Milica Ilovska v Kaycone Pty Limited Trading As Paragon Printing and Limro Pty Limited [1996] ACTSC 89 (19 August 1996)

SUPREME COURT OF THE ACT

MILICA ILOVSKA v. KAYCONE PTY LIMITED trading as PARAGON PRINTING and LIMRO
PTY LIMITED
No. SC737 of 1995
Number of pages - 7
Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Practice and Procedure - application for extention of limitation period - common law damages - factors influencing the courts discretion to extend limitation period - no point of principle.

Limitation Act 1985 (ACT), s36
S and B Pty Ltd v Podobnik [1994] FCA 1433; (1994) 53 FCR 380

HEARING

CANBERRA, 26 July 1996
19:8:1996

Counsel for the Plaintiff: Mr R. Crowe

Instructing solicitors: Pamela Coward and Associates

Counsel for the First Defendant: Mr M. Blunn

Instructing solicitors: Hunt and Hunt

Counsel for the Second Defendant: Mr R. Refshauge

Instructing solicitors: Deacons Graham and James

ORDER

THE COURT ORDERS THAT:
Time be extended to 19 March 1996, pursuant to s36 Limitation Act 1985 (ACT) to commence proceedings for damages for personal injury against the second defendant.
Time be extended to 25 October 1995, pursuant to s36 Limitation Act 1985 (ACT) to commence proceedings for damages for personal injury against the first defendant.

DECISION

HIGGINS J The plaintiff applies by notices of motion dated 14 June 1996 and 10 July 1996 respectively for orders pursuant to s36 Limitation Act 1985 (ACT) (LA) for extensions of the limitation periods otherwise applicable in relation to the defendants. I will refer to the defendants as "Paragon Printing" and "Limro" respectively.

2. The causes of action the plaintiff claims to have against the defendants arise out of events allegedly commencing in 1988.

3. At this stage, it is appropriate to point out that this is not a trial of these causes of action. Whilst the plaintiff must satisfy me that it is just and reasonable to extend the time bar, she does not have to prove her claims. Of course, if it appeared that, even if the facts were as she alleges them to be, her case was clearly hopeless, it would not be just or reasonable to extend the time bar even if otherwise it would be.

4. Accordingly, I refer to the facts alleged by the plaintiff without either acceptance or rejection of them at this stage of the proceedings.

The alleged facts
5. The plaintiff is a 41 year old Macedonian woman. She and her husband emigrated to Australia in 1987.

6. In January 1988, the plaintiff commenced work for Limro as a cleaner at a Narrabundah nursing home. She was given a power driven scrubbing machine to use. She had trouble controlling it. The brushes would suddenly "grab" the floor. On one evening, in May 1988, the machine both "grabbed" the floor and twisted to one side. The plaintiff felt pain in her back. Nevertheless, she continued to work for the remainder of the shift and one or two days thereafter. Whether she again used the scrubbing machine is unclear.

7. In any event, she had continuing pain in her back which worsened by 18 May 1988 to the extent that she was unable to get out of bed. She was taken to Queanbeyan District Hospital.

8. After she got out of hospital she reported the matter to Mr Bob Trpevski. He was a principal in Limro and fluent in Macedonian. On being told of the accident Mr Trpevski advised that, unfortunately he had no lighter work available but, if she got better, he would be happy to re-employ her. He did not advise her of her right to claim compensation nor cause her to fill out any documentation.

9. This incident is, of course, irrelevant to the existence or not of a cause of action, it is, however, relevant to the exercise of discretion under s36 LA. Thus, to take account of it in favour of the plaintiff, I need to be affirmatively satisfied on the material thus far presented that this event occurred. I also need to be affirmatively satisfied of any other facts which favour the exercise of the discretion to extend the time bar.

10. The plaintiff deposes that, at this time and for a considerable time thereafter, she was unaware of her rights to compensation whether under statute or common law.

11. She spoke little English and both she and her husband were unfamiliar with Australian law.

12. Her back did show some improvement, sufficient at least to take up employment with Paragon Printing of Turner ACT. That was about November 1988.

13. Her duties included packing books and other publications, binding books, making pads, gluing them and packing books and publications into boxes.

14. Much of the work involved packing boxes and putting them on pallets. That involved repetitive bending and lifting.

15. For the first two years the boxes were sometimes "very heavy". Thereafter, they were reduced in size, due, she says, to customer complaints that they were "too heavy".

