] (NB letter not exhibited).

[57]Affidavit of Kim Todd dated 6 May 2016, [40] and “KVT35”.

[58]Affidavit of Kim Todd dated 6 May 2016, [41] and “KVT36”.

[59]Affidavit of Kim Todd dated 6 May 2016, [42] and “KVT38”.

[60]Affidavit of Kim Todd dated 6 May 2016, [43] and “KVT39”.

[61]Affidavit of Kim Todd dated 6 May 2016, [44] and “KVT40”.

[62]Affidavit of Kim Todd dated 6 May 2016, [46] and “KVT42”.

[63]Affidavit of Kim Todd dated 6 May 2016, [47] (NB “KVT43” is missing from the affidavit).

[64]Affidavit of Kim Todd dated 6 May 2016, [15] and “KVT7”.

[65]Affidavit of Kim Todd dated 6 May 2016, [48] and “KVT44”.

[66]Affidavit of Kim Todd dated 6 May 2016, [49] and “KVT45”.

[67]Affidavit of Kim Todd dated 6 May 2016, [50] and “KVT46”.

[68]Affidavit of Kim Todd dated 6 May 2016, [51] and “KVT47”.

[69]Affidavit of Kim Todd dated 6 May 2016, [52] and “KVT10” and “KVT48”.

[70]Affidavit of Kim Todd dated 6 May 2016, [53] and “KVT49”.

[71]Affidavit of Kim Todd dated 6 May 2016, [54] and “KVT50”.

[72]Affidavit of Kim Todd dated 6 May 2016, [55] and “KVT51”.

[73]Affidavit of Kim Todd dated 6 May 2016, [56] and “KVT52”.

[74]Affidavit of Kim Todd dated 6 May 2016, [57] and “KVT53”.

[75]Affidavit of Kim Todd dated 6 May 2016, [58] and “KVT54”.

[76]Affidavit of Kim Todd dated 6 May 2016, [59] and “KVT55”.

[77]Affidavit of Kim Todd dated 6 May 2016, [61] and “KVT57”.

[78]Affidavit of Kim Todd dated 6 May 2016, [62] and “KVT58”.

[79]Affidavit of Kim Todd dated 6 May 2016, [63] and “KVT59”.

[80]Affidavit of Kim Todd dated 6 May 2016, [64] and “KVT60”.

[81]Affidavit of Kim Todd dated 6 May 2016, [65] and “KVT61”.

[82]Affidavit of Kim Todd dated 6 May 2016, [66] and “KVT62”.

[83]Affidavit of Kim Todd dated 6 May 2016, [67].

[84]Affidavit of Kim Todd dated 6 May 2016, [68] and “KVT63”.

[85]Affidavit of Kim Todd dated 6 May 2016, [69] and “KVT64”.

[86]Affidavit of Kim Todd dated 6 May 2016, [70] and “KVT65”.

[87]Affidavit of Kim Todd dated 6 May 2016, [71] and “KVT66”.

[88]Affidavit of Kim Todd dated 6 May 2016, [72] and “KVT67”.

[89]Affidavit of Kim Todd dated 6 May 2016, [74] and “KVT71”.

[90]Affidavit of Kim Todd dated 6 May 2016, [76] and “KVT73”.

[91]Affidavit of Kim Todd dated 6 May 2016, [79] and “KVT76”.

[92]Affidavit of Kim Todd dated 6 May 2016, [80] and “KVT77”.

[93]Affidavit of Kim Todd dated 6 May 2016, [82] and “KVT78”.

[94]Affidavit of Kim Todd dated 6 May 2016, [6], [84].

[95]Plaintiff’s Affidavit 1 May 2016, [18]; Affidavit of Kim Todd dated 6 May 2016, [85].

[96]Affidavit of Kim Todd dated 6 May 2016, [90] and “KVT84”.

[97]Affidavit of Kim Todd dated 6 May 2016, [93].

[98]Affidavit of Kim Todd dated 6 May 2016, [94].

[99]Affidavit of Kim Todd dated 6 May 2016, [96].

[100]Affidavit of Kim Todd dated 6 May 2016, [96] and “KVT87”.

[101]Affidavit of Kim Todd dated 6 May 2016, [99].

