Stephen Mudford v Australian Capital Territory Electricity and Water [1996] ACTSC 43 (23 May 1996)

SUPREME COURT OF THE ACT

STEPHEN MUDFORD v. AUSTRALIAN CAPITAL TERRITORY ELECTRICITY AND WATER
No. SC 859 of 1995
Number of pages - 7
Limitation of Actions

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Limitation of Actions - application to extend time under s36 of Limitation Act 1985 (ACT) - whether 'just and reasonable' to extend time - 'nature and extent' of injury relevant factor - meaning thereof - prejudice to defendant due to delay not significant - plaintiff's claim not so likely to fail as to deny application on that ground alone - discretionary nature of order to grant extension of time.

Limitation Act 1985 (ACT), s36

Commonwealth Employees Rehabilitation and Compensation Act 1988 (Cth), s44
Safety Rehabilitation and Compensation Act

S and B Pty Ltd v Podobnik [1994] FCA 1433; (1994) 53 FCR 380
Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6; (1994)

179 CLR 297
Harris (as Administratrix of the estate of Denis Paul Hollins) v Commercial Minerals Ltd and Ors; Harris (as Administratrix of the estate of Denis Paul Hollins) v Auqal Pty Ltd and Ors, unreported, High Court of Australia, Dawson, Toohey, Gaudron, McHugh and Gummow JJ, 3 April 1996

Myer v Hammond (1984) VR 40
Commonwealth of Australia v Robert John Mewett, unreported, Full Court,

Federal Court of Australia, Spender, Cooper and Lindgren JJ, 31 August 1995
Commonwealth of Australia v Michael John Rock, unreported, Full Court, Federal Court of Australia, Spender, Cooper and Lindgren JJ, 31 August 1995
Commonwealth of Australia v Mark John Brandon, unreported, Full Court, Federal Court of Australia, Spender, Cooper and Lindgren JJ, 31 August 1995

HEARING

CANBERRA, 23 February 1996
23:5:1996

Counsel for the Plaintiff : Ms J Godtschalk

Instructing solicitors : Gary Robb and Associates

Counsel for the Defendant : Mr G Stretton

Instructing solicitors : ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:

The Court refrains from making a formal order at this time for the
reasons as set out herein.

DECISION

HIGGINS J This is an application to extend time pursuant to s36 of the Limitation Act 1985 (ACT) (Limitation Act) so as to enable the plaintiff now to commence proceedings for damages for personal injury against the defendant.

2. The facts accepted for the purpose of this application are as follows.

3. The plaintiff suffered an injury in the course of his employment with the defendant on 6 December 1985.

4. That injury, to the lower back, was occasioned when the plaintiff and, presumably, one or more other workers, lifted a 700-750kg pole off a workmate upon whom it had accidentally fallen. Two other employees suffered injury in the course of this incident and have taken common law proceedings, presumably within the relevant limitation period. Details of those claims were not put before me. I do not know when they were commenced nor the precise causes of action pleaded in those matters.

5. To succeed on such an application as this, the plaintiff must satisfy me, after a consideration of all relevant matters, particularly those set forth in s36(3) of the Limitation Act, that it is 'just and reasonable' to extend time as requested.

6. I will first consider those particular matters.

(a) Length of and reasons for delay
7. As the Federal Court held in S and B Pty Ltd v Podobnik [1994] FCA 1433; (1994) 53 FCR 380, the 'delay' referred to is the whole of the period from the accrual of the alleged cause of action until the making of this application.

8. The plaintiff deposed that on 9 December 1985 he attended his general practitioner, Dr Jarvis, for advice concerning his back injury. He was advised to go off work for two days. He did so. According to a report from Dr Jarvis, the plaintiff re-presented on 4 February 1986 complaining that pain had returned.

9. He was referred to Dr Newcombe, a specialist neurosurgeon. The latter diagnosed 'musculo-ligamentous strains'. He expected recovery.

10. After that there were periods of relief and return of pain, despite conservative treatment, including physiotherapy.

11. At least up until 1 December 1988, the plaintiff accepted Dr Jarvis' advice, supported by Dr Newcombe, that the effects of his back injury would 'settle'. Up to 1987 the plaintiff was on light duties.

12. In April 1994 he was promoted to leading hand. His duties involved physically heavier work and the back pain became more troublesome.

