Tracie Elizabeth Redman v Commonwealth of Australia [1989] ACTSC 42 (22 August 1989)

SUPREME COURT OF THE ACT

TRACIE ELIZABETH REDMAN v. COMMONWEALTH OF AUSTRALIA
S.C. No. 587 of 1988
Limitation Act 1985 (ACT)

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Limitation Act 1985 (ACT) - application for extension of time - no new question of principle.

Limitation Act 1985 (ACT), s.36

Daroczy v. B. & J. Engineering Pty Ltd (In Liq) (1986) 67 ACTR 1

Bell v. S.P.C. Ltd (1988) VR 123; (1989) VR 170

HEARING

CANBERRA
22:8:1989

Counsel for the Applicant: Mr. S. Walmsley
Instructed by: Messrs Snedden Hall & Gallop

Counsel for the Defendant: Mr. R. Williams
Instructed by: Australian Government Solicitor

ORDER

Pursuant to s.36 of the Limitation Act 1985 the time within which the abovenamed plaintiff may bring an action against the Commonwealth of Australia in respect of its alleged negligence in issuing her with ill-fitting shoes in or about the month of June 1979 be extended to 1 September 1989.

The plaintiff pay the defendant's costs of and incidental to the application.

DECISION

This is an application for an order that, pursuant to s.36 of the Limitation Ordinance 1985, the period within which the plaintiff may bring an action for damages for personal injuries allegedly suffered by her while in the employ of the defendant may be extended. The plaintiff gave evidence on affidavit and was cross-examined on that affidavit. I am not satisfied that her evidence was completely accurate but nevertheless accepted her as a witness of truth attributing any inaccuracies in her evidence to failure of memory only.

2. She gave evidence that she joined the Australian Federal Police on 4 June 1979 but this can hardly be correct because the Act establishing the Australian Federal Police was not assented to until 15 June 1979. She said that shortly after the amalgamation of the Australian Capital Territory Police Force and the Commonwealth Police Force she was issued with a pair of court shoes and a pair of lace-up style shoes. Neither pair, she said, had inner sole supports nor internal padding. They were issued in "B" fitting only. They did not fit her correctly but there were no others available.

3. Throughout her employment with the defendant she was, she said, required to work many continuous shifts as a guard at Parliament House as well as work shifts walking around plazas and malls. While on guard shift at the Parliament she was not able to sit and since 1980 her feet had been continuously sore so that eventually in September 1986 she required surgery which was performed on the second, third and fourth toes of both feet.

4. The plaintiff's claim is based in essence on two things. The first is that her employer issued her over a period of years with ill-fitting shoes, the second is that she was required to stand or walk for excessive periods during her service as a police woman. The reduction of her claim to these two basic elements would no doubt be insufficient if her case were to be dealt with as an action for damages but it is sufficient for the purposes of this application.

5. She deposed that it was her belief that up until 1986 the pain from which she was suffering in her feet was due to the long hours of standing. On being transferred to Melbourne in June 1986 she sought the advice of an orthopaedic surgeon, Dr Moran. The plaintiff alleges that he was generally uncommunicative about her condition and in her affidavit she deposed that it was not until February 1987 that she received advice from him as to the connection between her job, her hours and the shoes while in employment.

6. After surgery the pain did not disappear. She found that she could not carry out her work without pain. In April 1987 she was unable to go to work because of difficulty in walking and pain. She said she had not originally applied for workmen's compensation as she had not realised until early 1987 that the shoes, the lengthy standing and the pain in her feet were connected.

7. She alleges that in 1987 she developed sympathetic dystrophy and as a result now suffers from pain and swelling in both knees and pain in her hips. She has, she says, become extremely depressed and is receiving psychiatric treatment. She said that as she was not suffering loss of income before April 1987 due to her injuries, she did not seek to take an action at common law and had hoped that following the operation she would get well. In 1987 she said she was so depressed and upset that she did not seek legal advice in respect of her common law rights and it was only in January 1988 that she saw her solicitors.