[102]Affidavit of Kim Todd dated 6 May 2016, [100].

[103]Affidavit of Kim Todd dated 6 May 2016, [101] and “KVT90” and “KVT91”.

[104]Affidavit of Kim Todd dated 6 May 2016, [103] and “KVT92”.

[105]Affidavit of Kim Todd dated 6 May 2016, [104] and “KVT93”.

[106]Affidavit of Natasha Sung sworn 30 Oct 2016, [46.8] and [62.4].

[107]Affidavit of Kim Todd dated 6 May 2016, [105] and “KVT94”.

[108]Plaintiff’s Affidavit 1 May 2016, [19].

[109]Affidavit of Kim Todd dated 6 May 2016, [110].

[110]Plaintiff’s Affidavit 1 May 2016, [19]; Para 11 Affidavit of Kim Todd dated 6 May 2016, [11].

[111]Affidavit of Kim Todd dated 6 May 2016, [2].

[112]Affidavit of Kim Todd dated 6 May 2016, [112] and “KVT97”.

[113]Affidavit of Kim Todd dated 6 May 2016, [113].

[114]Affidavit of Kim Todd dated 6 May 2016, [115].

[115]Affidavit of Kim Todd dated 6 May 2016, [120].

[116]Affidavit of Kim Todd dated 6 May 2016, [123].

[117]Affidavit of Kim Todd dated 6 May 2016, [124].

[118]Affidavit of Kim Todd dated 6 May 2016, [126].

[119]Affidavit of Kim Todd dated 6 May 2016, [129].

[120]Affidavit of Kim Todd dated 6 May 2016, [128].

[121]Affidavit of Kim Todd dated 6 May 2016, [130].

[122]Affidavit of Kim Todd dated 6 May 2016, [131].

[123]Affidavit of Natasha Sung sworn 9 December 2016, [7] – [8].

Legal principles

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’. In determining whether it is so satisfied, s 23A(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;

(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.

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.[124]
[124]Bell v SPC Ltd [1989] VR 170, 174-175 (‘Bell’); Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547 (Toohey and Gummow JJ) (‘Brisbane South’).

(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.[125]
[125]Brisbane South (1996) 186 CLR 541, 547 (Toohey and Gummow JJ).

(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’.[126]
[126]Tsiadis v Patterson (2001) 4 VR 114, 123 [33] (Buchanan JA) (‘Tsiadis’).

(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’.[127] For present purposes, I accept this to be upon the submission of the s 134AB serious injury application to the VWA (16 October 2014).

(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.[128]

(f) The longer the delay in commencing proceedings, the more likely it is that there will be prejudice from lost witnesses or fading recollections.[129]

[127]Delai v Western District Health Service v Anor [2009] VSC 151, [22] (‘Delai’).

[128]Brisbane South (1996) 186 CLR 541, 544 (Dawson J).

[129]Brisbane South (1996) 186 CLR 541, 551 (McHugh J).

Evidence

The court book constituted four lever arch folders, which I received as a single paginated exhibit. The parties identified in submissions the precise documents relied upon. I indicated to the parties that my consideration of the tendered court book would not go beyond those documents. All parties were content with this course, and I have closely considered those identified documents. These documents were attached to over twenty affidavits from various deponents. The plaintiff deposed to a relatively short affidavit and was cross-examined briefly. I shall refer to her evidence and other aspects of the documentary evidence in the ‘analysis’ section of these reasons which follows. In short, I considered the plaintiff to be generally a reliable and credible witness.

In addition to the chronology and the evidentiary material in the court book, a further piece of evidence emerged on the second day of the hearing. In response to a notice to produce, a file note dated 23 April 2009 made by the plaintiff’s then solicitor was discovered within a number of lever arch folders of material handed over to the defendants that morning.[130] That file note was of a conference held at Belbridge Hague between the plaintiff, Mr Binnie and Mr Monti. I shall refer to it in the analysis section of these reasons.
[130]Transcript of Proceedings, Welsh v Adecco & Ors (Supreme Court of Victoria, 2015/03755, Justice T Forrest, 12 – 13 December 2016), T13 – 14; T17 (further references to the transcript will be abbreviated in these footnotes as ‘T’).

