Furner v Afmic Pty Ltd t/as Chess Removals & Ors [2006] ACTSC 75 (28 July 2006)

Last Updated: 13 February 2007

ANTHONY ROY FURNER v AFMIC PTY LTD t/as CHESS REMOVALS & ORS [2006] ACTSC 75 (28 July 2006)

PRACTICE AND PROCEDURE - application for extension of limitation period - whether prejudice to defendant - apparent complete recovery - plaintiff only became aware of possible ongoing effects of injury upon seeing medical report in relation to subsequent injury

Limitation Act 1985, s11.

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541

No. SC 96 of 2005

Judge: Master Harper

Supreme Court of the ACT

Date: 28 July 2006

IN THE SUPREME COURT OF THE )

) No. SC 96 of 2005

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ANTHONY RAY FURNER

Plaintiff

AND: AFMIC PTY LTD t/as CHESS REMOVALS

Defendant

AND: EMPLOYERS MUTUAL INDEMNITY (WORKERS COMPENSATION) LTD

First Third Party

AND: ALLIANZ AUSTRALIA INSURANCE LTD

Second Third Party

ORDER

Judge: Master Harper

Date: 28 July 2006

Place: Canberra

THE COURT ORDERS THAT:

Time for the plaintiff to commence proceedings in respect of the injury on 28 July 1998 be extended to 22 February 2005, conditionally upon the plaintiff providing to the solicitors for the defendant copies of the statements, or those portions of the statements, of Michael Neale and Jeffrey Forsyth relating to the injury of that date.

1. This is an application for extension of a limitation period. The plaintiff claims damages for personal injuries sustained in the course of his employment with the defendant, a furniture removalist company carrying on business from premises at Queanbeyan in New South Wales.

2. The plaintiff commenced employment with the defendant in 1995. His work involved moving furniture. Most of the work was carried out in the Australian Capital Territory. It involved bending and heavy lifting. He deposes that on 28 July 1998, he was working with his immediate superior, Michael Neale, at a house at Greenway, a southern Canberra suburb, when he injured his low back in the course of lifting a carton. He went back to the defendant's premises at Queanbeyan on the day of the accident and reported it to the operations manager, Jeff Forsyth. He went to his general practitioner at Bungendore a day or two later and was referred for x-rays to the low back. He was also sent to Dr G Speldewinde, a rehabilitation specialist in Canberra. A CT Scan of the plaintiff's lumbar spine taken on 18 August 1998 showed shallow disc herniation at L5-S1 and possible impingement of the right S1 nerve root. He was off work for about three months. Neither he nor, apparently, the defendant, notified the workers' compensation insurer or made a claim. The defendant continued to pay the plaintiff his salary, and also paid his treatment expenses.

3. The plaintiff's evidence is that he stopped working for the defendant in October 1998. He considered that he had fully recovered from the injury by that time. He moved to Temora where he worked in less physically demanding jobs. In his affidavit in support of this application, sworn in February 2006, he deposes that he suffered no symptoms in his low back between October 1998 and when he recommenced employment with the defendant in September 2001.

4. This is at odds with a history the plaintiff gave to Dr Speldewinde in May 2004, to the effect that during his time at Temora he had continuing variable lower back pain and intermittent pain down both legs. He also told Dr George Hession, a physician who saw him for medico-legal purposes in September 2004, that some degree of low back discomfort continued to trouble him after the 1998 accident, which had progressed to pain prior to 1 January 2003, when he experienced pain in the low back following a minor incident which seems to have occurred when he was leaning against a stack of tyres. The latter incident is not mentioned in Dr Speldewinde's report. There is thus some confusion about the plaintiff' condition following the 1998 accident: for the purposes of the application, I accept the evidence in his affidavit, which was not challenged.

5. The plaintiff then deposes that on about 17 October 2002, he suffered a further and more significant injury to the low back, in the course of his work with the defendant. He was working with a colleague, Rickie Lloyd, at a unit at Kingston. The work included lifting a piano up and down three flights of stairs. The incident caused severe back pain, which led to lumbar surgery in March 2003.

6. The plaintiff's expenses following the piano incident were initially covered by the first third party, which was the defendant's workers' compensation insurer for New South Wales. The first third party refused to pay for the plaintiff's operation. The plaintiff sought advice from his present solicitors, which eventually led to the commencement of the present proceedings.

