Judgment Number: [1999] TASSC 94

GEORGINA COLLINGWOOD v ST LUKES (ANGLICAN CHURCH IN AUSTRALIA) ASSOCIATION (ACN 009 478 353) T/A BISHOP DAVIES COURT

1 On 29 October 1996, the applicant issued a writ claiming damages for injuries she suffered in the course of employment with the respondent on or about 27 February 1991. The applicant also issued an application seeking an extension of the time within which she might institute proceedings against the respondent.

2 The applicant has received workers compensation from the respondent for the injuries which are the subject of her action and, in consequence, her application for an extension of time is made pursuant to the Workers Rehabilitation and Compensation Act 1988, s135(2).

3 The onus is on the applicant to establish that the justice of the case favours the granting of the extension sought. Relevant matters are; the explanation for the delay, the applicant's prospects of establishing a common law claim against the respondent, and prejudice.

4 On 27 February 1991, the applicant, a trained auxiliary nurse, was employed by the respondent at its Kingston Nursing Home. She was changing the linen on beds. She was initially assisted in that task by another nurse. At the time of her injury, she was being assisted by a nurse's aide. The task was performed by the applicant and her assistant standing on each side of the particular bed and rolling the patient from one side and then to the other so as to enable the linen to be changed. This is a routine nursing task and it was being performed in the usual way. The linen on four beds had been changed before the applicant and a nurse's aide attended to changing soiled linen on the bed of a patient, Mrs Tate. The applicant lent over the side of the bed and rolled Mrs Tate towards herself. She then stood, bent at the waist, holding Mrs Tate's body so that it remained on its side while the nurse's aide cleaned up. Mrs Tate was a heavy woman who had no movement on the right side of her body. The applicant says she stood holding Mrs Tate whilst bent forward at an angle of approximately 30 degrees for perhaps five minutes. The applicant did not feel any pain or experience any unusual discomfort in this position, however, she experienced a sudden, knife-like sharp pain in her lower back as she straightened up.

5 The applicant has not worked since the incident on 27 February 1991. She was then 29 years of age. The incident aggravated degenerative changes in the applicant's lower lumbar spine and, in consequence, it seems that she is no longer able to work. If her disability was caused by the respondent's negligence, she has a potentially substantial claim for damages.

6 The applicant consulted a solicitor, Mr Docking, in relation to the incident, some time prior to 3 July 1991. She consulted him in relation to both her workers compensation and her common law entitlements. Mr Docking informed her that she may have a common law claim against the respondent and wrote to her advising that she had a "strong argument against [her] employer for damages for their want of care". No explanation was given for that opinion. The applicant was not advised of any period of limitation referable to her claim. In January and May 1992, the applicant saw Mr Docking and told him she would not be returning to work. In September 1993, Mr Docking advised the applicant that her common law claim against the respondent was underway and he had done everything that needed to be done.

7 I do not propose detailing the applicant's communications with Mr Docking from late 1993 until she changed solicitors. Suffice it to say that I am satisfied that she reasonably believed that common law proceedings had been instituted on her behalf and she made appropriate efforts to press Mr Docking to expedite the resolution of her claim. On the applicant's evidence, I am satisfied that she was misled about these matters by Mr Docking's obfuscation. I should say that Mr Docking did not give evidence. The applicant's solicitor unsuccessfully endeavoured to arrange for Mr Docking to prepare and file an affidavit.

8 The responsibility of Mr Docking for the delay which occurred during the period that he had the conduct of the applicant's claim, and the blamelessness of the applicant for this delay, is very material and a significant factor to be taken into account; Sophron v The Nominal Defendant (1956 - [1957] HCA 27; 1957) 96 CLR 469 at 474 and Marr v Green (Full Court) 3/1993, per Wright J at 3 - 4.