Submissions

In substance, the plaintiff argued that it would be just and reasonable to extend the limitation period in all the circumstances of the case. The circumstances relied upon were these:

(a)The plaintiff’s back condition only became ‘serious’ towards the end of the limitation period.
(b)The identity of her real employer was shrouded in mystery until 2012.
(c)Any tardiness in the prosecution of her claim was attributable to her solicitor and she should not be prejudiced in this application as a consequence of that tardiness.
(d)The prejudice asserted by the defendants is ameliorated by:
(i) the nature of the claim being based on an allegation of defective work processes established by the defendants;
(ii)witnesses Currie, Bird and Boyall are all still available as witnesses to that work process;

(iii) the death of Clarkson is not critical to the defendant;
(iv)the asserted loss of documents is not critical and, at any event, is a consequence of poor record keeping on behalf of all three defendants.

(e)The plaintiff acted promptly and reasonably once the seriousness of her condition was appreciated in 2008 and thereafter has followed the advice of her solicitors and doctors.

The first and second defendants were jointly represented and submissions were made jointly on their behalves. They contended that the application ought be refused because:

(a)There has been inordinate delay.
(b)The reasons proffered for explaining the delay are unsatisfactory.
(c)Relevant documents have been lost or destroyed by both the first and second defendants.
(d)The memories of witnesses apparently relevant to the second defendant have faded to nothing (witnesses Bennett, Gabrielidis and Hodgson).
(e)Relevant Ready witnesses to various corporate processes cannot now be identified.
(f)The Sunicrust factory closed in 2007 and no site assessment of the premises, equipment or processes can be undertaken.
(g)Mr Clarkson is dead – he was the person to whom the plaintiff alleges she reported the relevant incident.
(h)Debra Bowens[131], the person alleged to have trained and supervised the plaintiff, is a potential witness both as to the work process and the specific 2004 incident. She is unable to be located.
(i)The first and second defendants have lost the opportunity to have the plaintiff medically examined between 2004 and 2012.
(j)The loss of documents by the third defendant in relation to factory operations and associated policies and procedures also impacts upon the defence that is sought to be made by the first and second defendants.
(k)The prejudice to the plaintiff is mitigated by a viable alternative action against her former solicitors.

[131]I note that the name of this person was also variously spelled ‘Deborah Bownds’ and ‘Deborah Bounds’.

The third defendant submitted that the application ought be refused for essentially similar reasons to those advanced by the first and second defendants. Sunicrust submitted that the delay was a long one and, prima facie, prejudice ought be inferred. It submitted that it was unable to call specific evidence as to the system of work at the time of the plaintiff’s employment, and now cannot prove standard operating procedures that were in place in January 2004. The third defendant also maintained that it was precluded from joining issue with the plaintiff as to her attendance or otherwise at various educational programs provided by Sunicrust for the plaintiff. Witnesses cannot remember the plaintiff ever requesting assistance, being trained appropriately (or otherwise) or receiving safety instructions. In short, Sunicrust argued that there is specific prejudice that is incurable and all defendants are unable to have a fair trial.

Analysis

The arguments presented by the parties essentially focussed on the length of, and reasons for, the delay, and the extreme degree of prejudice claimed to have been sustained by the defendants.

The length of and reasons for delay[132]

[132]Limitation of Actions Act 1958 (Vic) s 23A(3)(a).

I regard the length of the delay as substantial. The major incident causing injury occurred in January 2004. Work injury claims were first served on the first and second defendants in September 2012 – that is eight years and eight months after the asserted accrual of the cause of action.

The third defendant, Sunicrust, through Self-Insured Services Australia (acting as claims agent for both Goodman Fielder and Burns Philip) was on notice of the plaintiff’s lower back injury from 1 July 2009.[133] Whilst this date is within the limitation period, the fact is that the plaintiff did not submit a serious injury application under s 134AB against any defendant until 16 October 2014 – ten and three-quarter years after the incident. Prior to that, the only lower back-related proceedings on foot were for statutory entitlements under the Workers’ Compensation regime set out in the Accident Compensation Act 1985 (Vic).
[133]Worker’s injury claim form received 1 July 2009.

