Kershaw v Magnet Mart Pty Limited [2008] ACTSC 135 (12 December 2008)

Last Updated: 23 December 2008

TRENT KERSHAW v MAGNET MART PTY LIMITED (ACN 008 553 973)

[2008] ACTSC 135 (12 December 2008)

LIMITATION OF ACTIONS – personal injury – claim against employer – workers’ compensation claim previously accepted – action commenced seventeen months out of time – reason for delay not satisfactory – no significant prejudice to defendant – justice favours granting of extension – extension granted

Limitation Act 1985, ss 16A, 32, 36

Sessions v Phengsiaroun [2008] ACTSC 132

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

Noja v Civil and Civic Pty Limited & Ors [1990] FCA 135; (1990) 26 FCR 95

Hamilton v Madden [2007] ACTSC 89

Brozinic v PHC Operations Pty Limited t/as Hyatt Hotel Canberra [2008] ACTSC 20

No. SC 70 of 2008

Judge: Master Harper

Supreme Court of the ACT

Date: 12 December 2008

IN THE SUPREME COURT OF THE )

) No. SC 70 of 2008

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: TRENT KERSHAW

Plaintiff

AND: MAGNET MART PTY LIMITED (ACN 008 553 973)

Defendant

ORDER

Judge: Master Harper

Date: 12 December 2008

Place: Canberra

THE COURT ORDERS THAT:

1. The period within which this action may be brought be extended to 25 January 2008.

2. The defendant’s costs of the application be paid by the plaintiff.

1. This is an application, in an action by an employee against an employer for damages for personal injury, for an extension of the limitation period, or alternatively for a declaration that a payment made by the defendant’s insurer has had the effect of confirming the plaintiff’s cause of action with the effect that the limitation period has not yet elapsed.

2. The action was commenced by originating claim on 25 January 2008. The statement of claim asserts that the cause of action arose on 9 August 2003. The plaintiff alleges that on that date he was lifting bags of cement in the course of his employment. He alleges an aggravation through a further work injury on 17 September 2003. The injured area is said to have been the mid-thoracic spine.

3. Under section 16A of the Limitation Act 1985, the limitation period is three years. The Court has a discretion under section 36 of the Act to extend the period for such period as it determines, if the Court decides that it is just and reasonable to do so. In exercising its discretion, the Court must hear such of the persons likely to be affected by an extension as it considers appropriate. Section 36(3) sets out a number of factors which the Court is to have regard to in exercising its discretion. The list is not exhaustive and the Court is required to have regard to all the circumstances of the case.

4. The listed factors include:

(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;

. . .

(e) The extent to which the plaintiff acted promptly and reasonably once he . . . knew that the act or omission of the defendant . . . 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 the advice the plaintiff may have received.

5. Under section 36(4) the power to extend may be exercised notwithstanding that the application for extension is not brought until after the limitation period has expired.

6. The defendant delivered a defence on 25 February 2008 pleading the limitation defence. The plaintiff brought the present application on 6 November 2008. The application is supported by affidavits by the plaintiff himself, and by his solicitor, Mr Little. The defendant relies on an affidavit by Ms Polldore, its solicitor. Each of the three deponents to the affidavits gave oral evidence and was cross-examined.

7. The plaintiff lodged a claim form in respect of worker’s compensation with the employer on 12 August 2003. He gave the time of the injury as 11.00 am on 9 August 2003, and said that he gave notice of it on 12 August 2003 to Belinda Gibb. He completed a second claim form on 17 September 2003, in respect of the incident on that date, which he said he reported to Glen Salmon. He subsequently provided the defendant, or its insurer, GIO ACT Workers’ Compensation (evidently a business name of GIO General Limited) with medical certificates. The insurer had him examined by a psychologist employed with a firm of rehabilitation specialists, and later, in June 2004, by an orthopaedic surgeon, Dr Talbot. The later diagnosed a probable injury to the ligaments attached to the T10 vertebra resulting from heavy lifting. The plaintiff was in his view fit for semi-sedentary work but not for work which involved lifting. He saw the plaintiff less than a year after the injury and thought that there was still a reasonable chance that the back injury would resolve spontaneously.

8. Neither the plaintiff nor Mr Little has given any real explanation for the delay between the injury and their first consultation in 2005.

9. At the time of the injury the plaintiff’s address was at Scullin. He says that in January 2005 he used a post office box at Hall. In May 2005 he moved to Flynn and changed his postal address, presumably to his new residential address. He omitted to inform Mr Little.

10. Mr Little wrote to the plaintiff at the Hall postal address in February 2005, May 2006 and January 2007, but received no reply. He was unable to contact the plaintiff.