16. The plaintiff suffered intermittent but low level back pain throughout this period. In about October 1989, after a particularly labour intensive packing and lifting job, wrapping and packing boxes of books, she suffered a "severe episode" of back pain.

17. She consulted Dr Niewiadomski, a general practitioner in Queanbeyan. He caused a CT scan to be done. Eventually, the plaintiff recovered sufficiently to return to work.

18. On her return, she showed her supervisor, whom she knew only as "Michael", the CT Scan and report thereon. She continued to work with intermittent lower back pain but, unfortunately, her back deteriorated to such an extent over time that she felt unable to continue to work. She ceased work in July 1994.

19. It was not until she had ceased work that Dr Niewiadomski raised with her the possibility that she might have a worker's compensation claim. Accordingly, she made a claim on Paragon Printing.

20. Having had no reply, she consulted Mr Brian Hatch, solicitor, of Pamela Coward and Associates. He advised that proceedings for compensation should be commenced against both Paragon Printing and Limro. Those proceedings were commenced on 2 November 1994.

21. Due to the plaintiff's state of distress and her poor command of English, Mr Hatch deposes that he was unable to obtain sufficient detail of the circumstances in which the plaintiff had suffered injury to form a view as to whether it was proper to commence proceedings for damages under common law.

22. Mr Hatch had further interviews, both with interpreters, on 15 December 1994 and 10 January 1995. Whilst some clarification was obtained, the plaintiff's emotional state made it difficult for Mr Hatch to obtain precise instructions.

23. It seems that this situation did not improve until the month before the hearing of the compensation proceedings.

24. The compensation proceedings were heard on 24 and 25 October 1995. An award was made against both the defendants.

25. As a result of hearing the evidence given in those proceedings, Mr Crowe, barrister, who appeared for the plaintiff, advised Mr Hatch that there seemed to be reasonable prospects at common law against Paragon Printers. He was not sure whether there were similar prospects in relation to Limro.

26. A writ was issued against Paragon Printers on 25 October 1995.

27. On 5 February 1996, Mr Hatch briefed Mr Crowe to advise on prospects for successfully suing Limro. He advised that Limro's solicitors should be informed that it was likely that Limro would be joined as a defendant. However, he also advised that a transcript of the evidence given in the compensation proceedings should be obtained and considered.

28. In fact, that application was made on 22 February 1996 and granted on 19 March 1996, thus joining Limro as a defendant.

29. Medical reports have been tendered. Dr Chandran, a neurosurgeon, reports a bulging disc at the L4/5 and L5/S1 levels. There is a protrusion at L3/4, noted after a 1989 scan, showing up in July 1994. That suggested, to Dr Chandran, a further injury in the meantime.

30. She was, in his opinion, not fit to return to any form of physical work.

31. Dr Raymond L G Newcombe, neurosurgeon, reported on 29 May 1995. He supported Dr Chandran's opinion.

32. It is, therefore, likely that, if the plaintiff succeeds in establishing liability, the claim will be a substantial one.

33. The plaintiff was cross-examined concerning her awareness of her rights. She maintained her contention that she became aware of her rights in relation to compensation only after she ceased work. There was no contrary evidence and her demeanour, so far as I could assess it, did not indicate any reason to disbelieve her.

34. It was suggested that she had a few days off in March 1988 when lifting a hot water bucket, also in the employ of Limro. She seemed to acknowledge that there had been such an incident.

35. Her conversation with Mr Trpevski was also challenged.

36. However, the only contrary evidence is that of Ms Cathryn Lane, solicitor, who deposes that Mr Trpevski advised her that he had no recollection and no note of any such conversation as alleged by the plaintiff.

37. That does not persuade me to disbelieve the plaintiff's sworn direct evidence on this issue.

38. It also was suggested that the plaintiff's solicitors should have concluded that there was a possible common law claim earlier than they did. That may be so but Mr Hatch was not challenged as to his assertions that the plaintiff's lack of language skills and emotional state prevented him from obtaining full instructions. I, therefore, do not doubt the accuracy of his sworn evidence.

39. Ms Carr, on behalf of Limro, did refer to the lack of prior notice. The first notice that Limro or its insurer had of a claim by the plaintiff was when a claim form dated 13 September 1994 was received. It referred to the cause of the injury as "nature and condition of employment with Limro at Narrabundah".

40. The records of Limro are said to contain details of the employment of the plaintiff and to note that she "left of her own accord" on 8 June 1988, but reveal nothing concerning her alleged injury.

41. Her supervisor at the time, Mr Steven Dimitrejevic, is apparently overseas although he may be returning to Australia.