I accept the plaintiff’s evidence that up until 2008 she had no understanding of the extent of her lower back injury. I also accept that her lower back symptoms persisted from 2004 at a relatively low level and she was distracted by other work-related injuries, and by her marriage breakdown. In December 2008 those lower back symptoms dramatically deteriorated. Mr McMahon, neurosurgeon, performed a lumbar laminectomy in December 2008. On 23 April 2009, Mr Monti conferred with both the plaintiff and her then solicitor, Mr Binnie of the firm Belbridge Hague. As I have indicated, the plaintiff’s current solicitor produced the file note of this conference on the morning of the second day of the hearing of this application.[134] It is apparent that Mr Monti stressed the need to pursue serious injury applications for the plaintiff’s injuries, including her back, at ‘the earliest possible time’. At that time, five and one-quarter years had elapsed from the asserted occurrence of the back injury.
[134]I accept without reservation that counsel for the plaintiff were unaware of the existence of this file note on day one of the hearing.

It is difficult to understand events after 23 April 2009. I accept the plaintiff’s evidence that from April 2009 she placed her legal affairs, including compensation for her lower back injury, in Mr Binnie’s hands. She agreed that she wished him to take whatever steps were necessary in order to pursue compensation for her injuries.[135] I am not satisfied that in 2009 the plaintiff had any real understanding of the mechanics of her various claims for compensation, however well they may have been explained to her. A perusal of the chronology demonstrates that months and years went by without the common law aspect of the claim receiving much attention from the plaintiff’s solicitors.
[135]T92.

In cross-examination, the plaintiff accepted that she knew the identity of Adecco as her employer and was, in fact, provided with group certificates by them.[136]
[136]T47.

What seems to have occurred after April 2009 was a graduated approach to the pursuit of compensation. Senior Counsel for the plaintiff on this application described it as ‘a linear approach’. In March 2011 (seven years and two months after the causal incident), the plaintiff’s solicitors commenced proceedings in the County Court for statutory entitlements. Judgment in those proceedings was handed down on 26 May 2014. The plaintiff had moved solicitors from Belbridge Hague to her current solicitors, Todd Legal, at about this time, and, as I have observed, a serious injury application was finally submitted on 16 October 2014. For my part, I can see no good reason why the pursuit of the serious injury application was deferred until after the statutory entitlements hearing had concluded.

A good deal of time was spent during this hearing emphasising the difficulties that confronted the plaintiff’s initial solicitors in ascertaining the identities of the defendants. I do not propose to recite those difficulties in full. I accept that the plaintiff instructed her solicitors that she had been employed by Burns Philip (Sunicrust) until September 2012, when in the course of giving evidence in a statutory claims proceeding she accepted that she had in fact been employed by labour hire companies engaged by Burns Philip (including Adecco and Ready) at the relevant times. Given these apparent labour hire arrangements, I consider there is understandable scope for confusion on the plaintiff’s part. However, in my view, reasonable diligence could have certainly uncovered Adecco’s identity as the plaintiff’s employer within the limitation period, and had proceedings been initiated in a timely manner, this error may well have been revealed much earlier than it was.

Sunicrust’s identity was no great mystery, although I accept that its complex corporate structure may have caused the plaintiff’s solicitors some difficulty. In my view, none of this provides any real explanation as to why the plaintiff’s common law claim was allowed to drift along until the lodgement of the serious injury application more than a decade after the causal event.

The ‘linear approach’ is not an explanation for this inertia. Time was on the march when Mr Monti conferred with the plaintiff and her then-solicitors in April 2009. His advice was emphatic, and it appears to have been ignored.

This inertia was in no way the plaintiff’s fault. As I have observed, she instructed her then-solicitor to proceed well within time. Having observed her in the witness box, I do not consider her to be a sophisticated or worldly person, and I am comfortably satisfied that her solicitors would not have found her to be a demanding client. In my view, it was both reasonable and desirable that the plaintiff left the broad pursuit of compensation to her solicitors, whose task it was to identify the appropriate avenues to compensation and the proposed defendants to the chosen litigation. I consider that it would be unjust to visit the apparent tardiness of the plaintiff’s solicitors upon her. It follows that I consider that the plaintiff acted reasonably in delaying consulting her solicitors specifically about her back pain until it became a serious concern. Having undergone surgery, she instructed her solicitors to prosecute her claim well within time, yet they did not.