11. At the end of January 2005 Mr Little received a number of documents from the insurer, which, I infer, included copies of the claim forms. These included an email address for the plaintiff and a mobile telephone number. I suspect that if Mr Little had tried to contact the plaintiff by email or mobile telephone he may well have succeeded. In any event, at the end of June 2007 a member of the staff of Mr Little’s firm succeeded in contacting the plaintiff by telephone. An appointment was made for the plaintiff to come in to see Mr Little three weeks later, and further instructions were taken.

12. Between July and November 2007, Mr Little says that his staff made six attempts to contact the plaintiff by telephone and letter, without response. The plaintiff says that during this period he was busy with work, managing an information technology project and closing down an information technology business. I would not accept this as much of an explanation for his failure to respond to his solicitor over a period of four months.

13. The plaintiff now says that his back is symptom-free provided that he maintains his fitness, which he does by playing basketball three times a week and attending fitness classes. If he ceases these activities for a month or so and then engages in strenuous activity, he suffers back pain.

14. The insurer made payments of about $3,000.00 in relation to the worker’s compensation claim, the last payment being made in January 2005. Mr Salmon no longer has any recollection of the events of 17 September 2003.

15. The limitation period expired on 10 August 2006, or at the latest on 18 September 2006. I am not particularly concerned about the plaintiff’s delay between the date of injury and the date he consulted Mr Little in January 2005. Clearly the insurer had ample information until then about the injuries and the claim generally. From January 2005, the insurer was on notice that the plaintiff had consulted a solicitor and was considering his rights. At the same time, it must be conceded that the insurer heard nothing from the plaintiff’s solicitor after the end of January 2005 until well after the expiry of the limitation period. The solicitor deposes to writing a letter to the insurer on 23 July 2007, a copy of which is annexed to his affidavit, but Ms Polldore deposes that the insurer has no record of having received the letter. In any event, the letter was written nearly a year after the expiry of the limitation period.

16. Generally, neither the plaintiff nor Mr Little seems to have acted with any sense of urgency after the end of January 2005 until the limitation period expired.

17. Counsel for the plaintiff made a submission, without much confidence that I could detect, that payment of the last treatment account by the insurer on 31 January 2005 should be regarded as a confirmation by the defendant of the cause of action for the purposes of section 32 of the Limitation Act. Higgins CJ recently explained the operation of that section in Sessions v Phengsiaroun [2008] ACTSC 132. His Honour held that a cause of action was confirmed within the section where the defendant’s insurer, being the third party insurer of his motor vehicle, made a payment to the workers’ compensation insurer by way of reimbursement of compensation payments made to the plaintiff. There was no claim for damages against the employer, who was not a party to the action.

18. The present circumstances are quite different. The payment made by the workers’ compensation insurer on 31 January 2005 was made in ignorance of any intention on the part of the plaintiff to claim damages under the general law, and was no more than a routine payment of a treatment expense under the workers’ compensation policy. The payment was not capable of confirming the cause of action for the purposes of section 32 of the Limitation Act and did not do so.

19. Higgins CJ would have extended time in any event pursuant to section 36 of the Limitation Act. His Honour referred in his reasons to the decision of the High Court of Australia in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, and also to the decision of Sheppard, Neaves and Miles JJ in Noja v Civil and Civic Pty Limited & Ors [1990] FCA 135; (1990) 26 FCR 95. His Honour also referred to previous decisions of mine in Hamilton v Madden [2007] ACTSC 89 and Brozinic v PHC Operations Pty Limited t/as Hyatt Hotel Canberra [2008] ACTSC 20. I shall not repeat His Honour’s observations, which are set out in detail in Sessions v Phengsiaroun.

20. The various considerations to be taken into account on the present application are finely balanced. The explanation for the delay is not a particularly persuasive one. On the other hand, notwithstanding the general presumption that delay inevitably leads to some prejudice, I am not satisfied that there is likely to be prejudice to any significant degree caused to the defendant or its insurer if an extension is granted. I am not satisfied that the delay has resulted in the defendant losing its right to a fair trial. On balance, the justice of the case favours a grant of an extension of time as sought.

21. The period within which this action may be brought will be extended to 25 January 2008.

22. The plaintiff approaches the Court seeking an indulgence. The necessity for him to do so arises from a failure on his part to look after his interests by keeping his solicitor informed of his change of address, and failing to keep in contact with his solicitor. The plaintiff must pay the costs of the application.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 12 December 2008

Counsel for the plaintiff: Mr SR Hausfeld

Solicitors for the plaintiff: Maliganis Edwards Johnson

Counsel for the defendant: Mr GA Stretton

Solicitors for the defendant: Sparke Helmore

Date of hearing: 28 November 2008

Date of judgment: 12 December 2008