13. In July 1993 the plaintiff had sought legal advice. By then, subject to any right to seek extension of time under s36, the plaintiff's common law claim was statute barred. Further, before the decision in Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6; (1994) 179 CLR 297 was handed down on 9 March 1994, it would have seemed that any right the plaintiff had to sue had been extinguished on and from 1 December 1988 pursuant to s44 of the Commonwealth Employees Rehabilitation and Compensation Act 1988 (Cth).

14. The plaintiff accepted advice that he should make a claim for permanent impairment under that legislation, now known as the Safety Rehabilitation and Compensation Act (SRAC Act).

15. No doubt the plaintiff would, following 9 March 1994, have become aware that he might still have a potentially live cause of action as a result of Georgiadis (supra) subject, of course, to a successful application made under s36 of the Limitation Act.

16. He decided, nevertheless, to pursue his statutory claim. That was rejected on 3 August 1995. Comcare Australia, the statutory administrator of the SRAC Act, accepted the plaintiff's claim that there was permanent impairment but held that it had occurred before 1 December 1988 and, hence, fell outside of the statutory scheme under the SRAC Act.

17. It, therefore, appears that the delay until 1 December 1988 is explained in part by the plaintiff's hope, supported until then by medical opinion, that his condition would improve or, at least, 'settle'. Until April 1994, when his duties changed, the injury had not threatened his capacity to continue to engage in employment. That changed following April 1994.

18. By 1 December 1988 and, certainly, before April 1994, the plaintiff's hopes for improvement in his physical condition must have faded. Indeed, he conceded that, by May 1986, he knew the back condition was 'not going to go away'. Presumably, that means that as time went by he realised that the back condition had not only resulted in residual disability but that it was permanent and not likely to improve.

19. Thereafter, it seems to me, the plaintiff's attitude was that the permanent impairment he had suffered was tolerable in that he could, notwithstanding it, continue in his employment. That was a reasonable conclusion so long as he continued to perform the duties he was performing until shortly before April 1994.

20. Even so, the plaintiff took no steps then to assert his common law rights, if any, until after August 1995. His reason for that delay was a belief, no doubt supported by legal advice, that he had a good claim for permanent impairment under the SRAC Act. How that would have compared in quantum with the plaintiff's potential claim at common law I am not able to say. However, given the relative difficulty of then asserting a common law claim, compared with that of making a claim for permanent impairment under the SRAC Act, I cannot say that the plaintiff's choice to pursue the SRAC claim was unreasonable.

21. The rejection of that claim was a relevant change in circumstances. What otherwise may have seemed the easier option thereafter became more difficult and uncertain. It may then reasonably have seemed just as difficult to activate and then pursue a common law claim.

22. Whilst it is not of direct application, ACT legislation being more flexible, I note that the High Court in Harris (as Administratrix of the estate of Denis Paul Hollins) v Commercial Minerals Ltd and Ors; Harris (as Administratrix of the estate of Denis Paul Hollins) v Auqal Pty Ltd and Ors, unreported, High Court of Australia, Dawson, Toohey, Gaudron, McHugh and Gummow JJ, 3 April 1996, took a broad view of what constituted awareness of the 'nature and extent' of an injury for the purposes of extension of a limitation period.

23. First, the Court emphasised that the awareness referred to is the subjective awareness of the injured person. It is not an objective standard. Second, the 'extent' of an injury includes awareness of its consequences. Thus where a worker was aware of a condition, but unaware of its potential consequences, the worker would not be precluded from relying on the manifestation of those consequences later to support a reasonable explanation for delay.

24. A fortiori, where the test is the more flexible one adopted in s36 of the Limitation Act, the plaintiff's disappointed expectations so far as working ability and the availability of a lump sum SRAC claim, seem to me to be relevant and supportive of the reasonableness of the plaintiff's decision until August 1995 not to commence common law proceedings.

25. The delay from August 1995 to 12 December 1995, when notice of this application was filed, cannot be regarded as unreasonable. The plaintiff needed to instruct his solicitors so that the options of challenging the Comcare decision or seeking to revive his common law rights could be properly evaluated. Counsel's opinion was sought in October 1995. Advice was received in November 1995.

