David Joseph Bourke v Jordan Furniture Pty Limited [1991] ACTSC 75 (30 September 1991)

SUPREME COURT OF THE ACT

DAVID JOSEPH BOURKE v. JORDAN FURNITURE PTY LIMITED
S.C. No. 188 of 1991
Limitation of Time

COURT

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

CATCHWORDS

Limitation of Time - Personal injuries claim - Possible prejudice to defendant - Whether just and reasonable to extend limitation period.

Limitation Act 1985 (ACT)

HEARING

CANBERRA
30:9:1991

Counsel for the Plaintiff: Mr Meagher

Instructing solicitors: Messrs Gallens Crowley and Chamberlain

Counsel for the Defendant: Mr G. Parker

Instructing solicitors: Messrs Abbott Tout Russell Kennedy

ORDER

Time within which the plaintiff should have commenced proceedings, in respect of the cause of action referred to herein, be extended nunc pro tunc to and including 22 March 1991.

Costs of this application will be costs in the cause.

DECISION

This is an application for an extension of time to bring proceedings for damages for personal injury. A writ of summons was, in fact, issued on 22 March 1991.

2. The plaintiff's case is that on or about 10 April 1983, he was employed as a casual assistant at the defendant's furniture workshop at Queanbeyan in the State of New South Wales. On 12 April 1983, another employee, Michael John Farrelly, was operating a staple gun. He has deposed that the plaintiff threw some screws in his direction. This was in the course of some "fooling around". Farrelly fired the staple gun in the plaintiff's direction. Unfortunately, the staple hit the plaintiff in the vicinity of his left eye. He did not then seem to be seriously hurt.

3. The next day, 13 April 1983, the eye was troubling him so the plaintiff contacted a doctor.

4. The plaintiff made no formal claim on the defendant at this time. He was being paid "cash in hand" and also receiving unemployment benefits.

5. I will not detail the course of the injury. There was a subsequent operation which has been properly documented. There are permanent disabilities which are both objectively ascertainable and properly recorded by appropriate experts.

6. It seems to me that the plaintiff has a seriously arguable case for substantial damages.

7. The action was commenced after the expiry of the relevant six year limitation period. That period expired, assuming the date alleged by the plaintiff as the date of injury to be correct, on 11 April 1989.

8. At the time of the accident the plaintiff was only 18 years of age. He did not consult a solicitor originally as a result of fear of the consequences arising from the irregularities concerning his employment to which I have referred.

9. He first consulted a solicitor on 5 December 1989. Obviously enough, there has been delay since then.

10. The plaintiff has detailed the steps taken since that date. He first obtained counsel's opinion. This was given on 13 December 1989. He was not in receipt of legal aid and was asked by his solicitor to provide funds to enable the matter to proceed. Due to other financial and litigious commitments I will not detail, the plaintiff was unable to provide funds until about January/February 1991.

11. Although it cannot be said that such a reason for delay is so reprehensible and inexcusable as to amount to an abandonment of an intention to claim, it is not an impressive excuse for lack of action. It would, surely, have been open to have, at least, sent a letter of demand, or notice of intent to sue to the defendant or its insurer. However, that step was not taken till shortly before the Writ was issued.

12. The defendant has adduced evidence that all its relevant records have been lost or destroyed. However, it seems that, for obvious reasons, the employment of the plaintiff was unlikely to have been recorded in the first place. It may be inferred that the management of the Queanbeyan factory chose not to record the plaintiff's employment by the defendant because it was aware of the irregularities associated with it. However, there is no likely serious issue as to the existence of the relevant employer/employee relationship.

13. The defendant has, however, encountered a further difficulty which is more serious. Mr Scott, a director of the defendant, deposed that he rang the Claims Manager of QBE Workers Compensation (New South Wales) Ltd (QBE). The defendant had always insured with QBE for relevant purposes. Mr Scott was told that QBE had no record "that the Worker's Compensation Policy had been renewed for the year 1983". QBE's representative took the position that the policy had lapsed.

14. There had, however, been a claim for injury at work suffered by a Mr Weinert. He had been hurt on 25 January 1983. QBE indemnified the defendant in respect of that claim. Mr Scott says that he cannot understand how QBE could indemnify the defendant in relation to Mr Weinert's claim yet refuse indemnity in respect of the plaintiff's claim on the ground that there was no current policy. I agree with that proposition.

15. It is said, however, that the prejudice to the defendant is that it no longer has, if it ever did, the records necessary to prove its right to indemnity.

16. Section 36 of the Limitation Act 1985 (ACT) does require that a balance be struck between the interests of the plaintiff and that of the defendant. Clearly, it is not enough to reject a reasonable claim for extension of time to point to the loss by the defendant of an otherwise valid legal defence based only on the effluxion of the limitation period.

17. In my opinion, the plaintiff has a reasonable, though not overwhelming, claim for an extension of time. The countervailing prejudice is real. However, it seems to me that, on the information before me, it is of minor importance. It leads to the necessity to rely on a very powerful inference from similar facts, rather than documentary evidence, to establish the claim. It does not follow that there is sufficient prejudice to deny the claim to an extension of time.

18. It seems to me, on balance, that the situation which is of some disadvantage to the defendant, should not displace the prima facie claim of the plaintiff to prosecute his cause of action. It may be observed also that the lack of records may well have been contributed to by the conduct of the defendant in hiring workers it did not record as employees to enable both it and them to enjoy the advantages, albeit illegal, of "cash-in-hand" payments.

19. There will be an order extending nunc pro tunc to and including 22 March 1991 the time within which the plaintiff should have commenced proceedings in respect of the cause of action referred to above.

20. The costs of this application will be costs in the cause.