Zivanovic v Kanina Banner Pty Ltd (Ruling)
[2020] VCC 571
•19 March 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-19-02887
| MIRJANA ZIVANOVIC | Plaintiff |
| v | |
| KANINA BANNER PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 January 2020 | |
DATE OF JUDGMENT: | 19 March 2020 | |
CASE MAY BE CITED AS: | Zivanovic v Kanina Banner Pty Ltd (Ruling) | |
| MEDIUM NEUTRAL CITATION: [First revision 8 May 2020] | [2020] VCC 571 | |
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
Cases Cited:Swannell & Anor v Farmer [1998] VSCA 104; 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 & Ors [2017] VSC 44; Tsiadis v Patterson (2001) 4 VR 114; Gordon v Norwegian Capricorn Line (Australia) Pty Limited [2007] VSC 517; Bell v SPC Ltd [1989] VR 170; Clark v McGuinness [2005] VSCA 108; Anisiena v H Crane Haulage Pty Ltd [1974] VR 670; RepcoCorporation v Scardamaglia [1996] 1 VR 7; Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614; Delai v Western District Health Service [2009] VSC 151; Axford v Gray [2013] VSC 664; Davies v Nilson [2015] VSC 584; Damman v Peninsula Health [2012] VSC 572; Van Gerven v Amaca Pty Ltd [2012] VSC 131; Maile v Rafiq [2005] NSWCA 410; Ford Motor Company (Aust) Ltd v Kulic [1988] VR 152; Holcombe v Hunt [2018] VSC 55
Ruling: Extension of time granted.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Ms A Smietanka | Zaparas Lawyers |
| For the Defendant | Ms B Myers | Wisewould Mahoney |
HER HONOUR:
Introduction
1 On 24 June 2019, the plaintiff filed a Writ seeking damages for pain and suffering and loss of earning capacity damages in respect of bilateral arm injuries she alleged to have suffered whilst working for the defendant as a medical scientist between November 2007 and 1 March 2010 (“the said period”).
2 The plaintiff’s allegations of negligence relate to the system of work, alleging she was required to engage in repetitive tasks for unreasonable periods of time without adequate breaks which required her to use her bilateral upper limbs, including hands and neck, to hold and squeeze pipettes up to 700 times a day and repetitively unscrew vials (“the work duties”).
3 Section 5(1)(a) of the Limitation of Actions Act 1958 (Vic) (“the Act”) provides the plaintiff has six years from the date of the cause of action accruing to commence a common law proceeding. In this case, time commenced on 1 March 2016.
4 On 1 August 2019, the defendant filed its Defence, pleading reliance on s23A of the Act.
5 By Summons dated 3 December 2019, the plaintiff’s current solicitors, Zaparas Lawyers, (“Zaparas”), sought leave to extend the time within which the plaintiff may bring her proceeding for damages arising from the injuries suffered by her in the said period.
6 The plaintiff does not have a cause of action until she has entered through the serious injury gateway.[1] However, leave has been granted pursuant to s134AB of the Accident Compensation Act (“the ACA”) to bring proceedings for damages for both pain and suffering and loss of earning capacity in relation to the plaintiff’s injuries.
[1]Swannell & Anor v Farmer [1998] VSCA 104
7 Counsel for the defendant submitted the application for an extension of time was nine-and-a-half years after the cause of action accrued on 1 March 2010, and three-and-a-half years after the limitation period expired.[2]
[2]Transcript (“T”) 31
8 Counsel for the plaintiff submitted, for the purpose of calculating time under this Act, the following periods are to be disregarded:
(a)the period of time from lodging of the s98C claim until 30 days after the Victorian WorkCover Authority determination;
(b)the period of time commencing from the date upon which the serious injury application is made until the date of the issue of the common law writ.
9 So far as there has been a delay between 1 March 2016 to date, the plaintiff lodged a s98C claim on 25 August 2017, then withdrew it and lodged a serious injury application on 13 September 2018. The Writ was issued on 24 June 2019. Counsel for the plaintiff submitted this period should be disregarded when considering the delay on behalf of the plaintiff. It was submitted that she has acted promptly since discovering her former solicitors had not lodged her claim.[3]
[3]T2; T13
Legislation
10 Section 23A(2) of the Act empowers the 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”.
11 In determining whether it is so satisfied, s23A(3) of the Act 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 he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.”
Legal principles
12 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.[4]
[4]Marceta v Efandis [2016] VSC 265 per Beach JA; Sparkes v Hylemit Pty Ltd [2016] VSC 453 per J Forrest J at paragraph [33]
13 In Brisbane South Regional Health Authority v Taylor[5] (“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. … .
Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.
In enacting limitation periods, legislatures have regard to all these rationales. 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 … .”[6]
[5](1996) 186 CLR 541 at 551-552
[6](Supra) at 551-553
14 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:[7]
“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.”
[7](Supra) at 553
15 In Prince Alfred College Inc v ADC[8] (“Prince Alfred”), 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.”[9]
[8][2016] 258 CLR 134 at paragraphs [99]-[100]
[9]Brisbane South (supra) at 544, 549-550 and 556
16 In Brisbane South,[10] 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. … .”[11]
[10]Supra
[11](Supra) at 555
17 In Welsh v Adecco Industrial Pty Ltd (ACN 004 366 634) & Ors[12] (“Welsh”), T Forrest J conveniently set out the applicable legal principles in extension of time applications:[13]
[12][2017] VSC 44
[13](Supra) at paragraph [6]
“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.
(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]Brisbane South (supra) per Toohey and Gummow at 547
18 In Tsiadis v Patterson[15] (“Tsiadis”), 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]
19 In consideration of the question of prejudice and whether there can be a fair trial, in Gordon v Norwegian Capricorn Line (Australia) Pty Limited[16] (“Gordon”), 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]
The Plaintiff’s evidence
20 In her first affidavit sworn on 22 January 2018, the plaintiff detailed the circumstances of her claim and her subsequent involvement with Mr Hadjina of Shine Lawyers, her former solicitors.