Whilst I am not prepared to impute her former solicitors’ apparent negligence to the plaintiff, the fact that there appears to be an action in negligence against those solicitors is a factor that may be relevant to the exercise of my discretion.[137] It is not determinative, and I am careful not to overweigh it. I have not heard from the former solicitors (who are not a party to this action) and accept that any potential action of this nature is complex: the plaintiff would be required to prove negligence against both her former solicitors and against one or more of the defendants to the original action. I have also been careful not to penalise the plaintiff for my considerable annoyance at the manner and lateness of production of the 23 April 2009 file note.

Prejudice[138]

[137]Tsiadis (2001) 4 VR 114, 115–6 [2] (Ormiston J), 121 [27] (Buchanan JA).

[138]Limitation of Actions Act 1958 (Vic) s 23A(3)(b).

I have observed earlier in these reasons that the plaintiff’s claim for practical purposes is a one-incident claim said to have arisen from the heavy nature of the plaintiff’s work, and to have occurred in about January 2004. It is against this background that the prejudice to each defendant must be considered.

First defendant (Adecco)

I accept that relevant Adecco documents are no longer available to the first defendant. These documents include:

(a) an induction CD-ROM;

(b) a manual handling video;

(c) the Adecco safety book for 2004; [139]
[139]Affidavit of Christopher John Singleton sworn 18 November 2016, [4].

(d) training and induction records for the plaintiff;

(e) minutes of meetings with the third defendant;

(f) any record of the plaintiff’s report to Mr Clarkson of the 2004 incident or of complaints of lower back pain; and

(g) relevant written policies and procedures current in 2004.[140]

It is impossible to identify the precise impact the loss of these documents will have on the Adecco’s capacity to defend the allegations made against it. Those allegations include failures to provide safe systems of work, a safe workplace, adequate assistance, adequate instruction and supervision, adequate monitoring at the Sunicrust premises and a failure to heed the plaintiff’s complaints of pain.[141]

[140]Affidavit of Christopher John Singleton sworn 18 November 2016, [5]-[6].

[141]Statement of Claim (21 July 2015), [11].

Notwithstanding that the precise impact of the missing documents cannot be identified, I consider that the combined effect of the missing documentation must be substantial. Adecco has lost the opportunity to demonstrate by reference to contemporaneous documentation the fact of, and manner of, the plaintiff’s workplace induction and its (Adecco’s) interaction with the host employer (Sunicrust). Adecco is left to defend itself with bare denials and the faded recollections of those witnesses who can be found.

On the plaintiff’s case, no incident report was filed and thus no prejudice can arise from its absence.

The plaintiff contended that the document-keeping of all three defendants was less than ideal and that the destruction or loss of relevant documents either was not the plaintiff’s fault or, alternatively, that consideration of prejudice caused by that loss ought be ameliorated by the defendants’ conduct. This conduct, in the case of Adecco, was said to include the vague answers provided by an Adecco representative to its own solicitors upon enquiry about documentation relating to the plaintiff. Specifically, the first defendant’s solicitors were advised that:

it was unlikely that client files had been sent to the First Defendant’s offsite storage system however there was no way to confirm whether or not this had occurred…. [T]here was no system to differentiate the documents that were in offsite storage. [The representative] believed that documentation relating to the Third Defendant would not have been thrown out when the First Defendant moved premises in August/October 2008 however it may not have been kept.[142]

[142]Affidavit of Marion Morton sworn 4 July 2015, [37].

Whilst it may be that Adecco’s document keeping was less than ideal over the many years that have passed since January 2004, the plaintiff has failed to demonstrate that the loss of these documents has not occasioned prejudice to the first defendant. I also consider that where a claim is allowed to drift along unissued and out of time for years, complaints about opposing parties’ document keeping practices ring somewhat hollow. I am satisfied that the first defendant has suffered significant prejudice from the loss or destruction of the relevant documents.

