Limitation Act 1974 (Tas), s3.

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

Butt v Comalco Aluminium (Bell Bay) Ltd B9/1996; Glover v Southern Cross Homes (Tasmania) Inc 111/1997; Marr v Green 3/1993; Mayne v Kemp 30/1998, considered

Judgment ID Number: [1999] TASSC 23

1 The applicant applies, pursuant to the Limitation Act 1974, s3, or, alternatively, the Workers Rehabilitation and Compensation Act 1988, s135, for an order that the period limited for bringing an action for damages for personal injury, allegedly caused by the negligence or breach of statutory duty of his employer, the respondent, be extended. A writ was filed on behalf of the applicant by his solicitors on 13 November 1998 and, accordingly, if his application is successful, a nunc pro tunc order will give legitimacy to that process. Two affidavits by the applicant and an affidavit by his former solicitor, were filed and read in support of the application. The applicant was cross-examined upon his affidavits and one of the medical practitioners whose report was annexed to the applicant's affidavit, was also cross-examined as to the contents of that report. The respondent did not seek to cross-examine the applicant's former solicitor. The respondent filed no affidavits and called no evidence.

2 The applicant's evidence established to my satisfaction that he commenced employment with the respondent company in November 1991 and ceased that employment in or about January 1995. Throughout that period of time he was employed as a sales clerk at 50 Letitia Street, North Hobart. From time to time his work involved heavy lifting. Before 18 May 1993, the applicant had never sustained an injury to, nor suffered pain in, his lower back. On that day, the applicant was requested by Gordon Nichols, a fellow employee, to assist him unloading a wood heater from the tray of one of the respondent's trucks. The truck was reverse parked into a parking bay at 50 Letitia Street immediately outside the northern roller door entrance way to the building. The tray of the truck was approximately one metre above ground level. At the time, an hydraulic lifting device was generally available to aid in the heavy lifting and transfer of stock and other items but, on the day in question, by reason of the premises being crowded and the passage ways being obstructed, it was not possible for the applicant to bring that hydraulic lifting device to the truck tray for the purpose of assisting in the unloading operation. The unloading was carried out by hand. The wood heater which was being lifted weighed approximately 125 kilograms. The applicant stood on one side of the truck near the rear of the tray and his fellow employee stood on the passenger side near the tray. In that position, the applicant's torso was somewhat twisted and his right arm was higher than his left.

3 As the wood heater was being lowered to the ground, he felt a "twang" sensation in his lower back. This injury caused the back to ache for the rest of the day but it was not unbearable and he continued to work. It worsened over the next few days. Two days after the accident, the applicant consulted Dr Keith Miller of Lindisfarne who gave him a workers compensation certificate, certifying him fit only for light duties. On 28 May 1993, the applicant again saw Dr Miller and on that day also completed a workers compensation claim form which he lodged with the respondent. The respondent accepted the claim and has, from time to time since the accident, paid workers compensation benefits in respect of the applicant's injuries.

4 Notwithstanding the injury to his back, the applicant was able to continue work and did not take any time off work as a result of the injury during the remainder of his employment with the respondent. In fact, he took no time off any work in respect of back pain until January 1998. The applicant says that between 18 May 1993 and October 1996, he suffered episodes of pain in the lower back from time to time with a frequency of approximately six or twelve episodes per year. These aches or pains would generally last a few days and the applicant would take anti-inflammatory medication such as Voltarin to ease the symptoms. Usually, the symptoms were not particularly severe and could be controlled by analgesics and medication.

5 In January 1995, after leaving the respondent's employment, the applicant commenced working on his own account in marketing and advertising. This involved little or no manual work. Nonetheless, the episodes of aching in the lower back continued from time to time. The applicant experienced no fresh traumatic incident which could be regarded as a cause of this pain.

6 In October 1996, the applicant had what appeared to be the commencement of another episode of pain in the lower back but, by the following morning, the pain had intensified. The applicant consulted Dr Miller again and Dr Miller advised him to undertake some x-rays. From October 1996 for a period of about three months, the pain was more or less constant. It began to settle in January or February 1997, but then subsided and flared up again intermittently to the same level that it had been in October 1996. The applicant says, "Since then I have had significant levels of pain on a constant basis".

7 In January or February 1997, the applicant had a CT scan performed and in March 1997, he moved to Sydney to live. He there consulted Dr Robert Johnson, a neurologist, and Dr Johnson referred him to Mr Grant, a neurosurgeon. In a report dated 12 May 1997, written by Dr Johnson to Dr Miller, which was exhibit B to the applicant's first affidavit, Dr Johnson said:

"The man's symptoms are certainly consistent with a lumbo-sacral disc problem, I being surprised that on his CT scan which was obtained in February 1997, when his symptoms were relatively quiescent, there was a significant central and left lateral L5/S1 disc protrusion with a suggestion of fragment of the disc behind the S1 vertebral body. This is so marked I fear he is going to have further problems unless surgical intervention is considered, even though for the moment he is relatively pain-free."

