Court of Appeal (Qld)|2007-07-13|Before: Williams and Holmes JJA and Fryberg J, Separate, reasons for judgment of each member of the Court, each concurring as to the, order made
Williams and Holmes JJA and Fryberg J, Separate, reasons for judgment of each member of the Court, each concurring as to the, order made
Catchwords
APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – INTERFERENCE
WITH DISCRETION OF COURT BELOW – IN GENERAL –
FAILURE TO EXERCISE
DISCRETION – where applicant sustained a workplace injury in June 2003
Source
Original judgment source is linked above.
Catchwords
APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – INTERFERENCEWITH DISCRETION OF COURT BELOW – IN GENERAL –FAILURE TO EXERCISEDISCRETION – where applicant sustained a workplace injury in June 2003– where applicant did notlodge an application for compensation under theWorkers' Compensation and Rehabilitation Act 2003 (Qld) until July 2006– where applicant sought an extension of the relevant limitation period– where respondent did notreceive notice of the injury prior to 15 August2006 – where trial judge found prejudice had been suffered – whethertrial judge misapplied the law to the facts – whether leave should begrantedLIMITATION OF ACTIONS – POSTPONEMENT OF THE BAR – EXTENSION OFPERIOD – CAUSE OF ACTION IN RESPECT OF PERSONAL INJURIES- KNOWLEDGE OFMATERIAL FACTS – where applicant submitted that she was unaware of theseriousness of the injury until 2006and that this accounted for the delay– whether reasonable steps were taken to ascertain the facts
Limitation of Actions Act 1974 (Qld), s 31
Personal
Injuries Proceedings Act 2002 (Qld), s 18(1)(c), s 43
Brisbane South Regional Authority v Taylor [1996] HCA 25
(1996) 186 CLR 541, cited
Healy v Femdale Pty Ltd [1993] QCA 210, cited
Jackson v Claric
Ninety Five P/L [2005]
QSC 374
SC 7134 of 2005, 15 December 2005, cited
Judgment (76 paragraphs)
[1]
[1] WILLIAMS JA: This is an application for leave to appeal from the refusal of a District Court judge to extend the applicable limitation period with respect to the applicant's claim for damages for negligence against the respondent arising out of an incident which occurred on 23 June 2003. The original application was made pursuant to s 31 of the Limitation of Actions Act 1974 (Qld).
(iv) 2 October 2006 - order granting leave to start proceedings pursuant to s 18(1)(c)(ii) and s 43 of the Personal Injuries Proceedings Act on condition that before 10 November 2006 the applicant file an application for an extension of the applicable limitation period;
[4]
(v) 9 October 2006 - claim and statement of claim filed;
(vii) 2 February 2007 - application pursuant to s 31 dismissed.
[7]
[3] The learned District Court judge on the application in question concluded that "a reasonable person in the position of the applicant should have sought medical advice and investigation as to the reason for her ongoing pain earlier than she did", and he stated that that finding "really suffices to result in the dismissal of the application"; but he also went on to consider whether prejudice had been established. After referring to material placed before him on behalf of the respondent he came to the conclusion "that the case of prejudice has been established and has not been refuted by the applicant."
[8]
[4] It was in those circumstances that he refused the application for an extension of the limitation period.
[9]
[5] According to allegations in the statement of claim filed 9 October 2003 the applicant was employed on 23 June 2003 by Ajax Cooke Pty Ltd trading under the firm name of Nylex Consumer Products. It appears that the applicant did not lodge an application for compensation pursuant to the Workers' Compensation and Rehabilitation Act2003 (Qld) until 13 July 2006. In that application she named her employer as "Nylex Consumer" and her occupation as account manager. From the various statements made by the applicant it appears that on the day in question she had been sent by her employer to premises of the respondent at Olsen Avenue, Southport, to rearrange Nylex stock within those premises. In other words, in the course of her employment with Nylex Consumer products she was performing tasks at the premises of the respondent.
[10]
[6] The applicant has given several accounts of what occurred on 23 June 2003 and in the circumstances it is necessary to refer to the various versions.
