Laws v Web Scaffolding Pty Limited [2009] ACTSC 65 (5 June 2009)

Last Updated: 15 July 2009

SHANE MICHAEL LAWS v WEB SCAFFOLDING PTY LIMITED
(ACN 069 023 392)
[2009] ACTSC 65 (5 June 2009)

LIMITATION OF ACTIONS – personal injury – claim against employer – workers’ compensation claim previously accepted – action commenced six months out of time – reason for delay unsatisfactory – no significant prejudice to defendant – justice favours grant of extension – extension granted

Civil Law (Wrongs) Act 2002
Limitation Act 1985, s 36
Court Procedures Rules 2006, r 75

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 trading as Hyatt Hotel Canberra [2008] ACTSC 20

No. SC 520 of 2007

Judge: Master Harper
Supreme Court of the ACT
Date: 5 June 2009

IN THE SUPREME COURT OF THE )
) No. SC 520 of 2007
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: SHANE MICHAEL LAWS

Plaintiff

AND: WEB SCAFFOLDING PTY LIMITED (ACN 069 023 392)

Defendant

ORDER

Judge: Master Harper
Date: 5 June 2009
Place: Canberra

THE COURT ORDERS THAT:

1. The period within which this action may be brought be extended to 1 August 2007.
2. The plaintiff pay the costs of both applications.
3. Those costs not be recoverable until the conclusion of the substantive proceedings.