8 In a subsequent report to the applicant's solicitor on 19 December 1997, Dr Johnson expressed the view that the injury described was consistent with a strain injury to the lumbo-sacral spine of a kind which could have been caused by the lifting incident complained of by the applicant. Dr Johnson also expressed the opinion that this had resulted in a twenty to thirty per cent permanent disability of the applicant.

9 If leave to proceed is granted, the applicant proposes to deliver a statement of claim alleging negligence and breach of statutory duty on the part of his former employer. The allegations of negligence will be based upon the claim that the respondent instructed or permitted the applicant to attempt to assist in the removal of the wood heater from the truck without the assistance of a mechanical lifting device or without giving him adequate instruction or training in safe lifting techniques. Alternative allegations will be made that the respondent failed to ensure that the lifting device which it had at Letitia Street was adequately accessible for use in the removal of the wood heater, that the respondent failed to take reasonable steps to ensure the wood heater was removed from the truck using a mechanical lifting device and that the respondent failed to otherwise provide a safe system for removal of the wood heater.

10 The claim for breach of statutory duty will include the allegations that the respondent failed to comply with the Industrial Safety Health & Welfare Act 1997, s32 in that the respondent failed to take reasonable precautions to ensure the health and safety of the applicant and also failed to comply with the Industrial Safety Health & Welfare (Administrative & General) Regulations 1979, reg192A in that it caused or permitted the applicant to undertake manual handling not in accordance with the national standards of manual handling published by the National Occupational Health and Safety Commission.

11 In my opinion, on the basis of the facts set out above, the applicant has shown a good arguable prima facie case, both of negligence and breach of statutory duty. As pointed out by Zeeman J in Butt v Comalco Aluminium (Bell Bay) Ltd B9/1996 at 9, it is not a prerequisite to the granting of an order of the kind currently sought that the applicant has established an arguable case. Nonetheless, in the present circumstances, I am satisfied that an arguable prima facie case has been demonstrated. Indeed, it was but faintly argued to the contrary. The respondent's real basis for resisting an order of the kind sought was based upon the submission that the applicant had been guilty of unreasonable and unexplained delay in prosecuting his claim and further that the prospect of substantial prejudice to the respondent would render it unjust for the claim to proceed further.

12 The applicant's explanation for his delay is of a twofold nature. In the first place, he says that the injury to the back did not manifest itself in a severely disabling form until after the three year time limit for instituting proceedings had expired. Those claims for workers compensation benefits which he made prior to October 1996, were met by the respondent or its insurers. The pain which he experienced in the back was not significantly disabling and he was able to work, notwithstanding this disability. In these circumstances the applicant saw no need to seek legal advice or make a claim for damages. I have previously accepted an explanation of this kind as reasonable (see Glover v Southern Cross Homes (Tasmania) Inc 111/1997 at 4, and I see no reason to adopt a contrary view on this occasion.

13 The applicant says that he did not become seriously concerned about his injury until about February 1997 when he received the results of the CT scan which suggested damage to the spine. This worry was increased following his consultation with Dr Johnson in May 1997 and he first sought advice from a solicitor in respect of the matter in June 1997 when he consulted a firm of solicitors in North Sydney. However, he was advised by them that as the matter was governed by Tasmanian law, they would be unable to assist him. In July 1997, the applicant consulted a solicitor at Messrs Henry Wherritt & Benjamin in Hobart. This contact was by telephone. Prior to this, the applicant was not aware of the nature of a "common law claim" and was unaware that time limits may apply to any claim that he might have in respect of his injury. The applicant said that his primary concern in consulting the solicitors both in Sydney and Hobart was to ensure that his medical expenses were met by the respondent's insurers.

14 It seems plain enough, both from the evidence of the applicant and his former Hobart solicitor's affidavit, that the prospect of a common law claim was first discussed in July 1997. The applicant was told that in view of the time limit applicable to such cases, he would need to apply for an extension of time to make a common law claim for damages and that this should be done "soon". He was also advised that he must be able to prove fault or negligence by his employer and during his discussions with his solicitor, the applicant expressed the view that he did not think his injuries were "really his employer's fault". It seems clear, however, that his solicitor did not take full instructions as to the circumstances of the accident and did not himself express a view as to whether those circumstances would justify a common law claim based upon negligence or breach of statutory duty. It seems fairly plain from the combined effect of the applicant's evidence and the affidavit of his former solicitor, that although the right to make a common law claim was explained in general terms, no advice was given on the basis of the relevant facts that such a claim would probably be successful in the circumstances of this case.