[11]
[7] In the application for workers' compensation dated 13 July 2006 it was alleged that the applicant sustained "tendon damage to her left shoulder" whilst "lifting tubs of nails from high shelving to lower shelving". In a supplementary statement to WorkCover dated 20 July 2006 the following relevant paragraph appears:
[12]
"On 23 June 2003 I started work at about 8:30am at Bunnings Southport. I was there to do a relay which is re-arranging stock. Sometime during the morning on this day I was pulling down 5kg tubs of nails from a shelf above my head and placed the tubs on the floor to move to a different shelf. When I was removing two of tubs weighing about 10kg from a shelf above my head I bend down to place the tubs on the floor and felt pain in my left shoulder. The pain was sharp and was going down from my neck on the left side down my left arm towards the left elbow. I continued working but the pain was still in my neck, shoulder and arm for the rest of the day. I was working with another Account Manager Adrian Brown and said to him as soon as I felt the pain, 'I think I have hurt my shoulder'. I don't recall what he said but we both continued working. When I started work that day I was fine I drove to Southport from Brisbane and was feeling fine. I have never had any left neck, shoulder or arm injuries or pain before this date. I finished work at about 5pm and drove home. The left shoulder was ok when I was driving home but as I was getting closer to home the left shoulder became like a 'dead arm' it felt like my left arm had seized up and the pain became a continual ache."
[13]
[8] The applicant completed a Notice of Claim pursuant to the provisions of the Personal Injuries Proceedings Act on or about 15 August 2006. In that notice the following description of the incident was provided:
[14]
"The injured person was working doing a relay of the store to position her employer's products. The injured person was required to move boxes of nails from the top shelf of the store down onto the bottom shelf and push the boxes to the back of the shelf.
In doing this, the injured person was required to stand upon a ladder and reach up, extending her arms completely to grab the boxes of nails from above her. The injured person then had to descend the ladder, squat down and place the boxes of nails upon the bottom shelf and push them to the back.
The injured person was in the process of doing this, carrying two boxes of nails weighing approximately five (5) kilograms each when she felt a sharp pain in her left shoulder."
[15]
[9] In the affidavit of her solicitor filed in support of the application of 21 September 2006 the following account appears:
[16]
"She was using a type of ladder in the performance of her duties, which was the property of the Respondent. The Applicant was required to stand on the ladder and reach above shoulder height into a shelf which was approximately 2 metres above floor level and drag 5kg tubs of nails towards her and place them on the rungs of the ladder before carrying them down to the floor.
The Applicant had carried two tubs of nails weighing 10kg in total down the ladder in her left arm, cradling them against the left side of her body. The floor area in the vicinity of the shelf was covered in stock. The injury to the Applicant's left shoulder and neck occurred as she was bending and twisting in order to place the two tubs of nails on the floor."
[17]
[10] Then in a letter from the applicant's solicitors to the respondent's solicitors of 19 September 2006 the following relevant assertions were made with respect to the alleged negligence of the respondent:
[18]
"all of the equipment used by our client in the performance of her duties at your client's premises - including ladders and 'steps' - were provided by your client. Employees of Nylex (including our client) were required to walk around the store in order to locate the equipment required to perform their duties. Specifically, the type of ladder ... that our client was using at the time of injury was the property of your client;
Our client was using a type of ladder which is approximately 1 metre wide and 2 metres high, with a platform on the top. The ladder was metal, with handrails along each side, and wheels at its base. The ladder was only able to be utilised sideways when accessing items from the shelves. Accordingly, a person using the ladder to access items from the shelves was required to reach over sideways and pull the items towards them.
At the time of injury, our client was removing 5 kilogram tubs of nails from a shelf approximately 2 metres above floor level. She was required to reach into the shelf with her left arm above shoulder level, drag the tubs of nails out from the shelf, place them onto the rungs of the ladder and then carry the tubs down to the floor. Immediately prior to suffering the injury, our client had carried 2 x 5 kilogram tubs of nails down the ladder in her left arm, cradling them against the side of her body, whilst holding onto the hand rail with her right hand. By this time, the floor area in the vicinity of the shelf was covered in stock. Our client was required to bend and twist in order to place the 2 x 5 kilogram tubs on the floor and that was when she sustained the injury."
[19]
[11] In her affidavit filed 28 September 2006 the applicant gives the following account of the incident:
[20]
"I was ... an employee of Ajax Fasteners (now Nylex) and I was rearranging Ajax Fasteners stock when I suffered the injuries.
I was using a type of ladder in the performance of my duties. The ladder was the property of the Respondent. In order to perform my duties, I was required to stand on the ladder and reach above shoulder height into a shelf which was approximately 2 metres above floor level and drag 5kg tubs of nails towards me and place them on the rungs of the ladder before carrying them down to the floor.
