Whiteford v Ropolo Services Pty Limited [2009] ACTSC 22 (13 March 2009)

Last Updated: 16 March 2009

ADAM OLIVER JOHN WHITEFORD v ROPOLO SERVICES PTY LIMITED (ACN 088 360 614)

[2009] ACTSC 22 (13 March 2009)

LIMITATIONS OF ACTIONS – personal injury – action against employer – workers’ compensation claim previously accepted – action commenced fifteen months out of time – no prejudice to defendant – justice favours granting of extension – extension granted – observations as to where liability for costs should fall as between solicitor and plaintiff

Limitation Act 1985, ss 16A, 36

Sessions v Phengsiaroun [2008] ACTSC 132

No. SC 597 of 2008

Judge: Master Harper

Supreme Court of the ACT

Date: 13 March 2009

IN THE SUPREME COURT OF THE )

) No. SC 597 of 2008

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ADAM OLIVER JOHN WHITEFORD

Plaintiff

AND: ROPOLO SERVICES PTY LIMITED (ACN 088 360 614)

Defendant

ORDER

Judge: Master Harper

Date: 13 March 2009

Place: Canberra

THE COURT ORDERS THAT:

1. The period within which this action may be brought be extended to 31 July 2008.

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

3. Those costs not be recoverable until the making of final orders in the action.

1. This is an application to extend a limitation period. The plaintiff claims damages against his then employer for personal injury which he suffered when he lifted a mobile metal ramp in the course of his employment on 15 April 2004. He commenced the present action on 31 July 2008, claiming damages for negligence generally based on a failure to provide a safe system of work. The defendant’s solicitors filed a defence in November 2008 denying negligence and asserting contributory negligence. A week later they filed an amended defence pleading the expiry of the limitation period of three years prescribed by section 16A of the Limitation Act 1985.

2. In January 2009 the plaintiff’s solicitors filed the present application, supported by affidavits affirmed by the plaintiff, his father and his solicitor. The plaintiff and the solicitor also gave oral evidence.

3. The plaintiff says that he told his supervisor at work about the injury on the day it happened. He signed a workers’ compensation claim form on 3 May 2004, providing all of the information sought in the form. He saw his general practitioner the day after the accident and was given a medical certificate for time off work. Following acceptance of his workers’ compensation claim, he was paid compensation until the end of June 2005. During that time the insurer funded a rehabilitation program for him. He was seen by rehabilitation specialists and physiotherapists. He underwent a graduated return to work program.

4. He was dismissed by the employer on 23 June 2005, and his workers’ compensation payments ceased at the same time. He was not happy about the circumstances of his dismissal. He brought proceedings unsuccessfully against the employer in the Australian Industrial Relations Commission.

5. In about August 2005 he started a landscaping business with a friend and partner. The business was in operation until the end of 2006. The plaintiff’s evidence is that he was not capable, because of his injuries, of making a fair contribution to the physical work required by the partnership.

6. He first consulted his present solicitor, Mr Lander, in November 2006. Mr Lander knew the plaintiff’s father as a client and as a friend.

7. Following Mr Lander’s consultation with the plaintiff, he wrote him a letter of advice summarising their discussion. Mr Lander noted that the plaintiff had “an effectively dormant claim for workers compensation for back injury”. He said that it was hard to see how the plaintiff could establish “any significant level of permanent impairment that was work related”. He advised the plaintiff not to “sign off on your claim even if invited to without legal advice first”.

8. Mr Lander did not mention anything in the letter about a time limit for commencing proceedings under the general law, and conceded in his oral evidence that he did not raise this during the consultation.

9. In February 2007 the plaintiff and his father went to see Mr Lander with correspondence from the workers’ compensation insurer, apparently raising a query about causation in relation to accounts for a medical consultation and an MRI scan. Mr Lander explained the procedure for bringing proceedings in the Magistrates Court for workers’ compensation. During a further meeting with the plaintiff during May 2007 Mr Lander spoke to the claims manager of the insurer and obtained his agreement to paying half of the cost of an assessment by an occupational physician, Dr Le Leu. The plaintiff presented to Dr Le Leu, who provided a lengthy and detailed report by the end of May. Mr Lander sent a copy of the report to the insurer. Dr Le Leu arrived at the opinion that the plaintiff had had no back symptoms prior to the lifting incident; that he was suffering from low back pain and intermittent sciatica; that he was unfit for heavy physical work; and that his condition had been caused by the lifting incident.

10. The limitation period expired on 15 April 2007.

11. Early in June 2007 the claims manager referred the plaintiff to another provider, Advanced Personnel Management, for vocational rehabilitation and if required physical rehabilitation in an attempt to get him back to work. The plaintiff attended this course.