15 Having regard to the way in which the matter was dealt with, I can only conclude that the advice tendered to the applicant at that time was materially defective. As the applicant said in his affidavit:

"At the time I had not received any advice on what was meant by the term 'negligence' or whether my case would fall within negligence by my employer. I thought that proving 'negligence' required me to be able to prove some direct reckless action causative of my injuries on the part of my employer or a fellow employee. I did not see that as being present in my case, because the direct cause of my injury was conduct on the part of myself (and not of others) in lifting the wood heater."

I do not see this as an unreasonable or unlikely conclusion for a layman to have reached in the circumstances and I therefore see it as appropriate to assess the applicant's explanation for his delay in instituting proceedings in accordance with the principles which I attempted to explain in Marr v Green 3/1993 at 3. I am also of the opinion that the advice tendered to the applicant by his solicitor at that stage was less than complete in that the solicitor did not bring to his attention, the urgency of acting quickly and filing an application to extend time without delay. The applicant says he believed that he could delay making a final decision as to whether to make a common law claim until May 1999. I am satisfied that this was the applicant's state of belief and that he made no conscious decision to abandon his claim at any relevant time.

16 The applicant had contact with his Hobart solicitor from time to time, up until May 1998 when he had a meeting with his solicitor after he had travelled to Hobart for the principal purpose of discussing a spinal operation with Mr Liddell, a neurosurgeon. Following this consultation with his solicitor, the applicant became dissatisfied and formed the opinion that it would be in his best interests to seek alternative legal advice. He then returned to Sydney and contacted another Hobart firm by telephone, but was not happy with the proposed terms of retainer put to him by that firm. He was, however, advised by the solicitor to whom he spoke that the application for an extension of time ought to have been made promptly.

17 On 5 August 1998, the applicant spoke to his present solicitor, Mr Hudson, for the first time. Their conversation was by telephone and the applicant provided Mr Hudson with appropriate instructions. After an initial slight delay during which arrangements were made to obtain his file from his former solicitors, Mr Hudson secured access to that file and, on 3 September 1998, Mr Hudson telephoned Mr Worsley, solicitor for the respondent, who fairly and properly agreed that time would not be held against the applicant from that point on unless there was further inexcusable delay. It is not necessary to detail the history of these proceedings thereafter because it has not been suggested that any inexcusable delay has taken place.

18 Assessing the whole of the applicant's conduct up to and including 3 September 1998 and taking account of the extent to which any delay was occasioned by deficient legal advice, I am satisfied that a satisfactory explanation has been given for that delay and that the current application should not fail by reason of any such delay.

19 I turn therefore to the question of prejudice and I think it is important to note at the outset that a formal workers compensation claim was lodged by the applicant within ten days after the event which he alleges caused his current back problems. It should also be noted that the matter appears to have been generally investigated by a loss assessor on behalf of the respondent's insurers in February 1997, at which time a full statement was obtained from the applicant as to the circumstances in which the accident occurred and his history of pain and discomfort thereafter. The applicant was cross-examined at some length as to the circumstances in which this statement was compiled and although it is plain that some evidence may need to be taken from the loss assessor who took that statement, I think it is potentially significant that the typed version of the statement contains material, specifically in par19 of the typed document, which was not in the hand-written draft. For present purposes, I am prepared to accept the applicant's explanation of this discrepancy, but its final relevance may need to await the outcome of further proceedings.

20 An assessment of the relevance of prejudice, or possible prejudice, to a prospective respondent cannot be undertaken without an appreciation of the principles recently discussed by the High Court in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541. There is no need to quote the material parts of the judgments given in that case which have been reproduced in judgments of this Court on many occasions in the recent past. It is sufficient to say that I am satisfied that there has been no specific prejudice to the respondent and that any general prejudice is likely to be slight. There is no reason for concluding that the respondent will be unable to properly defend its case, nor is there any significant chance of that prospect in the circumstances as I see them.

21 It was submitted by counsel for the respondent that circumstances existed here which were not dissimilar from those in Mayne v Kemp 30/1998 where the delay by the applicant had created a substantial difficulty for the respondent in attempting to disentangle the competing causes for the spinal injury there in question. I do not see the present case as presenting any similar difficulties for the present respondent.

22 Acknowledging that the onus is upon the applicant to show that the justice of the case favours the granting of an extension of time, I have come to the conclusion that the applicant should be permitted to proceed. I therefore exercise my discretion and will make an order accordingly. I will hear counsel as to the terms in which that order should be made.