I had carried two tubs of nails weighing 10kg in total down the ladder in my left arm, cradling them against the left side of my body. The floor area in the vicinity of the shelf was covered in stock. I suffered an injury to my left shoulder and neck as I was bending and twisting in order to place the two tubs of nails on the floor."
[21]
[12] In the statement of claim filed 9 October 2006 the following relevant allegations are made with respect to the incident. The applicant "was using a ladder supplied by the defendant to reach the shelf". The ladder "was of metal construction and approximately 7 to 8 foot in height with handrails either side of steps leading to a platform at its peak approximately 1 metre square and was mobile, it being on wheels". It was then alleged that "prior to her injury the plaintiff had descended the ladder with two 5kg boxes of nails cradled in her left arm whilst holding onto a handrail with her right hand". Then it is alleged that "immediately prior to the plaintiff's injury the floor surrounding the base of the ladder was cluttered with other boxes and items of stock". The allegation is then that the applicant "had to lean over the boxes and other items of stock surrounding the base of the ladder to place the two 5kg boxes of nails on the floor" and in so doing she was "reaching and twisting to her left". Finally the allegation is that "whilst attempting to so place the two 5kg boxes of nails on the floor the plaintiff experienced pain in her left shoulder and neck whereupon the plaintiff was injured."
[22]
[13] The applicant swore an affidavit on 16 January 2007 in support of the present application. In it she set out a description of the events of 23 June 2003. In that affidavit she said that at the material time she was using a "ladder/platform". Significantly therein she said that prior to the injury she "had been relaying stock for a period of time, placing boxes of nails on the floor in the vicinity." She was working alongside a fellow employee, but they were "working independently of each other". She then went on to give an extremely detailed account of what happened:
[23]
"9. I stepped off the ladder at the base and turned and began to bend, intending to place the boxes on the floor immediately adjacent to the ladder at the left side of my body and in front of the shelves. However, as I started to do this, I realised that boxes had already been placed in this position on the floor, forcing me to place the boxes further to my left along, in front of the shelves.
10. As I was already in the process of lowering the boxes, I realised that my left foot was unable to swivel or step to the left, in order to balance my body for placement of the boxes in the new position, my left foot being blocked by the boxes on the floor. At this point, I was beginning to lose balance and proceeded with the motion to place the boxes on the floor further along to the left by reaching out.
11. My posture was one where I was bent forward towards the shelves with the boxes under my left arm now moving away from my body and assisted to some extent by my right hand. As I was unable to move my feet, I lifted the boxes away from my left side with my fingers hooked under the far side of the two boxes, my elbow rising, my forearm remaining near vertical and my upper arm moving toward horizontal.
12. In lowering the boxes to the floor without dropping them, I had to bend deeply and hold the boxes out from myself, as described above, but moving the boxes further away by what I believe to have been protraction of my left shoulder blade around the ribcage and also turning of the boxes toward the front direction of my body by rotating my left arm with support provided by my right hand to prevent dislodgement of the boxes from my hand. It was at this point that I experienced pain in my left shoulder as I placed the boxes onto the floor."
[24]
[14] The applicant was cross-examined on the hearing of the application for an extension of the limitation period. Relevantly during the course of that evidence the following answers were given:
[25]
"Q. How many boxes had you moved prior to this incident where you decided to pick up two under one arm? - A. I can't say how many. It may have been 10, 12, I'm not sure. I was just working - work my way through the stock.
Q. Right. And what did you do with them when you moved the 10 or 12 as you worked through the stock? - A. I would have been - would have put them at a space on the floor where they had to be relayed into the shelving.
...
Q. There was nothing wrong with the platform you were using, was there? - A. The platform was right at the top.
Q. Well, the steps up to the platform? - A. No.
Q. To perform your duties? - A. No, a bit wobbly but.
Q. Okay. You didn't request any assistance from anyone to help do your job that day from Bunnings? - A. Not directly. We were just told if there was any staff members available they could help. We were always told if they were not busy.
Q. This is by the person who you can't whether they were male or female or their position? - A. That's correct.
Q. His Honour: Were the steps wobbly or the platform or both? - A. The whole ladder is wobbly. They don't - it wasn't balanced right on the floor.
Q. Did that have any impact on the incident? - A. Just looking back myself, I don't think but that may have been why I didn't go back and put them back on the ladder - on the step. The ladder was very - I don't class it as safe. It was very off balance. You had to - when you go up the ladder you virtually got to hang onto the shelving to brace yourself, so, yeah."