21 The plaintiff was born in June 1962 in Serbia and is now aged fifty-seven. There, she completed a Bachelor of Medicine/Bachelor of Surgery and became qualified as a general practitioner. She worked in that role until about 1997. Thereafter, she completed a Postgraduate Diploma in Clinical Biochemistry and worked as a clinical biochemist until 2004. At that time, she was a single mother raising her twin sons.
22 In December 2004, the plaintiff migrated to Australia, and over the next two years, undertook various studies to become qualified to undertake laboratory work. She got work with the defendant as a medical scientist and worked in that capacity in the said period in the defendant’s medical laboratory at 68 Burwood Highway, Burwood (“the premises”).
23 The plaintiff’s duties consisted of performing hormonal testing of saliva on human patient samples. She worked an eight-hour day, Monday to Friday, but her duties were such that she did not complete them in this time and was generally required to work ten to fifteen hours per day. She complained to Mr Nerouppos of the workload but was told she would be sacked and was not entitled to overtime.
24 In her first affidavit, the plaintiff described her work duties. She was required to complete testing on about 100 patient saliva samples, with seven hormone tests on each sample, thus 700 tests per day. When doing the testing, she was required to constantly hold and squeeze and use a pipette repetitively using her hands.
25 The plaintiff began to experience symptoms in her hands and arms in about August 2008. On 6 September that year, she started to see her general practitioner, Dr Arthur Gouras, in relation to this complaint, and saw him again in February and March the following year, when he organised investigations and prescribed painkillers.
26 At a consultation in March 2009, the plaintiff was present when Dr Gouras had a phone discussion with the defendant. She understood, based on what her doctor told her, that he wrote to Mr Pharonides on 8 April 2009.[17]
[17]T19
27 In the handwritten letter from Dr Gouras to Mr Pharonides, he advised that the plaintiff presented with symptoms of soft-tissue injuries in the hands and arms and that he had organised an EMG, which was normal. Dr Gouras also advised he believed some attention should be given to the plaintiff’s duties, so her symptoms do not deteriorate further.
28 The plaintiff received a letter of retrenchment dated 1 March 2010, together with a payout from Dorevitch Pathology (“Dorevitch”) which had purchased the defendant company. The plaintiff had earlier been offered a full-time job at Dorevitch on 15 February 2010.
29 The plaintiff continued to experience symptoms. More significant medication was prescribed and she had specialist referral and physiotherapy treatment.
30 Dr Gouras provided a Certificate of Capacity in February 2012 setting out the plaintiff had painful hands and arms.
31 It is unnecessary to detail further the treatment undertaken to date and the plaintiff’s ongoing pain and restrictions and the employment consequences as the defendant has conceded serious injury under both heads.
32 As it was not suggested there was any relevant delay on the part of the plaintiff in seeking legal advice or relying on the advice of her former solicitors, the situation in relation thereto can be briefly summarised as follows.
33 The plaintiff was a new migrant and the job she had with the defendant was her first in Australia.
34 The plaintiff originally engaged Dean Hadjina, then of Shine lawyers, to act on her behalf. From October 2010 until May 2017, the plaintiff trusted him to give her advice. Sometime during that period, she discovered her file had been transferred to Nowicki Carbone Lawyers (“Nowickis”) when Mr Hadjina started working for that firm. Mr Hadjina told her repeatedly he had lodged an application in relation to her work-related injuries. He also told her that a hearing date had been adjourned.
35 On 9 August 2017, the plaintiff met with another lawyer at Nowickis, Ms Muscara, who advised she was taking over the plaintiff’s case as Mr Hadjina had left the firm. The plaintiff was also given Claim Forms to sign, which she did on 25 August 2017. She was not aware of any limitation period, or that it had expired, until about mid 2017.
36 In her further affidavit sworn on 29 November 2019, the plaintiff gave more detail of her dealings with Mr Hadjina, including swearing three affidavits in 2015 and signing an overarching obligations certificate that year.
37 In about October 2017, the plaintiff engaged Zaparas (“her current solicitors”) to act on her behalf.
38 As a result of her dealings with Mr Hadjina, the plaintiff had lodged a claim with the Legal Services Board. She understood he denied, in part, the substance of her allegations against him and there was a factual dispute about events.
39 The plaintiff then detailed her attempts to contact the defendant’s relevant witnesses, Mr Pharonides and Mr Nerouppos.
40 The plaintiff swore a further affidavit on 24 January 2020 in which she set out contact details of her former supervisor, Brian Stevens, and her conversation with him on 23 January 2020.
41 In her Further Affidavit of Documents sworn on 7 December 2019, the plaintiff included a number of documents including Saliva Meeting Minutes of 19 February 2009, a number of Salivary User Manuals, a PathLab hormone testing instruction pamphlet and various saliva testing procedure instruction sheets.
42 Aleksandra Vidic, solicitor at Zaparas, swore an affidavit on 3 December 2019 detailing her firm’s involvement in the plaintiff’s case from 4 October 2017 until 24 June 2019 when the Statement of Claim was issued.
43 Ms Vidic swore a supplementary affidavit on 23 January 2020 to which she exhibited documentation relating to the plaintiff’s complaint to the Legal Services Commissioner (“LSC”) about Mr Hadjina’s conduct: letter to LSC from Mr Hadjina dated 12 June 2018; letter to the plaintiff from the LSC dated 24 April 2019; copy email of 20 February 2019 to LSC, and copy email from LSC to Mr Hadjina dated 12 February 2019.
