Irene Podobnik v S and B Pty Limited (Formerly Known As Goldstar Cleaning Company (Acton) Pty Limited) [1994] ACTSC 35 (14 April 1994)

SUPREME COURT OF THE ACT

IRENE PODOBNIK v. S AND B PTY LIMITED (formerly known as GOLDSTAR CLEANING
COMPANY (ACTON) PTY LIMITED)
No. SC709 of 1993
Number of pages - 5
Limitation of Actions

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Limitation of Actions - application for extension of time - personal injury in the course of employment - Limitation Act 1985 (ACT), s.36 - test to be applied - whether just and reasonable to grant application.

Limitation Act 1985 (ACT), s.36

Daroczy v B and J Engineering Pty Ltd (In Liq) (1986) 67 ALR 1

HEARING

CANBERRA, 18 March 1994
14:4:1994

Counsel for the Plaintiff: Mr R Crowe

Instructing solicitors: Vandenberg Reid

Counsel for the Defendant: Mr B Meagher

Instructing solicitors: Blake Dawson and Waldron

ORDER

THE COURT ORDERS THAT:
Pursuant to Section 36 of the Limitation Act 1985 the period within which action may be taken on the cause of action herein be extended to the 3rd day of November 1993.

DECISION

HIGGINS J This is an application, commenced by Notice of Motion dated 2 February 1994, to extend time for commencing proceedings for damages for personal injury, nunc pro tunc, to 3 November 1993.

2. Power to extend time is conferred by s.36 of the Limitation Act 1985 (ACT). The test to be applied is that outlined by Kelly J in Daroczy v B and J Engineering Pty Ltd (In Liq) (1986) 67 ALR 1.

3. The plaintiff deposed that she was injured in the course of her employment as a cleaner with the defendant on 24 May 1983. She was then aged 27 years.

4. The injury allegedly occurred when the plaintiff was lifting a heavy trolley to empty it of rubbish. She experienced low back pain. If her account of the accident was to be accepted, a tribunal of fact might well conclude that the system of work was unsafe.

5. The plaintiff thereafter consulted medical practitioners and made a claim for workers compensation. The claim was investigated and paid by Royal Insurance Australia Limited ("Royal"). It seems payment was made in respect of a period between 6 June 1983 to 27 July 1983.

6. The plaintiff further deposes that she was, after about two months, still unable to return to work. Her employment was terminated. It is not clear why compensation payments were terminated, notwithstanding her apparent continuing unfitness for work.

7. There was further treatment by way of both chiropractic and physiotherapy. The plaintiff says that, at least in 1984 and 1985, she believed that the injury would clear up sufficiently to enable her to return to work.

8. She attempted employment during 1985, but terminated it because of the effects of her back injury. Her next attempt at employment was in 1989 and again she was unable to continue with that employment because of pain in the lower back.

9. Notwithstanding the length of time for which the plaintiff's back had troubled her, she did not seek legal advice until January 1991.

10. The normal limitation period had expired on 24 May 1989.

11. In her affidavit, the plaintiff cited two reasons for her failure to seek legal advice before January 1991. She said,
"I did not seek legal advice in relation to my back injury until

January 1991. The reason for this was that I always felt that the
injury to my back was not a serious injury although it did cause me
constant pain, but I always felt it would get better and I would be
able to rejoin the workforce. I was also fearful that if I instituted
any proceedings that they may not be successful and I would have a huge
legal bill to pay which my husband and I could simply not afford as at
the time of my injury we had three young children. However, in January
1991 I consulted Messrs. Vandenberg Reid Pappas and MacDonald regarding
the injury to my back as it had been some years since the injury and my
back was not getting any better and I was unable to return to the
workforce as I had hoped. I then saw Dr. Chandran once again in
February 1991 and had a further appointment with Dr. Ashman in April
1991."

12. During 1991, medical reports were obtained. In May 1992, the plaintiff was advised as to the likely cost of bringing a claim. It is not clear whether she was advised of the limitation problem. She says that she was unwilling then to proceed because of concern as to what would happen to her financially if she lost the case and suffered an order for costs.

13. In October 1992, the back pain persisting, she instructed her solicitors to obtain an opinion from counsel. That was received in July 1993. It advised that she had reasonable prospects of success.

14. On 20 December 1993, Dr Chandran operated on the plaintiff's back. Her back, according to her second affidavit, dated 18 March 1994, continues to cause significant pain.

15. There is reference in a medical report annexed to the affidavit of 2 February 1994 to a crush fracture of the T11 vertebra, apparently the result of a fall in 1989. The 1983 injury seems to have involved L4/5.

16. Dr Foo, in that report, expressed the opinion that the plaintiff's then current condition was related to the injury in May 1983, although it may have been further aggravated by the fall in October 1989.