Witnesses

The first defendant has established by evidence the following:

(a)Alison Irving worked for the first defendant at Sunicrust until April 2003. She cannot recall the plaintiff, Greg Boyall, Rob Currie or Debra Bowens. She has no recollection of occupational health and safety matters at Sunicrust. She could speak to the usual induction process in 2003.[143]
(b)Melissa Mitchell (Quick) worked for Adecco from April 2003 until some time in 2005. She cannot recall Greg Boyall, Rob Currie, Mark Clarkson or Debra Bowens. She can vaguely recall the plaintiff and the duties performed by her at the bakery. She can speak to the then-usual practice of the induction process and how new workers were contracted.[144]
(c)Felicity Aitchison worked for Adecco from October 2003 until 2011. She can recall general practice regarding new work contracts and the Adecco induction process.[145]
(d)Michael Lane was the relevant branch manager of Adecco between 2002 and April 2003. He could recall generally Adecco’s policies and procedures. He cannot recall the division of the responsibilities between Adecco and Sunicrust or specifics of operations at Sunicrust.[146]

[143]Ibid, [33(a)].

[144]Ibid, [33(b)].

[145]Ibid, [33(c)].

[146]Ibid, [34(b)].

I consider that the defendant’s evidence demonstrates that it will suffer prejudice by these faded recollections. The plaintiff has failed to demonstrate that this is not the case. I am unable to assess the nature and extent of the prejudice suffered, as to do so would require me to have an understanding of the witnesses’ fresh recollections for the purpose of comparison. Obviously enough this is impossible. All that can be said is that the first defendant has lost the opportunity to call evidence unimpaired by time related memory loss.

Second defendant (Ready)

It may be that the second defendant has suffered no real prejudice. This will be so if the plaintiff’s case truly is a ‘one incident’ or ‘one injury’ claim. If it is, it is relevant that the second defendant did not become the plaintiff’s employer until December 2004, about 11 months after the accrual of the cause of action: thus, it would inevitably succeed at trial regardless of what evidence had been lost over the years.

On the other hand, if the plaintiff’s claim is as originally pleaded, and her employment with Ready between December 2004 and 30 June 2005 is alleged to be a cause of the injury, then the prejudice to the second defendant is essentially the same as that to the first defendant.

I am satisfied on affidavit evidence filed on behalf of the second defendant that risk assessments conducted by it relating to the bakery have been lost or destroyed, as have the training and induction records relating to the plaintiff, the plaintiff’s personnel files, health questionnaires and time sheets. I am also satisfied that certain documents relating to Ready’s interaction with Sunicrust have been lost, including minutes of meetings with them.[147]
[147]Affidavit of Tenille von Ahlefeldt sworn 25 August 2016, [7].

Louise Bennett, Nick Gabrielidis and Lauren Hodgson are longstanding employees of Ready, and all worked at the relevant branch office at the relevant times. None have any recall of the plaintiff or details of Ready’s account with Sunicrust.[148] I also accept that Ready is now unable to identify the person responsible for conducting risk assessments on behalf of Ready at the Sunicrust bakery.[149] Like Adecco, Ready has lost the opportunity to call evidence unimpaired by loss of memory through passage of time.
[148]Ibid, [3], [8]; see also, Affidavit of Wayne Joseph Morphett sworn 26 August 2016, [9].
[149]Affidavit of Tenille von Ahlefeldt sworn 25 August 2016, [9].

This indicates prejudice to Ready and the plaintiff has failed to demonstrate that these losses (of both documents and recollections) do not have that prejudicial effect.

Further prejudice to both first and second defendants

The Sunicrust factory closed in 2007. The premises, equipment and processes are no longer available for inspection. In my view, all three defendants can fairly claim prejudice arising from the closure of the Sunicrust factory, the disposal of its equipment, and the loss of documents relating to the factory operations and procedures. I consider this prejudice significant. The plaintiff’s case is about the Sunicrust equipment, operations and procedures. The plaintiff has failed to establish that no prejudice arises from these factors.

Additionally, I accept that Debra Bowens, the person alleged by the plaintiff to have trained and supervised her, is unable to be located at this stage,[150] although this may change.
[150]Ibid, [9].

Mark Clarkson, the person to whom the plaintiff alleges she reported her back injury, died in October 2005. While it is tempting to conclude that Mr Clarkson would not have made it to Court even if the plaintiff had issued her claim within time, this approach is contrary to principle. The prejudice to the defendant must be assessed from the time of the accrual of the cause of action up until the making of the application for an extension of time.[151] Measured in this way, I consider that the loss of Mr Clarkson as a witness is prejudicial to the defendants, who have lost the chance to contradict or qualify the plaintiff’s account as to her report of the back injury.
[151]Delai [2009] VSC 151, [22].

