Christopher Pye v Sci Operations Pty Limited Trading As Smorgon Arc [1997] ACTSC 71 (25 September 1997)

SUPREME COURT OF THE ACT

CHRISTOPHER PYE v. SCI OPERATIONS PTY LIMITED trading as SMORGON
ARC
No. SC 382 of 1997
Number of pages - 7
Limitations

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

HIGGINS J

CATCHWORDS

Limitations - Application for extension of time - Personal injuries - Cause of action arising in NSW - 1987 workplace accident - Whether material facts of decisive character not within means of knowledge of applicant at relevant time - Continuing back pain - Unaware of structural spinal damage until 1995 - "Evidence to establish the cause of action" - At least arguable - Date upon which plaintiff acquired means of knowledge of relevant material facts - Claim brought too late - Limitation Act 1985 (ACT), ss56, 57 - Limitation Act 1969 (NSW), ss14, 58(2).

Limitations - Application for extension of time - Personal injuries - Cause of action arising in NSW - 1992 workplace accident - Whether just and reasonable to extend time - Plaintiff has onus to explain delay in bringing proceedings both before and after limitation period expires - Whether prejudice to defendant - Presumptive prejudice arising from delay - No evidence of disadvantage - Plaintiff unaware of legal rights - Also unaware of nature and extent of injury until 1995 - Oversight by plaintiff's solicitors causing further delay - Claim forms completed and copies taken by plaintiff - Time elapsed since defendant entitled to assume claim statute-barred - Potential disadvantage to plaintiff if denied opportunity to sue - Leave granted to bring action out of time - Limitation Act 1985 (ACT), ss36, 56, 57 - Workers Compensation Act 1987 (NSW), s151D(2).

McIntosh v Southern Meats Pty Ltd, (Higgins J, Supreme Court, Australian Capital Territory, 26 February 1996, unreported)

S & B Pty Ltd v Podobnik [1994] FCA 1433; (1994) 53 FCR 380

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 70 ALJR 866

HEARING

CANBERRA, 27 June 1997 (hearing), 25 September 1997 (decision)

25:9:1997

Counsel for the Plaintiff: Mr B Meagher

Solicitor for the Plaintiff: Scott Sheils & Glover

Counsel for the Defendant: Mr C McKeown

Solicitor for the Defendant: Elrington Boardman Allport

ORDER

THE COURT ORDERS THAT:

1. The application for leave to extend time to bring an action in relation to the 1987 injury be refused.

2. The application for leave to bring an action out of time in respect of the 1992 injury be granted.

DECISION

HIGGINS J

This is an application, pursuant to the Limitation Act 1985 (ACT) (ACT Limitation Act), dated 28 May 1997 for an extension of the time within which to bring an action for a personal injury sustained in 1987 and for another injury sustained in 1992.

The plaintiff's first proposed claim refers to a work accident which, it is alleged, occurred at the defendant employer's premises at Queanbeyan in the State of New South Wales on 9 February 1987.

The plaintiff says that on that day he was using a crane to shift a steel cutter to a new location when the chain came loose and the cutter fell on him. He sustained a laceration to the head and groin, back strain and bruising to the thighs and hip. That is the 1987 injury.

A claim form dated 11 February 1987 was completed by the defendant and forwarded to its insurer. The report was consistent with the plaintiff's claim as now alleged.

The plaintiff, who had been employed by the defendant since 1971, lost four days from work as a result of the work accident in 1987. He expected to make a recovery sufficient to enable him to continue in that employment. He was then unaware of the limitation period in respect of common law proceedings.

The back injury continued to cause the plaintiff pain from time to time but did not prevent him working.

Then, in 1992, he suffered at the same work place a rotator cuff injury to his left shoulder. It occurred when he was throwing a chain onto the back of a truck. That is the second accident included in the proposed claim. I refer to it as the 1992 injury. He was referred to Dr Madew, a general practitioner at Queanbeyan. He also complained of the state of his back. As a result, MRI and CT scans were recommended but the defendant's doctor declined to support that recommendation. Consequently, the defendant's insurer would not pay for it. It was eventually done, at the request of the defendant's doctor, on 20 September 1995. The report of those scans detailed various apparent spinal defects at C5/6, C6/7 and C7/T1. Obviously, the plaintiff cannot be blamed for the delay in obtaining those scans.