44 Mr Hadjina provided a very detailed explanation to the LSC for failing to issue proceedings in the limitation period, including initially not being given formal instructions by the plaintiff whilst he was at Shine; the informal nature of his contact with the plaintiff; whilst at Nowickis, delays caused by the plaintiff in providing instructions; his concerns about the veracity of her physical complaints; he being threatened by persons he believed were members of the plaintiff’s family, and the plaintiff’s hesitancy to proceed with her claim, particularly while she was still studying.
The Defendant’s evidence
45 Jennifer Burnett, solicitor for the defendant, swore an affidavit of 23 January 2020. Her understanding of the key events was based on the plaintiff’s serious injury affidavits and medical reports and an investigation report carried out by M A Sedawaie & Co, insurance adjusters and investigators, dated 20 September 2017, and a supplementary report dated 22 November 2017.
46 The report set out the defendant was sold in March 2010 to Dorevitch. Work at the premises ceased shortly thereafter.
47 Ms Burnett noted that there were three potential witnesses referred to by the plaintiff in the documentation: Mr Pharonides, Mr Nerouppos and Mr Brian Stevens.
48 Ms Burnett had spoken to Mr Gelagotis, director of the defendant, on several occasions since February 2018. He confirmed the contents of his September 2017 statement exhibited to the plaintiff’s affidavit.
49 Ms Burnett was instructed by Mr Gelagotis that beyond what was in the circumstance investigation report, the plaintiff’s affidavit and affidavit of documents he swore on 14 January 2020, there were no documents left relating to the defendant as they were destroyed over time.
50 Ms Burnett emailed Mr Nerouppos on 2 and 6 December 2019 (exhibited) and had spoken to him on the phone once. He instructed her that he had an informal management role but was employed with a chemistry background at PathLab, having been headhunted. She contacted him after he was found by an investigator and emailed him directly after speaking to him on the phone. He cannot remember anything to do with the specific claim or worker, and only has vague recollections of his time with the defendant.
51 The 2 December 2019 email, which attached the Circumstance Report, read:
“Once you’ve had a review of it, feel free to call us back- my colleague Owain might need to go through some things with you in detail.
As I mentioned if you can’t remember anything, that’s ok.”
52 Ms Burnett also exhibited a file note of their conversation of 10 December last year in which she set out the following:
“… he just doesn’t remember her
Saliva testing - average number tubes 100 a day. Very involved. At least 3 full time staff members- with the owners since the beginning
Manually done
Not allowed to take a day off
Peter Gelagotis …
I can’t remember her specifically
Dorevitch Pathology
You don’t do 10,000 clicks in one go.
… .”
53 Ms Burnett emailed Mr Pharonides on 4 and 21 January this year. She confirmed his email address over the phone after contacting him on LinkedIn. He instructed her that he was employed at PathLab, and made redundant with the rest of the staff in March 2010.
54 Ms Burnett’s note of a conversation with Mr Pharonides on 13 December 2019 set out:
“Phillip
… Didn’t have details
Remembers Anna- remembers her name and that she was a scientist. Can’t remember any discussion about an injury or illness
Surprised when I said she thinks her GP spoke to him about her work load.
Site no longer exists at all March 2010 - vacated 2-3 weeks straight after that not functional after that.
Year after that. Flooring organisation operate it now.
Roles responsibilities- was operations manager.
… .”
55 In his email to Ms Burnett of 6 January 2020, Mr Pharonides advised:
“I have gone through the attached 3 documents this evening.
As the alleged events occurred in 2009 (almost 11 years ago) it is very difficult for me to recall this level of detail.
Unfortunately I’m unable to assist.
One thing that I can comment on though, is that Path lab Pathology was a very ethically run organisation. There is no way that Mr Kype Nerouppos would have asked a staff member to work additional shift hours outside of their core shift and not allowed the person to claim the relevant applicable penalties, including overtime.”
56 In his 21 January 2020 email, Mr Pharonides advised, as the alleged events took place eleven years ago:
“… it is literally impossible for me to recall this conversation or notes made by Dr. Gouras.
My apologies however I have no recollection of this case dating back from 2009.”
57 Ms Burnett engaged an investigator in July 2019 to find the contact details for Brian Stevens. As there were several people with that name in Victoria, as at 23 January 2020, they had been unable to determine which was the correct one. Neither of the other two witnesses to whom she had spoken were aware of Mr Stevens’ contact details following the end of his employment at PathLab.
58 Peter Gelagotis made a statement to the investigator on 15 September 2017.
59 Peter Gelagotis was the managing director of the defendant. He knew of the plaintiff, who was apparently employed by the defendant in November 2007 and ceased work when the company was sold on 1 March 2010.
60 The plaintiff worked a thirty-eight hour week and was entitled to a thirty-minute lunch break. She was paid $22.50 gross per hour.
61 During her employment with the defendant, the plaintiff did not report any injuries to management and/or her supervisor, nor did she make any complaints of injury on being made redundant.
62 Having been advised in the past few days of a WorkCover claim, Mr Gelagotis stated:
“We were shocked and disappointed by the actions of the claimant. There were never any complaints made by her again to our knowledge of any injury.”
63 The use of the pipette is a basic duty and they had never had any other similar claims from other staff members. Thirty to forty scientists would have been using a pipette in their duties. The plaintiff’s daily workload was insignificant compared to other scientific staff’s workload which, again, was not onerous.
64 The defendant company was ISO accredited and OH&S compliant, and had systems in place to identify potential manual handling issues. If there were concerns, they could have been brought to management’s attention in departmental meetings.
65 The plaintiff left the company in good health, with no issues with it, so to receive this form of claim following such a lengthy period of time “it is hard to comprehend and one questions its genuineness and credibility”.
66 In line with proper recordkeeping, the company had subsequently, over time, disposed of company records progressively and, as such, over a period of seven years there are few records remaining. Wage records are still available.
67 On reading the plaintiff’s Claim Form, Mr Gelagotis refuted she worked up to fifteen hours a day. This would never have occurred and her pay records would show she has not worked that many hours.