8. Although it might appear from her affidavit that the plaintiff knew about a possible common law claim when or shortly after she learnt of the connection between her condition and her work, I am satisfied that she did not because, as appears from her oral evidence, it was not until December 1987 that she first saw her solicitor to ask whether or not she might have a claim other than her claim for workers' compensation.

9. I am satisfied that the plaintiff was suffering from depression, probably reactive depression, from at least as far back as 1986.

10. I am satisfied that she first made contact with her solicitor early in December 1987, probably by telephone shortly before 10 December. I am satisfied that she saw her solicitor on 10 December 1987 to discuss the legal position and that he then requested a detailed statement from her. He thereafter contacted an officer of the Australian Federal Police Association to enquire whether any other women members of the Australian Federal Police had complained about the quality and fit of shoes issued them in the course of their duty. He received a report from the Australian Federal Police regarding such complaints on 27 January 1988. He then sought appropriate expert advice and a report from Dr Moran. In cross-examination the plaintiff's solicitor seemed to concede that he received her detailed statement about 10 December 1987. He was asked, "Does your file enable you to identify the date on which the statement was delivered to your office?" He replied, "I think that was about 10 December". Counsel for the respondent then said, "10 December. All right?" Mr Andrews replied, "It falls in my file about that time." I prefer his direct evidence that he received instructions to act for the plaintiff on 10 December 1987 although I think the difference matters little, if at all.

11. At the time of his swearing his affidavit in support of the plaintiff's claim, Mr Andrews had not received a report from Dr Moran despite telephone reminders. Accordingly, he had arranged for her to see a consultant surgeon, Dr Arnold Mann, on 5 April 1988. Dr Mann reported on 6 April 1988 and thereupon a brief to counsel to advise and draw appropriate documents was delivered. The application under s.36 was filed promptly.

12. Several affidavits were filed on behalf of the defendant Commonwealth. They established, sufficiently for the purposes of this application, that in all probability relevant rosters, which included records of the plaintiff's duties between 1979 and 1983, had been destroyed and that those who were her superiors during that period would be unable to recall details of her many days of duty during that period and whether during those days she was required to stand for excessive periods or not. They also established the method of issue of shoes to members of the Australian Capital Territory Police Force and, subsequently, of the Australian Federal Police. It appears that it might have been possible, had the records still existed, to establish whether the plaintiff had complained about any shoes that were issued to her. But actual oral or written complaints that the issue of ill-fitting shoes caused her damage seem to play no part in her case as I understand the material placed before me. She says, and I accept prima facie, that up until 1986 it was her belief that the pain she was suffering in her feet was due to the long hours of standing.

13. A further affidavit, that of George Davidson, tends to establish that salary advice sheets in respect of the payment for the period before 24 September 1980 could not be located. It appears that subsequent salary advice sheets indicate only the areas of deployment of the plaintiff, that is whether she was working, for example, at Embassies. It seems unlikely that earlier salary sheets would have given more information than that and it is difficult to comprehend how the existence of those salary sheets would have afforded matters in defence of the plaintiff's claim. Of course, it is possible that some relevant material might appear from those documents and I take this into account on behalf of the respondent.

14. Dr Smyth, who conducted the medical examination of and prepared the report on the fitness of the plaintiff for appointment stated, not surprisingly, that he had no personal recollection of examining the plaintiff and would need to rely on her statement of personal medical history taken at the time of the examination. The result of the examination was that the plaintiff met the general medical standard. In answer to questions whether she had ever suffered or was suffering from swelling of the feet of the ankles, disorder of the limbs or spine, flat feet or injury or fractures of bones, she replied, "No.". Dr Smythe also stated that had the plaintiff consulted him at any time after her initial medical examination, as she was entitled to do, and had he been satisfied that the condition of her feet was caused or aggravated by shoes supplied to her by the Australian Federal Police, he could and would have ensured that appropriate steps were taken to obtain satisfactory footwear for her to enable her to continue performing her duties. He has no recollection of having been consulted by the plaintiff in this regard. But again it does not appear that the plaintiff alleges any failure by the defendant in respect of medical examinations or complaints made to a medical officer in respect of her condition.