Dr Raymond Newcombe, a specialist neurosurgeon, examined the plaintiff on 25 October 1995 at the request of the defendant's doctor. Although referring to the 1987 and 1992 injuries, and the continuation of symptoms since then, Dr Newcombe did not express an opinion as to the relationship between the accidents mentioned and the spinal defects noted on the report of 20 September 1995.

It is clear that by 1995, the plaintiff had developed a serious back condition. That developing condition by then had compromised the plaintiff's previous expectation of continued employment.

As a result of that situation, on 30 November 1995, the plaintiff instructed his present solicitors to commence such legal proceedings as might be appropriate. He was advised that a common law claim might well be open but that he should await an evaluation of his long term injuries and likely future work capacity before doing so.

Clearly, it would be necessary to consider the contribution of each accident to the plaintiff's condition as well as the economic worth of pursuing his common law rights rather than his statutory rights to compensation.

There is, also, an affidavit from Mr Peter Sheils QC, senior partner of the firm of solicitors acting for the plaintiff. He deposes that an employed solicitor of the firm had, on 5 December 1995, been given instructions to brief counsel to draw a statement of claim and an application to extend time to sue for damages for the injuries sustained in the two work accidents. The employed solicitor failed to carry out those instructions and also failed to report that omission to his supervising partner. Counsel was not, in fact, briefed until 26 November 1996. Counsel's advice was received 11 February 1997 but even then, no proceedings were commenced. It was not until 19 May 1997, after the employed solicitor left the firm's employ, that his neglect was discovered.

The defendant does not claim any particular prejudice arising from the delay in commencing these proceedings, save for the necessary consequence of the delay itself. That delay is, of course, ameliorated by the fact that the accidents had been promptly notified to the employer and its insurer shortly after their occurrence. The continuation of the plaintiff's physical condition and the occurrence of the two work injuries are not, therefore, matters of which the employer or its insurer claim ignorance, though, of course, the intention of the plaintiff to bring common law proceedings was not made known till 28 May 1997.

However, it is not the limitation period of six years extendible pursuant to s36 of the ACT Limitation Act which is currently relevant. The causes of action to be sued upon and in respect of which the extension of time is sought, arose in the State of New South Wales.

The relevant law relating to limitation

The ACT Limitation Act, s56, provides,

If the substantive law of another place being a State, another Territory or New Zealand, is to govern a claim before a court of the Territory, a limitation law of that place is to be regarded as part of that substantive law and applied accordingly by the court.

Under s57, if that limitation law confers on a court of that other place a discretion to extend a time bar it shall be exercised "in the matter in which it is exercised in comparable cases by the courts of that place".

In McIntosh v Southern Meats Pty Ltd (Supreme Court, Australian Capital Territory, 26 February 1996, unreported), I concluded that s56, though inappropriately expressed, has the effect of applying, under the law of this Territory, the limitation law of the place within which the cause of action arose as if the action had been commenced in that jurisdiction.

In this case the cause of action alleged to arise from the 1987 accident occurred before the commencement of subs151D(2) of the Workers Compensation Act 1987 (NSW) (WC Act). That subsection gave effect to a legislative intention that no action should be brought in respect of a work injury after three years from the date of the injury giving rise to that cause of action, unless leave of the court in which proceedings were to be taken was obtained. It is relevant, however, to the 1992 injury.

The limitation period applicable to the cause of action alleged to arise from the 1987 injury, is six (6) years from "the date on which the cause of action first accrues to the plaintiff" see s14, Limitation Act 1969 (NSW) (NSW Limitation Act).

Subsection 58(2) of the NSW Limitation Act permits such time bar to be extended, if the action claims damages for personal injury, as this action does, if it appears to the court that,

(a) any of the material facts of a decisive character relating to the cause of action was not within the means of knowledge of the applicant until a date after the commencement of the year preceding the expiration of the limitation period for the cause of action; and

(b) there is evidence to establish the cause of action, apart from any defence founded on the expiration of a limitation period,

the court may order that the limitation period for the cause of action be extended so that it expires at the end of one year after that date ...