17. The plaintiff's solicitor, Mr MacDonald, explained the delay between October 1992 and August 1993 as being due to difficulty in identifying the employer of the plaintiff in 1983.

18. This is not a case where the plaintiff could reasonably have been in doubt, at least after 1985, that her back condition was ongoing. She may have entertained some hope of spontaneous improvement, but I cannot accept that she had that belief as at May 1989. Indeed, the plaintiff does not, in terms, suggest that her decision not to seek legal advice before May 1989 was due to a belief that her injury was less serious than it was in reality.

19. Concern about legal costs was, I accept, a reasonable concern from the view point of the plaintiff, at least up until she sought legal advice in January 1991. She should, at that time have been reassured that she need not have committed herself to substantial costs unless she was likely to win the case.

20. In any event, the enquires made to enable her to form a view as to her prospects for success took from October 1992 until August 1993. I do not believe that the delay between January 1991 and October 1992 is satisfactorily explained.

21. However, against that is the serious nature of the injury and the apparent strength of the plaintiff's claim. The length of the unwarranted delay is, also, not great compared with the overall delay since the cause of action accrued.

22. The matter put in issue by the defendant was, primarily, whether the prejudice resulting to it from an extension of time was such that, on balance, the application should be refused.

23. At the time the plaintiff was employed by it, the defendant was known as Goldstar Cleaning Co (Acton) Pty Ltd ("Goldstar"). There were many companies in the Goldstar group which had similar names to the defendant. The number of companies did contribute to delay, at least between October 1992 and August 1993. That delay was not unreasonably contributed to by the plaintiff or her advisers.

24. Mr Giovanni Ciuffetelli was a director of Goldstar in 1983. Goldstar was a family company, of which Mrs Ciuffetelli was the only other director.

25. In 1984 the shares belonging to Mr and Mrs Ciuffetelli were sold. Effectively, Goldstar ceased operations at this time. The only remaining record held by Mr and Mrs Ciuffetelli is a copy of the Certificate of Incorporation dated 25 June 1980. Mr Ciuffetelli, not surprisingly, has no recollection of the plaintiff. However, Goldstar was insured with Royal and Mr Ciuffetelli deposed that any claim would have been forwarded to Goldstar's insurer.

26. The insurer is now known as Sun Alliance and Royal Insurance Australia Ltd. Following notice of the current claim, Mr Bahr, Royal's Claim Manager, made a search of the records of the insurer.

27. That search confirmed that a claim was made in 1983. It cost Royal $1,774.85, including $957.05 for "Investigations Expenses". The claim was finalised on 21 May 1984. The record located was a computerised summary. The file to which that summary relates was also sought.

28. Royal's system with completed files, at least in 1984, was that they were stored in a warehouse at Ultimo, New South Wales. Each group of completed files was assigned to a numbered box. They were stored in order of their date of closure. The claim file was allocated number 8350321. However, it was not present in the box to which it should have been allocated. It was not recorded on the list of files closed and allocated to storage boxes.

29. The plaintiff's 1983 claim was investigated by a firm or company known as "Nationwide Investigations". It is reasonable to assume that file no. 8350321 would have contained not only a claim form and a report of the accident in 1983, but also an investigator's report thereon.

30. Mr Bahr suggests that "Nationwide Investigations" went into liquidation in 1989. That statement is offered, it seems, to explain why a further copy of the relevant report cannot be obtained.

31. However, a search of the records of the Australian Securities Commission does not support Mr Bahr's assertion concerning the liquidation of "Nationwide Investigations". It may be, of course, that the investigators referred to changed names or business in 1989. I am not, however, positively persuaded that Royal could not obtain a copy of the report apparently made by "Nationwide Investigations".

32. Royal is the relevant party to complain of prejudice, because it will be the source of funds to pay the claim if it succeeds.

33. It is obvious that, as at May 1989, Royal had no relevant documents. It has no real lead as to any witnesses to, or concerning, the accident in question except the plaintiff. It has no medical records relating to the plaintiff. I do not consider that this latter consideration is, however, of any great significance. There is no reason to suppose that the records of the plaintiff's treating doctors are unreliable or incomplete.

34. It is obvious that such prejudice to Royal as now exists had already become entrenched by May 1989 and it has not got any worse since.

35. Further, such disadvantage as Royal now suffers derives in large measure from its own failure to preserve the relevant file in a retrievable form. It would be unfair to treat the plaintiff's application more adversely because Royal has lost its file.

36. It is a matter of balance but, on balance, I consider that it is just and reasonable to grant the plaintiff's application.

37. I make the order sought.

38. I will hear the parties as to costs.