[26]
[15] In the Notice of Claim pursuant to the Personal Injuries Proceedings Act lodged on or about 15 August 2006 the following particulars of negligence against the respondent were alleged:
[27]
"1. Failing to provide and maintain a safe system for the injured person to undertake her contracted work;
2. Failing to provide and maintain safe and adequate plant and equipment, in particular, failing to ensure that adequate ladders were supplied;
3. Failing to ensure that the premises was free from risk of injury;
4. Failing to take adequate steps to ensure that the injured person could carry out her contracted duties in safety; and
5. Exposing the injured person to a risk of injury or loss of which the Respondent knew, or ought to have known."
[28]
[16] Then in the statement of claim various particulars of negligence on the part of the respondent were alleged. The particulars of significance for present purposes are the following:
[29]
"(b) failing to provide the plaintiff with adequate plant and equipment for the performance of her employment duties whilst on the premises, namely a 'wave';
(c) failing to provide the plaintiff with any or any adequate manual assistance for the performance of her employment duties whilst on the premises;
(d) causing or allowing the floor space surrounding the said ladder to become cluttered with boxes and/or other stock;
(e) failing to block off or otherwise restrict access by members of the public and other persons to the aisle in which the plaintiff was performing her duties, in order that the plaintiff had adequate space to so perform her duties."
[30]
[17] The "wave" referred to in that pleading is apparently an elevated working platform.
[31]
[18] In the statement to WorkCover of 20 July 2006 (quoted above in paragraph [7]) the applicant stated that she "never had any left neck, shoulder or arm injuries or pain before" 23 June 2003. That is not correct. She made a claim for workers' compensation with respect to an injury sustained in the course of her employment on 15 March 1999. In her application she described the injury as a "strain" and said it was to her "left arm". The incident allegedly happened when she was "pulling out a 25kg carton of nails and the lid broke". Amongst the medical records placed before the Court are notes by Dr McPhillips indicating an examination on 15 March 1999 with respect to "L.shoulder pain". On examination he noted "tender over triceps, adductor muscles." Painkillers were prescribed and at a follow up examination on 18 March 1999 the doctor recorded that the left arm was "better" and the applicant was cleared for work.
[32]
[19] In an affidavit sworn 6 December 2006 the applicant said that: "Notwithstanding the symptoms suffered by me as a result of the accident on 23rd June 2003 I continued at work, even in spite of the flare-ups caused by other work related activities." The applicant consulted Dr McPhillips on 24 June 2003, the day after the incident, on that day he issued a certificate indicating she should be placed on "restricted work duties in relation to lifting and carrying with the left arm" until 1 July 2003. He described the injury as "rotator cuff L shoulder strain". By 1 July her condition had improved and on that day the doctor cleared her to resume normal duties. The applicant did not consult him again until 22 June 2006 in relation to problems with her left shoulder.
[33]
[20] The material also discloses that the applicant suffered an injury to her left shoulder in June 2005. That incident is recorded in the report of Dr Livingstone of 8 August 2006 as follows:
[34]
"...she tripped and fell onto the left side, taking most of the weight on her left buttock, but also some strain on the left shoulder region which became a little more painful at the time but within a week had returned to the long term grumbling ache described above following her 2003 incident."
That incident is also referred to in the applicant's statement to WorkCover of 20 July 2006.
[35]
[21] Then in her affidavit of 28 September 2006 the applicant refers to a further injury she suffered to her left shoulder on 14 October 2005. Relevantly she there said:
[36]
"It was not until 14 October 2005 when I suffered a further injury whilst working at Bli Bli Hardware that I felt what I would describe as excruciating pain. This pain was suffered when I was performing the type of activity that I would not ordinarily expect to cause me any discomfort. I was simply assisting a co-worker ... to carry a container weighing approximately 40kg from the store to my car. As I soon as I lifted the container with my left hand, I felt sudden, sharp pain from the top of my left shoulder down to my left elbow. I dropped the container immediately.
On 14 October 2005, I suffered the most severe pain that I had ever experienced in my left shoulder. I was in agony for the rest of the day, but I had to keep on working. It was (and still is) the most acute pain I have experienced in my left shoulder just by doing something that I believe would not have caused me any discomfort had I not suffered the initial injury on 23 June 2003."
[37]
[22] Significantly the applicant did not consult a doctor with respect to the injuries sustained in June and October 2005.