68 The plaintiff’s pay history for the period of employment indicated she worked up to seventy-six hours a fortnight, and for a few hours and for several paid periods, the plaintiff was paid double time.
69 There was a supplementary circumstance investigation report of November 2017 for which the plaintiff was interviewed on 10 and 15 November 2017 for about two hours. She signed a lengthy statement dated 20 November 2017.
70 The plaintiff also provided a three-page document titled “PathLab Mirjana Zivanovic Daily Job Requirements Expectations of Working Protocols and Working Conditions” dated 15 November 2017.
Submissions on behalf of the Plaintiff
71 Counsel for the plaintiff made the following submissions in relation to s23A of the Act:
(i)the Court has wide discretion to extend time if it decides it is just and reasonable to do so;[18]
(ii)the section makes it clear that all the circumstances of the case are to be taken into account and the factors specified in paragraphs (a) to (f) of ss(3) must be taken into account but are not exhaustive;
(iii)the approach to follow was the synthesising task as described by the Court of Appeal in Tsiadis;[19]
(iv)the Court should have regard to the conduct and position of both the plaintiff and the defendant, including the effect of the outcome on each of them. For example while prejudice is a relevant factor to take into account, it is not determinative;[20]
(v)historically, delay or ineptitude on the part of the plaintiff’s legal representative should not be held against the plaintiff, who should be entitled to rely on the competence of his lawyers;[21]
(vi)more recently, courts have considered that the prospect that a party has a cause of action against its former solicitors can be a relevant consideration; however, the weight given to it will depend upon the circumstances.[22]
[18]Bell v SPC Ltd [1989] VR 170
[19]See paragraph 14 of my judgment – legal principles
[20]Clark v McGuinness [2005] VSCA 108 at paragraph [39]
[21]Anisiena v H Crane Haulage Pty Ltd [1974] VR 670 at 670-675; Repco Corp Ltd v Scardamaglia [1996] VR 7 at paragraphs [12]-[13]; Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614 at 619-622
[22] Gordon (supra) at paragraph [86]
72 It was submitted that there was no delay on behalf of the plaintiff personally in terms of subparagraphs (a), (e) and (f). It was not in issue she was unaware of the WorkCover system and her rights while employed by the defendant. This was her first job in Australia and she was a new migrant. The circumstances of her contact with her former solicitors was also not in dispute. It was not suggested she became aware of any limitations period until that period had expired. It was also not disputed that she was under the impression, having been informed this was the case, that her WorkCover and serious injury application had in fact been issued.
73 Further, it was submitted the plaintiff put the defendant on notice about the injury. Her general practitioner, Dr Gouras, contacted Mr Pharonides of the defendant in April 2009, including via letter. The lawyers for the defendant had been in contact with Mr Pharonides as part of their investigations.
74 In summary, there is no evidence the plaintiff delayed or sat on her hands or was told of her rights and then did nothing for a period of time.[23]
Sub-section (b) – the extent to which, having regard to the delay, there is likely to be prejudice to the Defendant
[23]T23
75 Counsel for the plaintiff submitted the defendant had not established that there was likely to be actual prejudice to the defendant. In any event, if the Court finds that there would be some prejudice, that in itself should not lead to the refusal of this application, as all of the circumstances, when considered together, make it just and reasonable for the application to be granted.
76 Unlike so many of the applications under the Act, there are three witnesses who have been spoken to.[24]
[24]T18
77 In this regard:
(a) at least three witnesses are available to the defendant and they are highly critical and relevant.
(i) the VWA has been able to contact three employees of the defendant who are relevant to this proceeding and named in the various documents;
(ii) one of these is managing director, Peter Gelagotis, who said, in a signed statement, that the plaintiff:
(a) did not report any injury to management and/or her supervisor;
(b) did not make any complaints about the injury or system of work;
(iii)Mr Gelagotis also went into significant detail about the plaintiff’s workload (insignificant compared to other staffs’ workload) and the general workload of scientists of the facility (which was not onerous); the system of work (using a pipette on a daily basis); prior complaints (“we have never had any similar claims from other staff members”); the system for reporting complaints and manual handling systems (reporting to department heads and department head meetings); training and induction; the fact there were workplace guidelines and manuals. It was submitted, overall, he appears to have a very good recall about the issues in dispute;[25]
[25]T24
(iv)the defendant has payslips relating to the plaintiff’s employment;
(v)Mr Gelagotis claims that he has destroyed records progressively, but there was no information about what those documents are, when exactly he destroyed them and whether these would have been available to the plaintiff had the claim been lodged within the limitation period;[26]
[26]T24
(b)it was submitted there was no evidence about the extensiveness of the searches to locate Brian Stevens and no evidence that the defendant’s legal representatives have had any detailed discussions with the three witnesses they had spoken to;
(c)in the 2 December 2019 email to Mr Nerouppos, he was simply asked for only some general background information about the plaintiff and the workplace, and in an email to Mr Pharonides, it was said, “if you can’t remember anything that’s fine - we just need to know one way or the other”;
(d)there is only one phone call made to Mr Pharonides and while there is no evidence about the length of the call, the short length of the file note suggests there has been no extensive communication with him or interview or statement obtained.[27] Similar can be said of the conversation with Mr Nerouppos on 10 December 2019. There was no explanation as to why these individuals were not contacted in 2017 – on lodgement of the claim – when their memory may have been better;
(e)there is no evidence that the defendant’s legal representatives have made any contact with Dorevitch, the company that purchased the defendant, to make enquires about whether it had retained, or were in possession of, any documents following the sale. Insofar as documents were destroyed after August 2017, this prejudice is not the fault of the plaintiff, as the VWA were aware of the plaintiff and her allegations. It was submitted there was no evidence about what documents did exist that were destroyed (for example were there relevant documents such as risk assessments that were destroyed?);[28]
(f)there was no evidence that the defendant’s legal representatives have made any enquiries of any other former employees of the defendant;
(g)-(h) It was also submitted there was no prejudice to the defendant in terms of the medical evidence, with clinical records of treaters available which have been served on the defendant’s solicitors and examinations conducted on the defendant’s behalf from late 2017. On the basis of this material, the defendant had conceded the plaintiff had a serious injury.