12. In late June 2007 Mr Lander was approached by an investigator instructed by the insurer. He arranged for the investigator and the plaintiff to come in to his office where the interview took place. Mr Lander was given the opportunity to check the transcript of the interview in draft. The resulting document is in the form of a typed statement of six pages, signed by the plaintiff and witnessed by Mr Lander. The statement deals with the circumstances of the injury and the plaintiff’s subsequent condition and treatment.

13. In October 2007 the plaintiff started work at a sporting goods shop as a retail assistant. He is still working there on a part-time casual basis, his earnings supplemented by Centrelink benefits.

14. In February 2008 Mr Lander commenced proceedings in the Magistrates Court on the plaintiff’s behalf for workers’ compensation benefits. That application has not yet been heard.

15. In July 2008 Mr Lander had a consultation with the plaintiff and his parents. He received instructions to deliver a brief to Mr Ryan of counsel, who appeared for the plaintiff on the present application. Mr Ryan advised that the plaintiff should bring an action for damages under the general law. Mr Lander received instructions to proceed in accordance with the advice, and commenced these proceedings without delay.

16. Counsel for the defendant cross-examined the plaintiff extensively about the circumstances of the injury and the extent of his disabilities. An application for extension of a limitation period is usually not the appropriate occasion for an exploration of these matters. There will be cases where it becomes clear after such an exploration that the case has such negligible prospects of success that to grant the extension would be nugatory. This was not such a case. It may be that the plaintiff, if the period is extended, will go to trial and fail to make out his claim, but in that event he will be entitled to present his case at trial in the usual manner. This is not a case where, if the extension is granted, the defendant could expect any success in an application for summary judgment.

17. Section 16A of the Limitation Act fixes the limitation period at three years. The Court is given 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. 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.

18. 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;

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 the advice the plaintiff may have received.

19. I am satisfied that the plaintiff was completely unaware of the fact that there was a limitation period, and indeed of the availability of an action for damages under the general law separately from proceedings in the Magistrates Court for workers’ compensation, until he became aware of the advice of Mr Ryan of counsel shortly before the present proceedings were instituted. This was the case notwithstanding that the plaintiff first consulted his solicitor some five months before the limitation period expired. This is something a solicitor should explain to a client who may have an action available for damages for personal injury, particularly in circumstances where the solicitor is not immediately instructed to commence proceedings, and where the limitation period will elapse within a few months. The solicitor should adopt this course even where the solicitor forms the view that such an action might not have particularly strong prospects of success, and even where the solicitor genuinely believes that the client does not wish to institute proceedings and will probably never wish to do so. The solicitor’s role is to advise and explain: the decision is one for the client.

20. The principles to be applied in an application of this nature were recently set out by Higgins CJ in Sessions v Phengsiaroun [2008] ACTSC 132. His Honour made reference to a number of decisions of the High Court of Australia, the Federal Court of Australia and this Court. It is unnecessary in these reasons for me to repeat the principles, which are well known.

21. In the present application, the delay on the part of the plaintiff is readily explained: he was quite unaware of the limitation period. He placed reliance on his solicitors and reasonably expected that they would look after his interests. The delay by the solicitor in obtaining instructions and commencing proceedings is much less satisfactorily explained, but I am satisfied in the circumstances of this application that there is unlikely to be any prejudice to the defendant. The employer has been aware of the injuries since the day it happened, and the insurer for almost as long. The insurer has focused on, and undertaken investigations into, the circumstances of the injury, something which is not always the focus of a great deal of attention in workers’ compensation only claims. The insurer has been provided with all material relating to the plaintiff’s treatment, and indeed has initiated and paid for a significant amount of that treatment in a laudable endeavour to get the plaintiff back to work. I am satisfied that the delay has not caused the defendant to lose its right to a fair trial of the action. On balance, the justice of the case favours the grant of an extension of time as sought.

22. The period within which this action may be brought will be extended to 31 July 2008.

23. The plaintiff approaches the Court seeking an indulgence, and as between him and the defendant, he must pay the costs of the application. Having regard to the disparity in the financial positions of a young man with a casual part-time job on the one hand and an insurance company on the other, it is reasonable to postpone recovery of the costs until the conclusion of the substantive proceedings. The application has been made necessary principally by the failure of the plaintiff’s solicitors to provide proper explanation and advice to the plaintiff. If I had refused to grant the extension, the solicitors would, it seems to me, have had no answer to a claim by the plaintiff for the loss of the opportunity to succeed in his action. I simply observe for present purposes, and it is probably unnecessary for me to do so, that the costs of this application should ultimately be borne by the plaintiff’s solicitors and not by the plaintiff himself.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 13 March 2009

Counsel for the plaintiff: Mr CJ Ryan

Solicitors for the plaintiff: Lander & Co.

Counsel for the defendant: Mr GA Stretton

Solicitors for the defendant: Mallesons Stephens Jaques

Date of hearing: 6 March 2009

Date of judgment: 13 March 2009