42. Limro contends that it is, therefore, particularly prejudiced by its lack of records.

43. Paragon Printing makes no complaint of any particular prejudice.

44. However, the lapse of time necessarily creates some prejudice to a defendant's capacity properly to defend a plaintiff's claim.

45. In determining whether the plaintiff has established that it is just and reasonable to extend the time bar in respect of either or both of the defendants, I am required to have regard to all the circumstances disclosed by the evidence including the matters enumerated in s36(3) LA. I now proceed to do so.

(a) Length of and reasons for delay
46. It is the whole of the period since the accrual of the cause or causes of action claimed by the plaintiff which must be considered.

47. However inexcusable the delay, a plaintiff is entitled to sue within six years from the accrual thereof. Nor is it then relevant to that right that the defendant is prejudiced by that delay. However, once the time bar is exceeded, that delay is just as relevant as the period following it, see S and B Pty Ltd v Podobnik [1994] FCA 1433; (1994) 53 FCR 380.

48. In this case, the plaintiff seeks to excuse her delay by reference to her ignorance of her rights.

49. That is a relevant excuse but the delay since the accrual of the causes of action must still be weighed adversely to the plaintiff. It is a period of eight years in one case and nearly seven years in the other.

50. However, there is no evidence of any conduct on the part of the plaintiff towards either defendant analogous to a waiver of her rights.

(b) Extent to which, having regard to the delay, there is or is lik ely to be prejudice to the defendants
51. There is, necessarily, a degree of prejudice in any delay, becoming greater with the length of it.

52. The lack of records held by Limro is a serious disadvantage to it. It is tempered by the fact that, on the evidence before me, I am satisfied that the plaintiff, a recent migrant, reported her injury to a responsible officer of Limro, Mr Trpevski. He neither noted it nor caused the plaintiff to make out an accident report or claim form. He either made no enquiry about the allegedly faulty scrubbing machine or made no note of such action, if any, as he may have taken in relation to it.

53. Both defendants have been notified during 1994 of the events allegedly raising a cause of action and have had the opportunity in the course of a contested hearing to test the plaintiff's evidence with respect thereto.

54. There are contemporaneous medical records.

55. None of these matters eliminates the prejudice to which I have referred. It does ameliorate it to some extent.

(c) Conduct of the defendant
56. There is no relevant conduct of Paragon Printing save that no-one seemed to consider that, when the plaintiff lost time from work during 1989, she should be advised to make at least a worker's compensation claim.

57. The conduct of Limro is even more relevant. Mr Trpevski was aware that the plaintiff was ceasing work because of an injury at work. It was clearly serious. It raised the possibility that she would, for an indefinite period, be off work and without income. His failure to advise her of her rights to compensation was a dereliction of her employer's moral duty towards her as one of its employees.

(d) Duration of disability
58. The disability has been present at least since May 1988. It has been exacerbated and has worsened over the years until it led to loss of employment in 1994.

59. Apart from some episodes of particular exacerbation, the progress of the injury has been slow and gradual.

60. It is clearly permanent.

(e) Extent to which the plaintiff acted promptly and reasonably aft er awareness of her rights
61. Subjectively, the plaintiff acted promptly and reasonably once aware that she might have a legal claim.

62. It may be, had she been more diligent and less emotional, she would have become aware of her rights sooner. However, that possibility does not weigh heavily in the balance.

(f) Steps taken to obtain relevant advice
63. I note that the plaintiff sought medical advice and took time off work to recuperate as advised. It is difficult to believe that the employers did not, at least, request and receive medical certificates for time off.

64. It might have been expected that her medical practitioners would have suggested legal advice or the making of a claim to recover lost earnings or medical expenses. However, they may have assumed that a responsible employer would do so. Certainly, it is not their primary responsibility to ensure that patients assert their legal rights.

65. It does seem that the plaintiff took appropriate steps when she became aware of the need for or desirability of doing so.

Generally - Just and reasonable
66. In all the circumstances I have referred to above, it seems to me that it is just and reasonable to grant the orders sought by the plaintiff.

67. I have regard particularly to the seriousness of her injuries and the fact that her prima facie case for damages is at least arguable. The prejudice to the defendants in all the circumstances does not outweigh that consideration.

68. I therefore order that time be extended to 19 March 1996, pursuant to s36 LA, to commence proceedings for damages for personal injury against Limro. I further order that time be extended to 25 October 1995, pursuant to s36 LA, to commence proceedings for damages for personal injury against Paragon Printers.