The plaintiff contends that a relevant material fact was the nature and extent of the back injury of which he now complains. He gave evidence that, after 1987, he could, though with difficulty, continue in his pre-accident employment. That situation altered in 1992 when on 3 June 1992, the plaintiff suffered a further work related injury.

Subsection 151D(2) of the WC Act applies to that latter injury insofar as it is said to give rise to a further cause of action.

That latter injury, though not directly impinging on the back injury, led to tests being recommended, though these were not performed until 1995. The result of those tests supported the proposition that there had been structural damage to the plaintiff's spine. That damage was at least arguably caused by the accident which resulted in the 1987 injury. It is not clear whether or not the accident resulting in the 1992 injury played any aggravating role as such in relation to that pre-existing injury.

I accept, as a matter of fact, that the plaintiff did not become aware of the true nature and extent of his back injury until 1995 when the test results were known. I accept that he was, of course, aware of the continuing episodes of pain in his back. However the material fact for present purposes is that he was not aware until then that the continuing pain stemmed from structural spinal damage.

That awareness must have arisen during or shortly after September 1995, when the scans were obtained.

Certainly, by the time the plaintiff consulted solicitors on 30 November 1995, he had gained the relevant means of knowledge of the nature and extent of his back injury. That being as I accept it was a material fact of a decisive character within the meaning of s58(2) of the NSW Limitation Act.

The time to bring an action in respect of the 1987 injury expired, I am satisfied, on 9 February 1993.

The "material facts of a decisive character" were not within the means of knowledge of the plaintiff until after 20 September 1995. Thus subs58(2)(a) of the NSW Limitation Act is satisfied so far, at least, as the time element is concerned.

That there is evidence to "establish the cause of action" seems to me to follow from the plaintiff's description of the accident. The equipment he was using, if his evidence is to be accepted, would seem to have been either faulty or unsafe in some other respect.

It is not necessary to form a view pre-empting the findings of a trial court to conclude that "evidence to establish" a cause of action is present if it appears that there is evidence which, if accepted, would, at least arguably, establish that cause of action. It seems to me subs58(2)(b) is, therefore, also satisfied.

However, the power to extend the time bar is limited. It is limited to the grant of an extension of time for no longer than "one year after that date". "That date" is a reference to the date upon which the plaintiff acquired the means of knowledge of the relevant material facts.

Mr McKeown, for the defendant, contends that, even apart from any discretionary consideration, the time bar irrevocably expired at the least by 30 November 1995, if not earlier.

It would follow from that submission that this Court has no power to extend the period for commencing an action to recover damages for the 1987 injury beyond 30 November 1996.

A fortiori, of course, if the facts in question were within the means of knowledge of the plaintiff before 30 November 1995 then the date to which an extension of time may be made is even earlier. An action in relation to the 1987 injury was clearly not commenced as at 30 November 1996.

Unfortunately for the plaintiff, I can see no persuasive answer to this submission, even accepting as I do, that the results of the MRI and CT scans did not relevantly come to the plaintiff's attention until between 20 September 1995 and 30 November 1995.

Insofar as the application for extension of the limitation period relates to the 1987 injury, it must be refused.

The 1992 Injury

Subsection 151D(2) WC Act provides for a materially different test than s58 NSW Limitation Act. It is also, of course, a relevant limitation law. I commented on the application of it in McIntosh v Southern Meats Pty Ltd (supra). I noted that to be granted leave to commence proceedings out of time under that provision a plaintiff must satisfy the court that it is just and reasonable to do so.

That is a similar test to that applied to an application to extend time under the ACT Limitation Act s36. That test was explained in S & B Pty Ltd v Podobnik [1994] FCA 1433; (1994) 53 FCR 380.

However, there is one significant difference. The time bar to which s36 ACT Limitation Act applies is six years. The time bar prescribed by subs151D(2) is three years.

It is incumbent on a plaintiff to explain the delay in bringing proceedings including the delay during the relevant limitation period as well as after its expiry. After the expiration of a relevant limitation period, a defendant may rely on prejudice suffered during the period before expiry as well as after to support a contention that it would not be just and reasonable to extend time.