15. So far as is relevant s.36 of the Limitation Act 1985 reads:

"36.(1) This section applies to any action for
damages where the damages claimed consist of or include
damages in respect of personal injuries to any person.
(2) Where an application is made to a court by a person
claiming to have a cause of action to which this section
applies, the court, subject to sub-section (3) and after
hearing such of the persons likely to be affected by
that application as it sees fit, may, if it decides that
that it is just and reasonable so to do, order that the
period within which an action on the cause of action may
be brought be extended for such period as it determines.
(3) In exercising the powers conferred on it by
sub-section (2), a court shall have regard to all the
circumstances of the case including (without derogating
from the generality of the foregoing) the following:
(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 conduct of the defendant after the cause of
action accrued to the plaintiff, including the
extent, if any, to which the defendant took 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 or 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 he may have received.
(4) The powers conferred on a court by
sub-section (2) may be exercised at any time
notwithstanding -
(a) that the limitation period in respect of the
relevant cause of action has expired since the
cause of action accrued; or
(b) that an action in respect of such personal
injuries has been commenced.
(5) ..."

16. In Daroczy v. B. & J. Engineering Pty Ltd (In Liq) (1986) 67 ACTR 1 I discussed the section at some length. I do not see any reason to depart from what I said there.

17. During the course of argument reference was made to Bell v. S.PC Ltd (1988) VR 123, a decision of Brooking J. affirmed on appeal by the Full Court of the Supreme Court of Victoria (1989) VR 170. There the Supreme Court of Victoria was dealing with an enactment which, for practical purposes, is exactly the same as that which I am required to consider. But I do not understand the Court to have decided any more than that it is for an applicant to show that it is just and reasonable that the time within which he or she might bring an action should be extended. As I indicated in Daroczy's case the term "just and reasonable" may be equated to "fair and reasonable".

18. Turning to the matters which I am required to consider under s.36(3) of the Act I am satisfied that the reasonfor the delay, at least until April 1987, was the plaintiff's ignorance of the connection between her work and the condition from which she was suffering. I am satisfied that the fact that she was not losing income for a time thereafter, coupled with the fact of her continuing depression accounted for the further delay until December 1987.

19. Counsel for the defendant suggested in cross-examination that the plaintiff must have known about workers' compensation having regard to her experience and the experience of members of her family. But I accepted her evidence that she did not.

20. As to the extent to which the delay would be likely to prejudice the defendant, it would, of course, be impossible to say that the delay would cause no prejudice, but I am unable to see that the material placed before me is such as to warrant the conclusion that the prejudice which the defendant will suffer would be such as necessarily to involve the refusal of the application. In any event it seems to me to be quite likely that the plaintiff's claim will be based on a continuing course of conduct on the part of the defendant.

21. Nothing in the material before me indicates that further consideration need be given to sub-paragraph (c) of s.36(3) of the Act.

22. I am satisfied that the plaintiff's disability began shortly after the first issue to her of shoes by the defendant, if that issue was in fact the initial accrual of the cause of action. Thereafter the disability continued with increasing severity until she sought advice as to whether she had a common law claim. It was compounded by the depression from which she began to suffer at least as far back as 1986.

23. In my opinion the plaintiff acted promptly and reasonably, having regard to the problems occasioned by lack of communication by her treating surgeon, once she knew that the conduct of the defendant, to which her alleged injury is said to be attributable, might be capable of giving rise to an action for damages. There was some delay between the initial consultation with Mr Andrews and the bringing of the application, but in the nature of things that delay was reasonable and, to a large extent, prudent.

24. The plaintiff did not take steps to obtain relevant medical, legal or other expert advice until December 1987 but this is to be accounted for by her ignorance of the legal situation and, I think, in some measure by the fact that policewomen no doubt think that sore feet are one of the occupational hazards of police work.

25. In all the circumstances I am satisfied that the plaintiff has made out her case and there will be an order accordingly.