[27]T26
[28]T27
78 Further, the defendant has been provided with a number of their own documents, including one headed “Saliva Hormone Testing”, which sets out general instructions for performing this work, which was part of the plaintiff’s duties, and a document headed “Saliva Hormone Testing Practitioner Reference Manual” dated October 2004, which details how the work was to be carried out. There is no evidence that the defendant’s solicitors have attempted to obtain instructions from any witnesses concerning the relevance of these documents.[29]
[29]T28
79 Counsel for the plaintiff submitted ss(c) does not appear to be relevant. In terms of ss(d), the plaintiff has continued to suffer the effects of her injuries notwithstanding the fact that she had recently returned to work. She has obtained extensive medical treatment and provided numerous reports to the defendant relevant to the claimed injury – ss(f).
Just and reasonable
80 Counsel for the plaintiff submitted it was just and reasonable for the Court to exercise its discretion pursuant to ss(2) to extend the period in which the proceeding may be brought for the following reasons.
81 It was submitted the VWA had delayed significantly investigating this case and locating relevant evidence:[30]
[30]T29
(i) in her WorkCover Claim Form dated 25 August 2017 and lodged on 31 August 2017, the plaintiff specifically named Brian Stevens as an employee of the defendant to whom she had reported her condition;
(ii) in September 2017, the insurer engaged an investigator who only contacted the defendant’s former managing director, Mr Gelagotis;
(iii) on 20 November 2017, the plaintiff swore a statement referring to three former employees of the defendant – Mr Pharonides, Mr Nerouppos and Mr Brian Stevens;
(iv) in September 2017, Zaparas Lawyers contacted WorkSafe and advised it that the plaintiff intended to lodge a serious injury application;
(v) the defendant made no attempt to contact Mr Nerouppos until December 2019 and Mr Pharonides until January 2020 – that is, over two years after the VWA was put on notice of their involvement.
(vi)on 10 December 2019, the defendant’s legal representatives spoke to Mr Nerouppos who, according to the file note, cannot recall the plaintiff specifically, but was able to provide details about the system of work, including the specific allegations in this case – “saliva testing – average number tubes, 100 per day. Very involved. At least three full-time staff members – with the owners since the beginning. Manually done. Not allowed to take a day off … you can’t do 10,000 clicks in one go”;
(vii)according to a file note dated 13 December 2019, Mr Pharonides recalled the plaintiff and said he “… remembers her name and that she was a (sic) scientist. Can’t remember any discussion about an injury or illness. Surprised when I said that she thinks her GP spoke to him about her work load”;
(viii)based on these file notes, the defendant’s witnesses recall the training, induction and system of work. What they did not recall is the plaintiff making complaints about injuries. Any prejudice about whether she sustained a work-related injury contemporaneously is addressed by the fact she sought contemporaneous treatment by Dr Gouras, which clinical notes confirm.
82 It was also submitted the Court cannot be satisfied the plaintiff has a strong cause of action against her former solicitors. Her evidence in this regard was not accepted by Mr Hadjina and the Court should not act on a letter from him to a third party, the LSC.
83 Whilst the prospect of success in suing a legal practitioner is a relevant factor in the exercise of the s23A discretion,[31] and a “viable, indeed, strong cause of action against the plaintiff’s solicitors” is a significant consideration in not granting the extension,[32] the allegations of negligence in the current proceeding are disputed. There have been no findings made by the LSC, who is investigating an open complaint. The plaintiff’s former solicitor, Mr Hadjina, denies the plaintiff’s allegations.
[31]Tsiadis (supra) at paragraph 27
[32]Gordon (supra) at paragraph [114]
84 It was submitted this issue “should be weighed up against the prejudice issue in this case where there was no evidence of specific prejudice”.[33]
[33]T18
85 In summary, it was submitted a fair trial is still possible. The defendant has not established there is significant prejudice to it. It has three witnesses available who are crucial. There is evidence that two of those witnesses recall the work process, which is the crux of the liability dispute. The general manager has sworn a statement giving detail about the manual handling practices and, in particular, the work system around the scientists and pipettes.
86 There are some relevant documents available, including wage documents, relevant as one of the allegations of overwork. There is over a decade of contemporaneous medical reports and clinical notes available to the defendant by which to run its claim.
87 The plaintiff’s contemporaneous treating doctors, Dr Gouras and Dr Blombery, are available to give evidence and can be cross-examined.
88 It was submitted the defendant has not produced evidence of specific prejudice by way of explaining what relevant documents did exist and no longer exist. It merely relies on an assertion that the documents have been destroyed.
89 In summary, it was submitted there were two significant issues confronting the Court – “probably the possible successful cause of action against the previous solicitors and a prejudice. It was simply said, there is a dearth – rather than a lack of evidence to identify what prejudice the defendant suffers.”[34]
[34]T30
The Defendant’s submissions
90 Counsel for the defendant submitted, on any measure there has been an inordinate delay, with the application for extension being made more than nine years after the accrual of the cause of action and more than three-and-a-half years after it became statute barred. The matter relates to events that took place ten to twelve years ago.
91 On the plaintiff’s account, the delay is due to the inexcusable failure of her former solicitors.
92 The defendant is specifically prejudiced by reason of:
(a) relevant documents have been lost or destroyed, or are no longer available;
(b) the memories of the witnesses that the defendant has been able to identify have been diminished/lost such that they are not able to give relevant evidence regarding the plaintiff or her allegations;
(c) the defendant company, trading as PathLab, was sold to Primary Health, trading as Dorevitch Pathology, in March 2010. Work at the site ceased shortly thereafter. No assessment can now be made of the premises/ equipment/processes for the purposes of this claim.