Third defendant (Sunicrust)
Documents

Sunicrust is able to call limited general evidence of systems of work and the safety of its plant and equipment as they existed in early 2004. I accept that specific evidence of the plaintiff’s daily work tasks is now not available. I also accept that, due to the effluxion of time, Sunicrust cannot prove that the plaintiff attended the ‘MOVE’ manual handling training program[152] or the TALK/Toolbox Meetings[153] arranged by Sunicrust.
[152]Workers at the Sunicrust premises took part in a manual handling program called ‘MOVE’ which was facilitated by a physiotherapist. The facilitator demonstrated correct methods of manual handling and correct techniques for safely lifting objects (see Affidavit of Greg Boyall sworn 29 November 2016, [20]).
[153]TALK meetings, also called Toolbox meetings, were weekly discussions of any safety or other issues that had occurred at the Sunicrust workplace. They were attended by everyone, including the workers (see Affidavit of Robert Dale Currie affirmed 24 November 2015, [13]).

I accept that Sunicrust cannot now determine who owned the relevant work equipment or dollys,[154] and cannot now locate training and instruction documents, manual handling risk assessments, standard operating procedures, systems of work documents and documents related to the plaintiff’s training and supervision.[155]
[154]Affidavit of Natasha Sung sworn 30 October 2016, [46.2], [46.3].
[155]Ibid, [36.5].

As in the case of Adecco, I do not accept the plaintiff’s contention that any prejudice caused by the destruction of these documents was Sunicrust’s fault and that I ought conclude that the plaintiff should not be fixed with the consequences of a sloppy document destruction policy. While it is true that Sunicrust were on notice that the plaintiff had sustained a back injury from about the middle of 2009,[156] the claim ambled along for five years before common law proceedings were pursued. I have observed that the plaintiff ought not be visited with the consequences of her practitioners’ negligence, however it is quite another thing for the plaintiff to establish that Sunicrust ought not be able to rely on prejudice to which it (Sunicrust) may have contributed. In my view, the primary cause of the destruction of the Sunicrust documents, and thus the prejudice sustained, is the fact that the proceedings were instituted eight years out of time. The plaintiff has failed to establish either that no prejudice to Sunicrust arises from these factors, or that if prejudice does arise I should ignore it because it arises as a fault of Sunicrust itself.
[156]See chronology entries from 12 June 2009 onward.

I further accept that reasonable searches have been made to ascertain whether these documents exist. On the available evidence, I conclude that it is likely that they have been destroyed. I also conclude that it would have been unreasonable to expect Sunicrust or Goodman Fielder to conduct further searches.[157]
[157]8,000 potentially relevant document boxes were destroyed three years ago. A further 1,201 have been destroyed between 2011 and 2015. 1,488 remain, but with no description of their contents, and the cost to retrieve these boxes alone would be $28,272 before lawyer searches are conducted of the contents of those boxes. See affidavit of Natasha Sung dated 30 October 2016, [46.6], [46.8]. See also affidavit of Natasha Sung dated 30 November 2016, [73].

Witnesses

Greg Boyall was employed by Sunicrust during the relevant period. He states that the plaintiff would have received induction, but that he cannot remember the details of it. He said that the plaintiff would have received staff-specific training, monthly walks around the premises and MOVE manual handling training, although he cannot now recall the frequency or dates of these training sessions. Mr Boyall states that the premises operated on standard operating procedures.[158]
[158]Affidavit of Natasha Sung dated 30 October 2016, [32.1], [32.2], [32.3], [32.4] and [32.5].

Rodney Bird remains employed by Sunicrust. He cannot recall the plaintiff suffering or reporting a back injury.[159] Generally, he recalls that both labour hire companies (Adecco and Ready) had their own induction and safety processes[160] and he could not recall if casual staff were taken through the Sunicrust induction.[161]
[159]Affidavit of Rodney Bird dated 29 November 2016.
[160]Ibid, [12].
[161]Ibid, [15].