9 In late 1996, the applicant consulted another solicitor, Mr Worsley. He established that common law proceedings had not been instituted on behalf of the applicant and advised her she needed to apply for an extension of time. A writ was issued on behalf of the applicant against the respondent and, on the same day, an application was issued seeking an extension of the time for her to sue the respondent. The parties agreed to explore the settlement of the applicant's workers compensation and common law claims. The respondent acknowledged that whilst this occurred, it would not rely on any further delay by the applicant in pursuing an extension of time. That concession was withdrawn by the respondent on 2 October 1998. There has been no unreasonable delay by the applicant in pressing on with her application since that date.

10 Matters raised by counsel for the applicant in relation to the respondent's negligence include:

There is nothing before me to suggest that the applicant's injuries were caused by any of the first five matters listed above. As to the failure to provide a height adjustable bed, the applicant says that her injuries were caused because the bed she was working over was too low. She said she had regularly complained to the respondent's supervisors about the height of beds. She said that the height of the particular bed was level with the top of her thighs. The bed occupied by Mrs Tate at the relevant time is known as a Murphy bed, its height, including the mattress, was 660 millimetres. As finances have become available since 1993, the respondent has replaced its Murphy beds with adjustable beds. The height of these beds can be adjusted between 445 millimetres and 787 millimetres.

11 When injured, the applicant was not lifting Mrs Tate. She had been rolled onto her side and was being held in that position. The applicant is 173.5 centimetres tall. Taking into account the width of Mrs Tate, the applicant's hands would have been at about waist height as she supported Mrs Tate. Had the bed been adjustable, and had it been adjusted to its maximum height, Mrs Tate would have been 127 millimetres (approximately two thirds of a hand) higher. I cannot discern how that increase in the height of Mrs Tate's position would have made any difference. Once Mrs Tate was on her side, the applicant had little to do in order to prop her up in that position.

12 Whilst there are many circumstances in which an ability to adjust the height of a bed could avoid the risk of injury, I am unpersuaded that the activity the applicant was involved in when she was injured was one of them. Nothing put before me satisfies me that the applicant's prospects of establishing liability against the respondent are more than speculative. This may afford strong grounds for refusing the application; Butt v Comalco Aluminium (Bell Bay) Ltd B9/1996.

13 The respondent has not sought to prove that as a consequence of the delay in the institution of proceedings it is not able to fairly defend itself or that there is any significant chance that this is so. As to presumptive prejudice (Brisbane South Regional Health Authority v Taylor (1996 - [1996] HCA 25; 1997) 186 CLR 541), I note that the applicant claimed and received weekly compensation from the respondent. The respondent must have been aware of the potential for the applicant to make a common law claim. The respondent acknowledges that a full investigation of the incident was carried out by a loss assessor and it does not assert any prejudice arising from the late investigation of the claim. From at least 31 January 1995, there have been desultory negotiations between the parties on a settlement of the applicant's workers compensation claim.

14 A further relevant factor in the exercise of the Court's discretion is the applicant's potential cause of action against Mr Docking. I agree with the observations of Underwood J in Woolley v Jones (Full Court) A20/1995 at 7, that great caution should be exercised in attaching too much weight to this factor. I add that an alternative cause of action such as this, can present particular difficulties to a plaintiff. To establish liability against the solicitor, the plaintiff must first establish the negligence of the primary tortfeasor. As the primary tortfeasor is not a party to the action, that entity cannot be interrogated and discovery cannot be sought from it. The process of assessing damages can also give rise to difficulties as it involves determining when, in the absence of the solicitor's negligence, the principal action would have come to trial in the ordinary course, and establishing the evidence that would have been available to tender to the court at the time; Johnson v Perez (1988 - [1988] HCA 64; 1989) 166 CLR 351 and Nikolaou v Papasavas, Phillips & Co (1988 - [1989] HCA 11; 1989) 166 CLR 394.

15 I return to the primary question: has the applicant established that the justice of the case favours the granting of the extension sought? Whilst I have not reached a conclusion which is adverse to the applicant in my assessment of the bulk of the relevant factors, I am unpersuaded that her prospects of establishing liability against the respondent are better than speculative. Primarily, for this reason, I am not satisfied that time should be extended. The application is refused.