93 It was submitted the defendant is generally prejudiced by the inordinate delay and the recognised prejudice to a fair trial that flows from the passage of time.
94 Counsel for the defendant relied on the comments of McHugh J in Brisbane South[35] in terms of the underlying rationales for limitation statutes as set out earlier in my judgment under “Legal principles”.[36]
[35]Supra
[36]Brisbane South (supra) at paragraphs [9] and [10]
95 It was submitted the plaintiff seeks an indulgence by way of an extension of time under the Act and bears the positive burden of demonstrating that justice requires that an extension be granted.[37] In this regard, counsel relied on the comments of the Victorian Court of Appeal in Tsiadis.[38]
[37]Delai v Western District Health Service [2009] VSC 151 per Beach J at paragraph [121]
[38](Supra) at paragraphs [123]-[134]; paragraph 14 of my judgment
96 Reliance was also placed on the summary of the principles applicable to such applications in Axford v Gray & Anor[39] and in Davies v Nilson.[40]
[39][2013] VSC 664 at paragraphs [8]-[11]
[40]Davies v Nilson [2015] VSC 584 at paragraphs [43]-[44]
97 Counsel for the defendant also relied on the High Court summary of the approach to the exercise of the Court’s description set out in Prince Alfred.[41]
[41](Supra); paragraph 11 of my judgment
98 It was submitted the plaintiff bears the burden of establishing that a fair trial on the merits of the case can be achieved despite the loss of evidence.
Delay by the Plaintiff – Section 23A(3)(a)
99 The relevant delay was said to be between the accrual of the cause of action and the making of an application for an extension of time. The plaintiff lodged her serious injury applications on 23 January 2018 and made application to extend time on 3 December 2019.
100 It was submitted, in those circumstances, the relevant period of delay until the issue of the serious injury application was almost eight years, and until the extension application was made, was more than nine-and-half years.
101 The plaintiff does not allege that she was unaware of the cause of her fibromyalgia, positively asserting it related to employment. It was submitted that this is “not a case where there was some hidden causative element or consequence … sufficient of the facts were known to the plaintiff to put her on notice that her injuries were caused by the act or omission of the defendant/s … .)”.[42]
[42]Axfordv Gray& Anor (supra) per T Forrest J at paragraph [17]
102 Inexcusably, the plaintiff’s former solicitors allowed the time to lapse.[43] On the plaintiff’s account, there appeared to be a strong cause of action against her former solicitors in negligence. It was permissible for the Court to consider the extent to which the plaintiff has a viable cause of action against her former solicitors, with the weight to be attached, depending on all the circumstances of the case.[44]
[43]T31
[44]Tsiadis (supra) at paragraph [28]
103 Counsel relied on the comments of T Forrest J in Welsh[45] where His Honour reached the view, prima facie, that the plaintiff would appear to have a viable cause of action against her solicitors and that the prejudice occasioned by the rejection of her application, on the basis of substantial prejudice, may be ameliorated to some degree by that prima facie cause of action against her solicitors.[46]
[45](Supra) at paragraph [57]
[46]T51
104 Also in Damman v Peninsula Health,[47] whilst it was true there were difficulties faced by a plaintiff suing his solicitors, in the circumstances where the negligence of the solicitor appears reasonably clear-cut, the harshness of a refusal to grant the extension, where prejudice was high and incurable, is ameliorated by the likely success of an action against the solicitor.
[47][2012] VSC 572
Prejudice (b)
105 Counsel for the defendant relied on the following authorities in relation to the issue of prejudice:
106 In Van Gerven v Amaca Pty Ltd,[48] Beach J summarised the authorities on point:
“Prejudice is an important consideration in determining applications under ss 20(2) and 23A. The prejudice referred to in both sections need not be caused by the delay complained of, but need only have come about by reason of the lapse of time involved in the period of delay. Both sections require the Court to have regard not only to the established prejudice, but also to consider the extent to which there is likely to be prejudice. Mere delay itself, when inordinate, may be taken as evidence of prejudice.”
[48][2012] VSC 131 at paragraph [44]
107 As Beach J stated, where delays are inordinate, it may be taken to be evidence of prejudice in itself.
108 In Tsiadis,[49] Buchanan JA, held:
“The lapse of time since the occurrence of the accident alone warrants an inference of prejudice. Not only do memories fade; evidence which might have been available may be lost without any knowledge of the loss.”
(Footnote omitted)
[49](Supra) at paragraph [32]
109 In Maile v Rafiq,[50] Tobias JA said:
“… I am mindful in the latter respect of the general proposition that an identifiable prejudice may arise from delay which is not recognisable even by the parties; that evidence can disappear without anyone ever being aware of its existence; that witnesses’ and other parties’ memories will fade over time and that lines of enquiry will become cold … .”[51]
[50][2005] NSWCA 410
[51]Maile v Rafiq (supra) at paragraph [89]
110 In Ford Motor Company (Aust) Ltd v Kulic,[52] Kaye J found that in circumstances where there had been an initial delay of eight years and a subsequent delay once the plaintiff had knowledge of his rights, that not only was the entire delay inordinate, but that the delay of seven months, in the circumstances, was inordinate.
[52][1988] VR 152 at paragraph [157]
111 It was submitted that the delay was inordinate in the present case. Further, the effects of the delay was more pronounced in circumstances where the plaintiff did not lodge any claim until August 2017.
112 In Tsiadis, [53] Buchanan JA stated:
“In my opinion paragraph (b) of s.23A(3) does not limit the Court’s attention to prejudice which is present or is likely to occur in the sense that it is more probable than not that it will occur and the word ‘extent’ in the paragraph requires the Court to have regard to the degree to which prejudice is likely to eventuate.