7. The plaintiff in his affidavit gives the present residential addresses of Mr Neale and Mr Lloyd in Queanbeyan and Mr Forsyth in Victoria. He also gives residential addresses in the Canberra-Queanbeyan area for a further six former fellow employees.

8. The plaintiff's explanation for his delay in seeking legal advice and commencing proceedings in relation to the 1998 injury is that he believed that he had completely recovered from the effects of that injury by the time of the piano incident in 2002. It was only when his solicitor showed him Dr Hession's report that he realised that some of his continuing disabilities might be causally related to the earlier accident.

9. The limitation period for the 1998 injury expired on 28 July 2004, some seven months before proceedings were commenced. In March 2005, Minter Ellison, acting on instructions from what is now the second third party, entered an appearance on behalf of the defendant. In December 2005 they delivered a defence pleading, inter alia, the expiry of the limitation period in relation to the 1998 injury. The plaintiff's solicitors within days filed a notice of motion seeking an extension of the limitation period.

10. No criticism can be made of the plaintiff in respect of the period between the filing of the notice of motion and the hearing of the application on 21 July. During this time Minter Ellison were removed from the record as solicitors for the defendant, which is now otherwise represented. The defendant joined the third parties, and Minter Ellison are now acting, presumably without objection by the defendant, for the second third party. There are issues of substance between the defendant and the third parties as to the defendant's entitlement to cover in respect of the claim which are not relevant to the present application.

11. The defendant opposes the application for extension: the third parties do not, or at least have made no submissions as to why the extension should not be granted.

12. The defendant relies on an affidavit by Mrs Anne Taylor, director of the defendant company. Her husband, John Taylor, was also a director prior to his death in November 2004. Until that time, Mrs Taylor was working for a few hours a week for the company. Since her husband's death she has been working at least five days a week. During his lifetime, Mr Taylor ran the company from the Queanbeyan premises, generally working from about 7.00 am until 5.30 or 6.00 pm Monday to Friday, plus half a day on Saturdays. He did not personally attend many jobs away from the company's headquarters, but he was aware of the nature and location of the jobs, and which employees had been assigned to them. I accept that this would have been the case throughout the time of the plaintiff's employment with the defendant. Mrs Taylor did not know the plaintiff in 1998 and knew nothing about his injury in that year. She produced and annexed to her affidavit a number of documents, including medical certificates and accounts for treatment expenses, from which it is clear that the company, presumably through her late husband, was well aware of the injury and the nature of the plaintiff's treatment.

13. She has checked the company pay records, which show that Mr Forsyth, Mr Lloyd and Mr Neale were paid for the week which included Tuesday 28 July 1998, whilst the other fellow employees identified by the plaintiff did not work during that week. Mr Neale ceased employment with the defendant in January 2000 and Mr Forsyth in July 2000. Mr Lloyd remained with the company until August 2005 but since then has been working with a competitor.

14. The limitation period for commencing an action for damages for personal injuries, where the tort was committed in this Territory, during the period relevant to the present action, is six years: Limitation Act 1985, section 11. (It has since been reduced to three years by the insertion of section 16B, but without retrospective operation.) The limitation period for a tort committed in New South Wales would have been three years, but the plaintiff's case is that no relevant tort was committed in New South Wales.

15. The power of the Court to extend the limitation period is conferred by section 36 of the Limitation Act. The section confers a general discretion on the Court to extend the period if satisfied that it is just and reasonable to do so. Subsection 36(3) requires the Court to have regard to all the circumstances of the case, and sets out the following particular factors which the Court must consider:

(a) the length of and reasons for the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;

(c) the conduct of the defendant after the cause of action accrued to the plaintiff, including the extent (if any) to which the defendant took steps to make available to the plaintiff means of ascertaining facts that were or might be relevant to the cause of action of the plaintiff against the defendant;

(d) the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once he or she knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he or she may have received.

16. In a judgment dealing with an equivalent provision in Queensland legislation, Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, the High Court determined that an applicant had no presumptive right to an order, but bore a legal onus of showing that the justice of the case required the discretion to be exercised favourably, and that an extension would not result in significant prejudice to the defendant. The process was not one of weighing the potential prejudice to the applicant against that to the defendant. In a passage which has been frequently cited in decisions of courts throughout Australia, McHugh J said at 551:

The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates." Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, "what has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.