[38]
[23] Then in her affidavit of 6 December 2006 the applicant says that it was "not until June 2006, when my symptoms were exacerbated by innocuous activities" that she consulted a doctor. In her statement to WorkCover of 20 July 2006 she said this in relation to June 2006:
[39]
"On 20 June 2006 I had a really bad night's sleep. I couldn't roll over because when I put any pressure on my left hand I was having shooting pains up my left arm to my left shoulder. The next morning I went to work and advised ... my boss that I don't think that I can go to the trade show because I am in a lot of pain with my left shoulder and pain in my left neck. ... I was in pain at the show all night, I got home at about 10.30pm and could not sleep again because I was in a lot of pain with the left shoulder. The pain was now shooting up into my neck."
[40]
[24] The applicant consulted Dr McPhillips on 22 June 2006 and in his affidavit he referred to that consultation:
[41]
"It was not until 22 June 2006 that the Applicant again consulted me in relation to problems with her left shoulder. From 1 July 2003 until 22 June 2006, I have not been consulted by the Applicant in relation to any ongoing problems associated with her left shoulder, nor was I aware of any such problems.
When I examined the Applicant on 22 June 2006, I noted limited movement in her left shoulder. Accordingly, I recommended that the Applicant undergo x-ray and ultrasound investigations of her left shoulder...
...
At that time, I confirmed a diagnosis of calcific tendonitis in the Applicant's left shoulder.
Over a period of time, calcium has been deposited in the tendon. It is probable that the original injury suffered on 23 June 2003 was the triggering factor for the development of the Applicant's calcific tendonitis."
[42]
[25] In her affidavit of 6 December 2006 the applicant deposed:
[43]
"From 17 July 2006 until present, I have not been able to work due to the injuries to my left shoulder. I do not know when I will be able to return to work and I am concerned that the injuries to my left shoulder make it unlikely that I will be able to return to work in my previous position of Account Manager due to the amount of driving and lifting involved. I have appreciated since 17th July 2006 that the injury suffered by me on 23rd June 2003 is now likely to result in economic loss."
[44]
[26] As already noted the applicant completed a Notice of Claim form pursuant to the provisions of the Personal Injuries Proceedings Act on or about 15 August 2006. An extract from that document is set out in paragraph [8] of these reasons. That Notice was forwarded to the respondent under cover of a letter from the applicant's solicitors dated 15 August 2006. That was the first indication to the respondent that the applicant had sustained an injury on the respondent's premises on 23 June 2003, and was holding the respondent liable for the damages so sustained. In the reply from the respondent's legal representatives of 22 August 2006 the following assertions were made:
[45]
"Our initial enquiries with Bunnings suggest they did not know about this incident until now and the layout of the store has changed significantly. Hence, Bunnings have probably been prejudiced by the late notice.
Finally, our understanding of this incident is that your client was positioning her employers' products in the store as part of her employment. Whilst handling her employers' products your client suffered an injury.
There is simply no basis for any liability on the part of Bunnings..."
[46]
[27] Then in a response from the applicant's solicitors dated 6 September 2006 the following appeared:
[47]
"Our client cannot specifically recall notifying any employees of your client in relation to the incident. However, our client instructs that she was working in close proximity to Bunnings team members when the injuries were sustained and may have mentioned the incident to them. However, our client cannot specifically recall advising any staff member of Bunnings of the incident. Our client instructs that she could have mentioned the incident to Bunnings staff during the course of the day. No incident report was completed at Bunnings."
[48]
[28] In subsequent correspondence the respondent asserted it had no record of the respondent suffering any injury at its store.
[49]
[29] The solicitors for the respondent have contacted, or attempted to contact, staff employed at Bunnings Warehouse Southport on 23 June 2003. D G Brandt who was the complex manager of Bunnings Warehouse at Southport on 23 June 2003 placed before the court in an affidavit the names of employees on that date, and the affidavit of F Chio deals with attempts to obtain any relevant information from those persons. Those with whom contact has been made have no recollection of any incident involving the applicant on 23 June 2003.
[50]
[30] W Thomas, currently operations manager at Bunnings Warehouse Southport, swore an affidavit in which he deposed to the fact that Bunnings does not have any record of the applicant having suffered an injury or having been involved in an incident on or about 23 June 2003. He also deposes to the fact that the shelving in question has been reconfigured on at least two occasions since June 2003, and it is not possible now to identify the shelving configuration which was in place as at 23 June 2003. He also deposes to the fact that there were a number of different types of ladders available for use by staff members as at 23 June 2003 and it is now impossible to identify the particular ladder being used by the applicant at the time she suffered her alleged injury.
[51]
[31] In those circumstances there is no evidence on which a finding could be made that the respondent was aware of the alleged incident prior to receipt of the letter of 15 August 2006.