1. This is an application to extend the limitation period in an action for damages for personal injury by an employee against an employer.
2. The plaintiff’s claim is that he suffered a work injury on 29 January 2001. He lodged a claim form with the employer’s workers’ compensation insurer on 14 February 2001. The employer also lodged with the insurer a report form in relation to the claim. The insurer instructed solicitors, who arranged for the plaintiff to be examined by an orthopaedic surgeon, Dr Peter Battlay. They also instructed a firm of investigators to obtain a statement from the plaintiff. The insurer received the investigation report in April 2001 and Dr Battlay’s report in May 2001. The insurer accepted the claim and made some payments of compensation. The insurer did not pay any treatment expenses and I infer it was not asked to do so. The claim had gone no further by late 2001 and the insurer closed its file.
3. The plaintiff instructed his present solicitors in February 2005. They sent a letter to the insurer in March 2005. They said that they were acting for the plaintiff, and advising him about his rights and remedies arising out of the accident. They asked for copies of medical and investigation reports and claim forms. They said that they were preparing a notice under the Civil Law (Wrongs) Act 2002, and that they would serve the notice on the employer unless they heard otherwise from the insurer.
4. Not having received a reply, they completed a personal injury claim notification form in accordance with the form prescribed under that Act, and served it on the employer on 5 April 2005. The insurer evidently received the letter and form from the employer. The insurer wrote to the solicitors acknowledging the form but saying that having regard to the date of the injury the notice provisions of the Civil Law (Wrongs) Act were not applicable.
5. There was some further correspondence between the plaintiff’s solicitors and the insurer in April and May 2005 which was inconclusive. The solicitors wrote to the plaintiff in May 2005 but he did not receive the letter. The plaintiff says that during 2005 and 2006, he was ambivalent about starting court proceedings. He continued to hope that the pain would go away over time, and was concentrating on his career. A year passed without further progress. In May 2006 the solicitors wrote to him again, and he eventually saw them in response to this in July 2006. In the following months he conferred, I presume in accordance with arrangements made by the solicitors, with an engineer for the purposes of the case. He changed address late in 2006. It appears that he did not notify his solicitors of his new address, and another year went by before he had further contact with them.
6. The applicable limitation period under the Limitation Act 1985 was six years. The period expired on 29 January 2007. It is reasonably clear that the plaintiff was unaware of the significance of this. Certainly it does not seem to have been a factor weighing on his mind. It seems to me more likely than not that either his solicitors did not inform him about the limitation period, or that they did not explain its significance to him.
7. In July 2007 the solicitors contacted the plaintiff. On 13 July 2007 they wrote to the insurer. They noted that they had not received a reply to their letter of 23 May 2005. They said that they were in the process of commencing proceedings, and that they were bringing the matter to the attention of the insurer “in order that you may consider whether you wish to instruct your solicitors to plead the statute”.
8. On 1 August 2007 the present proceedings were commenced by originating claim, and served on the defendant on 10 August. Meanwhile on 7 August 2007 the present solicitors for the defendant wrote to the solicitors for the plaintiff saying that they had been instructed in the matter and that they were “instructed to defend the claim which in any event is statute barred”. They enclosed a copy of the statement obtained by the investigator from the plaintiff in April 2001.
9. There was a further delay of about three months before the plaintiff saw his solicitors again, late in November 2007. They made arrangements for him to see some medical specialists. On 28 November 2007 the defendant’s solicitors filed a notice of intention to respond and on 5 December 2007 they filed and served a defence, denying negligence and in addition pleading that the action was statute-barred.
10. Somewhat extraordinarily, the plaintiff’s solicitors did not make an application immediately for an extension of the limitation period. The plaintiff says that he commenced providing instructions to his solicitors in relation to applying for an extension of time in March 2008, and that he conferred with counsel in July 2008. He then says that he spoke with his solicitors again in November 2008, and that the solicitors contacted him again in February 2009. He says that his delay in pursuing the matter arose “from a combination of factors including my pursuit of my career, my remaining optimism that my pain would go away and my commitment to my family”.
11. The plaintiff’s solicitors have given no explanation for the lack of any action during the calendar year 2008.
12. On 6 December 2008, no step having been taken in the action by either party for a year, the Registrar notified the parties that the action was taken to have been struck out pursuant to rule 75(2) of the Court Procedures Rules 2006.
13. On 15 December 2008, Mr Little of the solicitors for the plaintiff had a conversation with Mr Fleming of the solicitors for the defendant, in which Mr Fleming said words to the effect “Please don’t put on your application for an extension of time until the matter is reinstated”. Mr Little agreed. On 20 January 2009 Mr Little filed an application to reinstate the action, returnable on 23 February 2009. On 10 February 2009 Mr Fleming wrote to Mr Little asking that he amend the application to include extension of the limitation period. There followed communications between the solicitors aimed at finding a date convenient to counsel for the hearing of the application. I heard the application on 17 April 2009. It had not by that stage been amended, but on that date I granted leave to file in Court a further application for an extension of the limitation period.
14. The Court has a discretion under section 36 of the Limitation Act to extend the limitation 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.
15. 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.
16. 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.
17. The plaintiff’s explanation for the delay between the accident in January 2001 and first instructing solicitors in February 2005 is essentially that he originally thought that the injuries were more minor than they turned out to be, and he continued to hope that he would make a complete recovery. It is worth pointing out that since 2001, the limitation period has been reduced to three years, and that under the present regime a four-year delay in instructing solicitors would place a plaintiff out of time already. Under the present regime, there is no power to extend the three-year limitation period for personal injury claims other than those involving a workers’ compensation insurer. But in February 2005, the plaintiff was still well within time, and I accept his explanation for leaving it for four years before seeing a solicitor as a reasonable one in the circumstances.
18. When instructed, the solicitors communicated promptly with the employer and the insurer to inform them that a claim might be expected. The steps they took in mid-2005 were, it seems to me, adequate to put the insurer on notice that if there were further steps to be taken to investigate the plaintiff’s work and medical history, and the circumstances of the matter generally, it would be prudent to put such action into effect.
19. Having made this promising start the solicitors did not communicate again with the insurer or the employer until after the limitation period had expired. I have adverted in other decisions to the fact that a plaintiff has a year to serve originating process, so that a prudent insurer would not assume that its risk of proceedings has passed until a year after the expiry of the limitation period. In the present case proceedings were commenced just over six months out of time and well within that 12-month period. The explanations by the plaintiff and the solicitors for the delay between May 2005 and August 2007 are not particularly persuasive, although I acknowledge that that is not the only factor for me to take into account.
20. I find the delay of a year after the filing of a defence extraordinary. There is no real explanation for it. I would have expected an explanation by the solicitors, even if that explanation were simply that the matter was overlooked. If that were the explanation it would suggest that the solicitors should carry out a thorough review of their procedures to make sure that other clients are not similarly at risk and to guard against such a thing happening again. Having said that, it does not seem that the defendant’s solicitors did much to keep the matter moving during that year, and there is no doubt that the defendant and the insurer were well aware that proceedings had been commenced and might be pursued.
21. Much of the delay during 2009 is explained by the difficulty encountered by the solicitors on both sides in finding a date convenient to counsel.
22. The principles to be applied in determining an application for an extension of a limitation period are well known. They were set out relatively recently by Higgins CJ in Sessions v Phengsiaroun [2008] ACTSC 132. His Honour there referred 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 the Federal Court of Australia (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 trading as Hyatt Hotel Canberra [2008] ACTSC 20. I shall not repeat His Honour’s analysis of the principles which are set out in detail in Sessions v Phengsiaroun.
23. The considerations to be taken into account on the present application are finely balanced. The explanations for the various delays are not particularly persuasive. 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 the 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.
24. On balance, it seems to me that the justice of the case favours the grant of the extension of time which is sought.
25. The period within which this action may be brought will be extended to 1 August 2007.
26. The plaintiff approaches the Court seeking an indulgence, both in the application for reinstatement and in the application for extension. The necessity for the extension arises in some measure from a failure on the plaintiff’s part to look after his own interests by seeking advice in a timely fashion and by keeping in contact with his solicitor, and in particular keeping his solicitor informed of his change of address. The necessity for the application for reinstatement seems to me to lie wholly at the door of the solicitors, who must be regarded as having contributed to a significant extent to the fact that the action was permitted to become statute-barred. As between the parties, the plaintiff must pay the costs of both applications. Recovery of those costs should be postponed until the conclusion of the substantive proceedings. It is probably unnecessary for me to express the view that the costs of both applications should ultimately be borne by the plaintiff’s solicitors and not by the plaintiff personally.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 5 June 2009

Counsel for the plaintiff: Mr SR Hausfeld
Solicitors for the plaintiff: Maliganis Edwards Johnson
Counsel for the defendant: Mr SH Pilkinton
Solicitors for the defendant: Dibbs Barker Lawyers
Date of hearing: 17 April 2009
Date of judgment: 5 June 2009