If the defendant leads evidence of potential prejudice that would be occasioned by granting an extension of time, then it is for the plaintiff to show that the defendant’s evidence does not demonstrate prejudice.”
[53](Supra) at paragraph [23]
113 Smith J, in Repco Corporation Ltd v Scardamaglia,[54] stated:
“It must be borne in mind that the discretion relates to the making of an order which, if granted, will cause prejudice to the defendant in that the defendant will lose the benefit of the bar which the legislation otherwise affords.”
[54]Supra
114 It was submitted if the plaintiff was granted an extension of time, the defendant would lose the benefit of the limitation defence, which was an undoubted prejudice.[55]
[55]Axford v Gray & Anor (supra) at paragraph [20] per Forrest J
Specific prejudice
115 If an extension of time is granted, the defendant will dispute liability, both in negligence and breach of the regulations during the said period.
116 Counsel for the defendant referred to contents of the Claim Form of 25 August 2017, in terms of how she was injured and details of witnesses:
“I developed pain because I was doing repetitive work and sometimes I was working very long hours, doing the same job.
…
My symptoms came up progressively [first noticed injury or condition [August-September 2008.
…
At the beginning I was complaining to my immediate supervisor Brian Steven.
What are the names and daytime contact details of anyone who witnessed the incident?
I don’t know, but my supervisor knew I developed pain.”
117 Counsel particularised the various allegations of negligence set out in the Statement of Claim and also the alleged breach of the regulations.[56]
[56]T35
118 The claim alleging breach of the regulations includes the defendant did not undertake hazard identification and did not implement risk control measures.
119 It was submitted the lapse of time meant the defendant would be likely or potentially prejudiced in the proper defence of its proceedings due to:
(i)relevant documents have been lost, destroyed or are no longer available.
(a) policies and manuals;
(b) training and induction records of the plaintiff;
(c) plaintiff’s personnel file;
(d) comments book/s;
(e) ISO accreditation documents;
(f) OH&S documentation;
(g) any notes from departmental meetings;
(h) any notes from meetings of departmental heads;
(i)workplace guidelines for the reporting of injuries and WorkCover claims;
(j)records as to the tests performed during the relevant period, which could be expected to indicate the volume of tests undertaken.
120 Counsel for the defendant submitted the documents that had been recently discovered by the plaintiff – manuals, meeting minutes etc – are “signposts as to what material the defendant would have had and no longer has”.[57]
[57]T40
(a)it was submitted the memories of witnesses the defendant had been able to identify had been diminished/lost, such that they are not able to give relevant evidence regarding the plaintiff or her allegations:
(i)Mr Nerouppos, a scientist employed by the defendant from 2007 to 2010, described having an informal management role at the laboratory. The plaintiff deposes she considered him to have been her boss during the period of employment. He cannot remember the plaintiff or anything to do with her claim, and only has vague recollections of his time working for the defendant;
(ii)Mr Pharonides was employed by the defendant until March 2010 and has very limited recall of matters relevant to the defendant and does not recall any conversation with Dr Gouras in 2009;
(iii)the plaintiff states her supervisor was Brian Stevens prior to being supervised by Mr Nerouppos. She alleges that she reported her work-related injury to Mr Stevens. The defendant was unable to contact him prior to the plaintiff providing his mobile phone number by way of supplementary affidavit, sworn 24 January 2020;
(iv)Mr Gelagotis, managing director of the defendant, provided a statement to investigators in September 2017. George Pharonides, payroll administrator of the defendant, was also present during that interview and co-signed the statement. Mr Gelagotis has since confirmed the contents of the statement. He recalls the plaintiff, but had no knowledge of any complaints of injury;
(c)the defendant company was sold to Primary Health, trading as Dorevitch, in March 2010. Work at the site ceased shortly thereafter. No assessment can now be undertaken of the premises/equipment/ process for the purposes of this claim;[58]
(d)when the absence of documentation is considered in conjunction with the faded memories of the potential witnesses and the fact the premises and equipment are no longer available, it was submitted the actual prejudice to the defendant is very significant. Witnesses have little or no opportunity to refresh their memories from contemporaneous documents or by visiting the laboratory and sighting the equipment and processes.
[58]T32
General prejudice
121 It was submitted prejudice is presumed in a case of such delay. It is prima facie prejudicial to the defendant to commence proceedings outside the limitation period. Time inevitably erodes the memories and quality of any evidence that remains.[59] The unfairness in such a case is often not discernible and can be unknowable. It was submitted it was tempting to think that a fair trial can be had with what remains, but limitation periods are enacted upon the basis that unfairness steadily accrues with time.
[59]T49
122 There was no submission made in relation to ss(e) and ss(f), the defendant blaming the former solicitor’s inactivity rather than the plaintiff.
Conclusion
123 It was submitted the Court should not be satisfied that in all the circumstances it is just and reasonable to exercise its discretion to extend the period.
124 The defendant should not, by grant of extension, be burdened with the presumed and actual prejudice that the plaintiff’s former solicitors created. It was submitted the defendant was entitled to the protection of the limitation period. There is no difficulty in the plaintiff conducting her case against her former solicitors. She can simply give the evidence she would have given against the defendant and the effect of the presumed and actual prejudice would, and in the circumstances reasonably should, fall to the plaintiff’s former solicitors.
Overview
125 Having properly synthesised all the material considerations, in my view, it is just and reasonable to extend the time for the plaintiff to bring proceedings for damages.
126 Whilst there is general/presumptive prejudice with the delay in this case, in my view, there is not significant prejudice to the defendant.
127 There is the ability to have a fair trial – a trial that is acceptably fair, as Forrest J stated in Gordon.[60] As Dixon J pointed out in Holcombe v Hunt,[61] this finding, despite the possible implications of presumptive prejudice, is a powerful consideration in the exercise of the synthesis of the material considerations.