17. McHugh J expanded upon this analysis at 553:

A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it.

18. In the present case, I am satisfied that there is an acceptable explanation for the plaintiff's failure to commence proceedings within the limitation period in respect of the 1998 injury. I am also satisfied that he acted, through his solicitors, promptly and reasonably once he became aware of medical opinion that he had not, as he previously thought, made a complete recovery prior to the 2002 piano incident. If there were no prejudice to the defendant, I would be minded to grant the extension.

19. Counsel for the defendant argues that his client has lost a crucial witness in the person of Mr Taylor.

20. The position is complicated by the dispute between the third parties, the workers' compensation insurers, and the defendant. It appears that the second third party initially accepted the plaintiff's claim for workers' compensation against the defendant arising out of the piano incident. Indeed, the second third party initially instructed its solicitors to act for the defendant in the present action, remaining on the record until 7 April 2006.

21. The third parties were represented on the hearing of the application but did not oppose it. In each case they were the insurers of the defendant in 1998 as well as in 2002 and, as I understand it, no different issue arises between the defendant and either third party as to the 1998 injury than will remain to be determined in respect of the 2002 injury even if the extension is not granted. That is to say, if the defendant is found, in the third party proceedings, to be entitled to indemnity by either third party, that indemnity will extend to both claims.

22. The plaintiff's affidavit evidence is that the only persons likely to be able to give direct evidence about his 1998 injury are Mr Neale and Mr Forsyth. The plaintiff's solicitors have obtained statements from both men. They are no longer employed by the defendant. Fairness dictates that the plaintiff should be required to provide copies of the statements to the defendant if an extension is to be granted.

23. As to any evidence which Mr Taylor might have been able to give, I am mindful of the words of McHugh J quoted above, but it is not apparent to me that Mr Taylor would have been in a position to give any evidence relevant to the plaintiff's 1998 injury. The records of the business are available, including attendance and pay records, and medical accounts and receipts. I note that when the solicitors for the second third party were on the record for the defendant, they issued notices for non-party production addressed to a number of medical practices and practitioners, including the Bungendore Medical Centre, the Crawford Street Medical Clinic and Dr Speldewinde, seeking production of all documents relating to the plaintiff, unlimited as to time. The notices required the respondents to produce the documents in the first instance to the plaintiff's solicitors, after which they were required to be delivered to the then solicitors for the defendant, now the solicitors for the second third party. Presumably those solicitors will have provided copies of those documents to the defendant direct or to its present solicitors: if not, they should do so immediately. The defendant will then be in possession of the available contemporaneous documentation in relation to the 1998 injury.

24. I take account of the fact that the delay in this case is only a matter of months, by contrast with other applications which have come before the Court from time to time seeking extensions running into years, sometimes many years. In many of those applications, too, the defendant has known nothing about the fact that a person is said to have been injured until the making of the application for extension. In the present case, the defendant has been aware of the injury of 28 July 1998 since later on the same day.

25. In the circumstances, it seems to me that such prejudice as the defendant may suffer as a result of the delay in commencing proceedings cannot be described as substantial or significant. Any such notional prejudice is, to my mind, greatly outweighed by the potential injustice to the plaintiff if he is not permitted to prosecute his claim.

26. It also seems to me relevant that, in the unusual circumstances of this case, the plaintiff's action against the defendant, and the defendant's claims against the third parties, will continue in respect of the 2002 injury even if the extension is refused: and that the medical evidence in relation to the 1998 injury would be relevant to the continuing claim, and likely to be admitted in relation to it.

27. Time for the plaintiff to commence proceedings in respect of the injury on 28 July 1998 should be extended to 22 February 2005, conditionally upon the plaintiff providing to the solicitors for the defendant copies of the statements, or those portions of the statements, of Michael Neale and Jeffrey Forsyth relating to the injury of that date. I shall hear the parties as to costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 28 July 2006

Counsel for the plaintiff: R J Mildren

Solicitors for the plaintiff: Pamela Coward & Associates

Counsel for the defendant: E J Sweeney

Solicitors for the defendant: Wood Fussell

Counsel for the first third party: I D Roberts SC

Solicitors for the first third party: Edwards Michael Moroney by their Canberra agents Barker & Barker

Counsel for the second third party: M F Treffers

Solicitors for the second third party: Minter Ellison

Date of hearing: 21 July 2006

Date of judgment: 28 July 2006