Rajic v Brighton Ceiling Pty Limited [2009] ACTSC 68 (19 June 2009)

Last Updated: 20 July 2009

ROBERT RAJIC v BRIGHTON CEILING PTY LIMITED
[2009] ACTSC 68 (19 June 2009)

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

Civil Law (Wrongs) Act 2002, ch 5
Limitation Act 1936, s 36

Sessions v Phengsiaroun [2008] ACTSC 132
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Hamilton v Madden [2007] ACTSC 89
Brozinic v PHC Operations Pty Limited trading as Hyatt Hotel Canberra [2008] ACTSC 20

No. SC 699 of 2008

Judge: Master Harper
Supreme Court of the ACT
Date: 19 June 2009

IN THE SUPREME COURT OF THE )
) No. SC 699 of 2008
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ROBERT RAJIC

Plaintiff

AND: BRIGHTON CEILING PTY LIMITED

Defendant

ORDER

Judge: Master Harper
Date: 19 June 2009
Place: Canberra

THE COURT ORDERS THAT:

1. The period within which this action may be brought be extended to 27 August 2008.
2. The plaintiff pay the costs of the application.
3. Those costs not be recoverable until final orders are made in the action.

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 1 July 2005. He made a claim for workers’ compensation with the employer’s insurer. The insurer had instructed the solicitors presently acting for the defendant by 13 September 2005, on which date the solicitors instructed a firm of investigators to conduct a factual investigation in respect of the plaintiff’s employment and the circumstances of the injury. Whilst the solicitors did not specifically ask for advice as to the likelihood of a claim for damages being brought, or the prospects of such a claim succeeding, the investigators reported on 4 October 2005 at length, and included comments as to common law potential in their report. They had interviewed potential witnesses and included statements with their report.
3. The investigators provided a supplementary report on 20 October 2005, and a further report on 22 November 2005.
4. On 27 October 2005 a firm of solicitors initially instructed by the plaintiff served a notice of intention to claim damages pursuant to chapter 5 of the Civil Law (Wrongs) Act 2002.
5. The solicitors now acting for the plaintiff were instructed in January 2006. The partner in the firm having the conduct of the matter frankly admits that he omitted to note the date of expiry of the limitation period (1 July 2008) as he would normally have done, and that he overlooked the necessity to commence proceedings by that date.
6. I am satisfied that he omitted to inform the plaintiff of the existence and significance of the limitation period, and that the plaintiff was personally unaware of it until it had expired. Proceedings were commenced by originating claim on 27 August 2008, eight weeks after the expiry of the limitation period.
7. Counsel for the defendant points to one matter which he submits amounts to actual prejudice if the limitation period is extended. On 22 September 2005 the investigators engaged by the solicitors for the defendant spoke with a fellow employee identified as Samir Junior. They recorded brief notes of what he told them but did not prepare a statement by him or obtain his full name, address or any other details about him. They provided this material to the solicitors with their report of 4 October 2005. Counsel submits that Samir Junior cannot now be found and that the defendant has lost the opportunity to call him on hearing as a witness.
8. I am not satisfied that this is a matter about which the defendant can fairly complain. The significance, if any, of the evidence of Samir Junior should have been apparent to the investigators and to the solicitors in October 2005. There was ample opportunity then to follow this up and at least to obtain contact details for him, and preferably to obtain a signed statement. I can only assume that their omission to do so was a result of a forensic decision taken at the time. I recognise that the practicalities of litigation and of claims administration do not permit every aspect of every claim to be followed up in a detailed manner, and that time and cost dictate some economies and choices.
9. The present application to extend time was made on 4 March 2009. It was not submitted that there was any delay requiring explanation between the delivery of the defendant’s defence pleading the limitation issue and the making of the application.
10. The Court has a discretion under section 36 of the Limitation Act 1936 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 discretion. The list is not exhaustive and the Court is required to have regard to all the circumstances of the case. The listed factors include the length of and reasons for the delay on the part of the plaintiff, and the extent to which there is likely to be prejudice to the defendant. 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.
11. So far as the plaintiff personally is concerned, I am satisfied that he instructed solicitors within a reasonably short period after the injury, and that he relied on his solicitors to look after his interests. He was personally unaware of the limitation period and no criticism can reasonably attach to him for the fact that proceedings were not commenced in time.
12. The present solicitors for the plaintiff frankly concede that they permitted the limitation period to expire through inadvertence. Their explanation for doing so can hardly be categorised as satisfactory, but that is not the only factor for me to take into account.
13. The principles to be applied in determining an application for an extension of a limitation period are well known. They were set out 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 to previous decisions of this court in Hamilton v Madden [2007] ACTSC 89 and Brozinic v PHC Operations Pty Limited trading as Hyatt Hotel Canberra [2008] ACTSC 20. I need not repeat His Honour’s analysis of the principles.
14. I acknowledge the general presumption that delay inevitably leads to some prejudice, and I take account of the particular asserted prejudice in relation to the lost witness. I am not satisfied that there is likely to be any significant prejudice caused to the defendant or the insurer if the extension is granted. The delay is brief and I am satisfied that the defendant has not lost its right to a fair trial.
15. The justice of the case favours the grant of the extension. The period of time within which the action may be brought will be extended to 27 August 2008.
16. As between the parties, the plaintiff must pay the costs of the application. Recovery of those costs should be postponed until the conclusion of the substantive proceedings. The additional costs occasioned by the necessity to bring this application should, it goes without saying, ultimately be borne by the solicitors and not by the plaintiff personally.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 19 June 2009

Counsel for the plaintiff: Mr ID Bradfield
Solicitors for the plaintiff: Capital Lawyers
Counsel for the defendant: Mr GJ Lunney SC
Solicitors for the defendant: Moray & Agnew
Date of hearing: 12 June 2009
Date of judgment: 19 June 2009