[60](Supra) at paragraph [79]
[61][2018] VSC 55 at paragraph [45]
128 There can be an acceptably fair trial, having regard to a number of available living witnesses in circumstances where the facts are relatively straightforward.
129 The defendant’s witnesses recall the training, induction and system of work. What they do not recall is her making any complaint of injury.
130 This is not a case where, in my view, it is crucial that the premises are no longer available for inspection. The system of work under which the plaintiff operated is commonplace in various laboratories.
131 Mr Gelagotis, the only witness asked to provide a detailed statement, soon after the claim was lodged in late 2017, described the use of pipettes as a “basic duty”, one performed by thirty to forty scientists at the premises during the day.
132 As counsel for the plaintiff submitted, Mr Gelagotis had a very good recall of relevant matters. Further, he has not identified the documents which are said to be lost or destroyed and has not been asked to comment on those documents that have recently been discovered by the plaintiff.
133 Although there was mention of Mr Pharonides in the plaintiff’s November 2017 statement, no attempt was made to contact him for over two years.
134 Mr Pharonides might not recall speaking by phone to Dr Gouras and being sent the letter, but that letter is evidence that conversation took place and that the defendant was put on notice of the plaintiff’s difficulties at an early stage. Mr Pharonides did however recall the plaintiff and he was operations manager with the defendant during the said period. He also had knowledge of the shift and overtime situation during that time. No statement has been taken from him.
135 Like Mr Pharonides, Mr Nerouppos’ involvement in the plaintiff’s claim was known to the VWA from November 2017 yet no attempt was made to contact him until over two years later.
136 While Mr Nerouppos cannot recall the plaintiff specifically, he was able to provide details about the system of work, including the specific allegations in this case as to the number of pipettes etc. He has also not been asked to provide a detailed statement, and the extent of his knowledge is only as set out in emails and notes, having been simply told on 2 December 2019, after having read the circumstance investigation report, to “feel free to call us back - my colleague Owain might need to go through some things with you in detail. As I mentioned if you can’t remember anything, that’s ok.”
137 Brian Stevens, the plaintiff’s immediate supervisor, was mentioned on the August 2017 Claim Form, yet contact with him was only made through the plaintiff’s efforts. There is no statement from him as to the relevant events.
138 Overall, I am not satisfied that all appropriate enquiries have been made of these potential witnesses for the defendant. Further, on the limited material that is available, there is sufficient evidence of the system of work for there to be an acceptably fair trial.
139 While Mr Gelagotis stated that the defendant had disposed of “company records” progressively, he gave no detail as to what these records included. The documents recently discovered by the plaintiff have not been shown to the defendant’s witnesses for comment.
140 There is no evidence of any attempt to contact Dorevitch as to the existence of any relevant documentation.
141 Given that one of the allegations is the plaintiff having to work excessive hours, the defendant has available to it the plaintiff’s timesheets and wage details for in the relevant period.
142 In my view, the defendant has not sufficiently made out the likelihood of significant prejudice; that is, it has not been made out to the extent which would justify the refusal of the application, having regard to the many factors which must be taken into account under the section.
143 Significantly, there is no issue on a medical basis of any prejudice, with the defendant having conceded the plaintiff has suffered a serious injury. Medical evidence is available from the plaintiff’s earlier treaters and there have been examinations arranged in a medico-legal context in more recent years by the defendant.
144 Clearly, by the granting of a serious injury certificate, the defendant is satisfied the consequences of a compensable injury in relation to both pain and suffering and loss of earning capacity are “serious”. The outstanding issue is clearly one of liability.
145 As Buchanan JA said in Tsiadis,[62] the plaintiff’s right to sue his former solicitors is a relevant consideration in an application for an extension of time, with the weight to be given to the availability of a cause of action against a solicitor depending upon the circumstances of each case.
[62](Supra) at paragraph [121]
146 However, as Forrest J commented in Gordon,[63] 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.
[63](Supra) at paragraph [86]
147 In Gordon, there was a comprehensive affidavit sworn by the plaintiff’s solicitor detailing Slater and Gordon’s handling of the file at the relevant time. There was also a letter from the plaintiff’s current solicitor to the LPLC which detailed minutely the manner in which the file had been handled by Slater and Gordon, comprehensively setting out the basis of any claim against that firm.
148 As Forrest J commented,[64] nowhere was there any answer for the solicitor’s conduct in letting the claim to become statute barred – it was fair to say it was a powerful if not overwhelming case against that firm and that it was not possible to see what defence the firm could mount to a claim against it.
[64](Supra) at paragraph [107]
149 In the present case, the likelihood of the plaintiff succeeding in an action against her former solicitor for professional negligence cannot be known with any precision,[65] unlike the situation in Gordon,[66] where Forrest J had no such difficulty.
[65](Supra) per Buchanan JA at paragraph [28]
[66](Supra) at paragraph [109]
150 There has been no finding made by the LSC.
151 As I commented during the hearing, the plaintiff’s evidence as to what happened in her dealings with her former solicitor and his version varies a great deal.[67] I disagree that it would be hard to see how the plaintiff could possibly fail against her former solicitors – or that it is hard to see a stronger case, as counsel for the defendant submitted.[68]
[67]T3
[68]T34
152 Although not in issue that the claim was not lodged and proceedings were not issued, the reason for this is in dispute – the former solicitor maintains he was never given instructions to do so and the plaintiff kept putting off giving instructions in this regard.
153 Further, 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.
154 As Buchanan J stated in Tsiadis:[69]
“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.”
[69](Supra) at paragraph [28]
155 Smith J made similar comments in Repco v Scardamaglia:[70]
“… 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. … .”
[70](Supra) at paragraph [15]
156 Taking into account all the evidence and having synthesised all material considerations, I have concluded it is just and reasonable, notwithstanding the possibility of prejudice to the defendant and the availability of a cause of action against the plaintiff’s former solicitors, to extend the period within which proceedings may be brought by the plaintiff.
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