Another factor, quite apart from actual prejudice shown, is the presumptive prejudice that arises from delay. That prejudice, as pointed out by McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 70 ALJR 866, must include the consideration that, following expiration of the time bar, a defendant will be entitled to assume that the plaintiff intends to make no claim and so to arrange his, her or its affairs accordingly. The longer that assumption is permitted to remain undisturbed, the greater the injustice to a defendant in reversing it.

In this case, the defendant has adduced no evidence of any particular disadvantage flowing from the delay since this cause of action accrued.

Nevertheless, the cause of action became time barred on 3 June 1995.

The reason for delay up to that time, and, indeed, until 30 November 1995 when the plaintiff instructed his present solicitors, is that, until then, the plaintiff did not know of his legal rights. Not until 20 September 1995, at the earliest, was he aware of the nature and extent of his back injury insofar as that was relevant to his decision to seek legal advice. He had considered that so long as he could work he did not need to prosecute any sort of claim.

After he sought legal advice, of course, that reason was no longer applicable. Obviously, if the plaintiff had then wished to sue as soon as possible, the process of gathering sufficient advice and evidence would necessarily take some months. That should not have prevented the plaintiff's solicitors putting the defendant on notice that a claim might be made. Indeed, such notice ought routinely to be given to avoid or lessen prejudice to the defendant by reason of loss of evidence or a continuation of the legitimate assumption that the plaintiff did not intend to sue.

In this case, due to the oversight of the solicitor handling the matter, no steps were taken to brief counsel to advise until 26 November 1996. Even then, though advice was received on 11 February 1997, no action was taken by that solicitor. His oversight was not discovered until 19 May 1997, after he had left the employ of the firm of solicitors acting for the plaintiff.

Oversight by solicitors does not favour refusal of an extension of time any more or less than delay by a party personally. Insofar as a deliberate decision not to pursue rights of which a plaintiff is aware may militate strongly against a grant of an extension of time, mere oversight, whether of the party personally or through solicitors, lacks that deliberate character. However, it does not mean that such delay is not to be attributed to the plaintiff albeit that it may, in this case, be characterised as inadvertent rather than deliberate delay.

Prejudice to the defendant is particularly relevant. Had the plaintiff not advised the insurer or his employer of ongoing problems they would have had no reason to preserve evidence as to the happening of the relevant injury or to monitor the plaintiff's continuing state of health and employment.

So far as the latter is concerned, the plaintiff had remained employed with the defendant until recently.

A claim form was completed in respect of the accident of 3 June 1992.

Whether the description of that accident would support or not a claim for damages for the consequent tear to the rotator cuff is unclear. However, it is not so clearly unarguable as to require refusal of leave.

Further, on 29 October 1992, the plaintiff made a further claim in respect of his 1987 accident. That was because of the medical advice received from Dr Madew that the back condition should be further explored, although, due to the employer's insurer declining to pay for it, that further exploration did not happen until September 1995. That, at least, focussed some attention on his continuing state of health.

Then, the plaintiff deposes, in 1995 the plaintiff sought and obtained from Mr Thorne, apparently an officer of the defendant, copies of the three claim forms he had by then submitted. It is not clear whether he told Mr Thorne it was for the purpose of pursuing a damages claim but I accept that Mr Thorne would probably have viewed such a consequence as a real likelihood. There is no evidence that the insurer was notified of this subsequent event though it is possible that it was so informed.

As I have noted, the defendant advances no complaint of specific prejudice.

Nevertheless, there is the consideration that, since 3 June 1995, the defendant has been entitled to assume that this claim was statute-barred.

In McIntosh, that situation had obtained for nearly four years. In this case, it has obtained for a little over two years. There was the reactivation of some interest in pursuit of some claim in October 1992 and then in 1995.

There are no other factors which appear relevantly to favour or not the grant or refusal of leave to sue for the 1992 injury. Of course, the potential disadvantage to the plaintiff in being denied the opportunity to sue must be given due weight.

On balance, I am satisfied that it would be just and reasonable to grant leave to the plaintiff to bring an action in respect of the 1992 injury. Leave is granted to do so accordingly.

I will hear the parties as to costs.