Martin Lampitt remains employed by the third defendant. He recalls the plaintiff, and says she would have received an induction with Sunicrust, together with on-the-job and task-specific training. He believes that there were, in 2004, both standard operating procedures and training manuals. He is unsure as to whether they have been retained.[162]
[162]Affidavit of Natasha Sung dated 30 October 2016, [33]-[39].

Sunicrust has lost the opportunity to call this evidence unimpaired by time-related memory loss. The plaintiffs have not demonstrated that this is not prejudicial to Sunicrust.

Conclusion on prejudice

I consider that all defendants have been very substantially prejudiced by the lengthy delay in the prosecution of this claim. Unsurprisingly, witnesses’ recollections have faded, and if they have recall at all, it is only of the general practices at the time. By and large the witnesses speak to what would have occurred, rather than what did occur.

I consider that if proceedings had been issued within the limitation period it is considerably more likely that documents would have been found that were directly relevant to the plaintiff’s allegations. The effluxion of time has denied all defendants the chance of relying on these documents in order to refute the allegations that are made against them.

I also consider that the closure of the Sunicrust factory and the disposal of the equipment, including the dollies, is a significant prejudice. If the factory were still operating, and the work processes unchanged and the equipment (including the dollies) still available for inspection, then much of the prejudice claimed by all defendants might have been overcome. This, however, is not the case.

Extent to which the defendants had taken steps to make available to the plaintiff means of ascertaining relevant facts[163]

[163]Limitation of Actions Act 1958 (Vic) s 23A(3)(c).

Insofar as this issue relates to document retention policies, I have dealt with it in my analysis of the prejudice alleged by each of the three defendants. While I accept there may be some force in the plaintiff’s criticism of the defendants’ document retention policies, the significant delay in lodging the plaintiff’s claim is likewise to blame for the disappearance of what might have been relevant materials. There is nothing to suggest that any of the three defendants has been obstructive in attempts to recover relevant documents.

The third defendant has a complex corporate structure. I accept that this may have made the task of the plaintiff’s former solicitors more difficult. However, as I have observed, earlier I do not accept that these difficulties were insurmountable or anywhere near such an obstacle. The plaintiff knew she was working at the Sunicrust factory making Sunicrust bread. This is not a case where a defendant, through its conduct, has either disappeared into the ether or taken any positive steps to disguise the correct entity for service.

Similarly, I accept that employment via a labour hire company may have caused some confusion for the plaintiff, and initially for her solicitors. However, there is little that either the first or second defendant could have done to assist the plaintiff in the initial enquiries, as they were not served with statutory claim forms (and by inference not notified of any potential for a common law action) until September 2012.[164]

Disability suffered by the plaintiff[165]

[164]Affidavit of Kim Todd of 6 May 2016, [100]-[101].

[165]Limitation of Actions Act 1958 (Vic) s 23A(3)(d).

There is no suggestion that any disability suffered by the plaintiff after January 2004 impacted upon her capacity to, or decision to, pursue compensation proceedings.

Sections 23A(3)(e) and (f)

I have dealt with the promptness and reasonableness of the plaintiff’s acts in paragraph [22] of these reasons, including in seeking legal advice. In December 2008, she became aware that her back injury was significant. Thereafter, in my view, she acted reasonably and promptly. Her then-solicitor did not. I also accept that she sought legal and medical advice in a prompt, timely and reasonable fashion.

Conclusion

Synthesising these competing factors as best I can, I am not prepared to grant this application. The plaintiff, I have found, acted reasonably and promptly from the time that her back injury deteriorated dramatically in December 2008. I accept that before that time there were minimal symptoms and it would have been speculative to pursue a common law claim in negligence. By April 2009, the plaintiff had undergone serious lower back surgery and had placed her compensation affairs (including for her back) in the hands of her then-solicitor. I doubt that she could have done much more. Whilst I am not prepared to impute to the plaintiff the apparent tardiness of her solicitors, in my view no defendant can now, in 2017, achieve a fair trial. I consider that it would not be just and reasonable to extend the limitation period.

I have reached this conclusion without regard to my view that, prima facie, the plaintiff would appear to have a viable cause of action against her former solicitors. The prejudice occasioned to the plaintiff by the rejection of this application may be ameliorated to some degree by this.

The application is refused.

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[2017] VSC 44

14 February 2017