26. That period of delay is, to my mind, satisfactorily explained.

27. Of course, as Mr Stretton for the defendant submitted, after approximately May 1986 the plaintiff had made a deliberate choice to accept Comcare rather than common law remedies. Between 1 December 1988 and 9 March 1994, the plaintiff would have been advised that the common law option seemed to have been withdrawn. Thereafter, his options were complicated by the expiry of the limitation period in respect of his possible common law claim. It was the plaintiff's choice also to pursue what he then believed to be an available statutory remedy rather than the rights, whatever they then were, potentially re-activated by the Georgiadis decision.

(b) Extent of prejudice to the defendant
28. The delay itself is necessarily productive of some prejudice to the defendant, see Myer v Hammond (1984) VR 40.

29. In this case, that prejudice is somewhat ameliorated by the fact that the plaintiff promptly reported the accident and his injury to the defendant. Further, the history and ongoing effects of his injury have been monitored by or on behalf of the defendant continuously since that time.

30. In addition to those matters, the common law claims of the two co- workers, however pleaded, must have obliged the defendant to consider issues as to liability nearly identical to those which the plaintiff would now seek to raise. The defendant does not claim any loss of evidence or any more specific matter than the delay itself and the potential loss of the limitation defence, as working to its prejudice.

31. The extent of prejudice to be weighed in the balance is, in my view, not great.

(c) Conduct of the defendant
32. This is not relevant.

(d) Duration of any disability
33. There is no reason flowing from the plaintiff's injury or disabilities for the plaintiff not to have sued earlier.

(e) Extent to which plaintiff acted promptly after awareness of legal rights
34. The plaintiff does not claim ignorance of his legal rights at any time. The plaintiff promptly sought and followed medical advice. That advice initially caused him to expect improvement until about May 1986. Thereafter, until about April 1994, it caused him to expect no deterioration. Thereafter, he found the level of disability greater than expected despite continuing medical assistance precipitated by an alteration in his duties. He then promptly sought to pursue a remedy under the SRAC Act, until that option was complicated by the denial of that claim.

(f) Expert, legal or other professional advice
35. Expert advice is not relevant.

36. So far as legal advice was concerned, the plaintiff was aware of his legal rights to sue at common law. What he seems to have been unaware of was that his Comcare claim for a lump sum for permanent impairment would be disputed by Comcare. The plaintiff, however, sought that kind of advice in 1993. Given he then pursued the Comcare claim with his solicitors' assistance, it is unlikely that earlier advice would have made any difference to the pursuit of that option. Earlier advice might, possibly, have exhausted that option earlier and caused the plaintiff to consider pursuing the common law option in, at the earliest, April 1994 rather than August 1995 when it was in fact pursued.

Generally -
(i) Strength of case
37. So much for the enumerated factors. If I concluded that the cause of action was unlikely to succeed then, even if otherwise there would be a good case for an extension of time, refusal of the application would be appropriate. Of course, the more the apparent strength of the claim and the greater the extent of the damages to be awarded, the less just it would be to refuse an extension of time.

38. In this case, I know only that two other workers have sued in respect of the same incident as is relied upon by the plaintiff. That, together with the lack of detail as to the circumstances of the plaintiff's injury, enables me to conclude only that I am not positively persuaded that the plaintiff's case is weak or hopeless.

39. Certainly, the defendant does not assert that the plaintiff's cause, if litigated on its merits, would be so likely to fail that this application should be denied on that ground alone.

(ii) Value of cause of action otherwise foregone
40. The medical material indicates a permanent and significant impairment of the plaintiff's overall physical capacity of about 10%. That is a moderately severe disability. If proved at trial there would be a significant award of damages should the plaintiff succeed fully on liability.

Conclusion
41. Accepting that the plaintiff's case is not hopeless, nor the likely damages if he is successful merely slight, I would consider it just and reasonable to extend time as requested.

42. That is a discretionary judgment as Ms Godtschalk, for the plaintiff, reminded me, but it is, I think, also supported by the consideration that if Comcare is right, the plaintiff would otherwise receive no lump sum compensation at all for his injury when he was entitled to believe otherwise until August 1995.

43. I refrain from making a formal order pending the outcome of three appeals to the High Court against the decisions of the full Federal Court in Commonwealth of Australia v Robert John Mewett, unreported, Full Court, Federal Court of Australia, Spender, Cooper and Lindgren JJ, 31 August 1995 and two related actions. The High Court granted applications for special leave in those three actions on 4 March 1996.