[52]
[32] It was in those circumstances that the learned District Court judge had to consider the application for an extension of the limitation period.
[53]
[33] The judge considered that the applicant had "established a sufficiently arguable right of action" so that element of s 31 was satisfied. He then went on to consider whether she had established "that a material fact of a decisive character was not within her means of knowledge until after the relevant date" which was 23 June 2005. Counsel for the applicant contended that the relevant material fact was the "diagnosis of calcific tendonitis in the left shoulder which Dr McPhillips told the applicant about on 3 July 2006." The judge then referred to the decision of this court in Healy v Femdale Pty Ltd[1993] QCA 210 and quoted extensively from the various statements made by the applicant about the incident of 23 June 2003 and its consequences.
[54]
[34] Ultimately he concluded that it was "clear that she experienced ongoing symptoms" with respect to her left shoulder and in consequence "a reasonable person in the position of the applicant should have sought medical advice and investigation as to the reason for her on-going pain."
[55]
[35] In essence the learned judge at first instance concluded that though the applicant may not have known she was suffering "calcific tendonitis" she was aware at all times from 23 June 2003 that she had significant pain in her left shoulder. The applicant gave no satisfactory reason for not consulting a doctor between 1 July 2003 and 22 June 2006. Even when, on her evidence, she "suffered the most severe pain that I have ever experienced in my left shoulder" in October 2005 she did not consult a doctor.
[56]
[36] It was clearly open to the judge at first instance to conclude that the applicant did not take all reasonable steps to find out what was causing her pain in the left shoulder and that if she had consulted a doctor, as a reasonable person would have, she would have been made aware of the extent of her injury and the consequences of it to her. In those circumstances she did not establish that a material of fact of a decisive character relating to the right of action was not within her means of knowledge until after 23 June 2005.
[57]
[37] Further, and more importantly, as already noted the learned judge at first instance found that a case of prejudice had been established. Relevantly in that regard the learned judge said in his reasons:
[58]
"In cross-examination today the applicant raised a number of issues concerning the respondent's potential liability for the incident. She said Bunnings staff advised her when they wanted a reload done and said it had to be done as quickly as possible. She said she was unable to say who had said that. She said she was told she must do her job efficiently and not take more space than necessary and not to inconvenience customers. She also said that there were at least a dozen five kilogram boxes of nails at the base of the ladder. She said she had not placed the boxes there and nor had her co-worker from Ajax Fasteners, Mr Adrian Brown. By inference the applicant must be contending that it was an employee of Bunnings who placed those boxes at the base of the ladder since it is unlikely to have been a customer of the store. It is obviously dangerous to place objects at the base of a ladder when a person is on it, which seems to be the way in which it must have been done in the circumstances described by the applicant here.
She also said that the ladder itself was wobbly. She said it was not very safe.
The applicant also gave evidence here that the incident was mentioned by her to a female employee of Bunnings in the bathroom later the same day. The ladder itself, I think is a potentially significant piece of evidence."
[59]
[38] The judge then referred to the evidence of Thomas quoted above and the difficulties the respondent had in responding to the contention that its staff placed boxes of nails at the base of the ladder. After referring to Brisbane South Regional Authority v Taylor[1996] HCA 25; (1996) 186 CLR 541 and Jackson v Claric Ninety Five Pty Ltd[2005] QSC 374 his Honour concluded that the case of prejudice had been established. He noted, correctly, that the fact that the respondent would have been substantially prejudiced in some ways if the action had been brought within the limitation was irrelevant.
[60]
[39] I have set out at some length the various accounts given of the incident by the applicant because those accounts demonstrate it is not clear on what basis she will ultimately contend the respondent was negligent. There is repeated reference to the unsuitability of the ladder or platform which she was using in carrying out her task. The allegation is made that the respondent was negligent in not providing a proper working platform. If the applicant contends at trial that the respondent was negligent in that regard the allegation could be answered by the respondent in one of the following ways:
[61]
(i) demonstrating that the ladder or platform in fact used was safe and appropriate equipment to use for the task;
[62]
(ii) establishing that the applicant chose the platform or ladder she used when other more suitable working platforms were available to her.
[63]
That is not necessarily an exhaustive statement of the ways that contention could be answered but it suffices for present purposes. The applicant's description of the platform or ladder she was using is so varied that it is now impossible for the respondent to identify the device being used. That means that is now impossible for the respondent to answer allegations such as the ladder or platform was "wobbly".
[64]
[40] Further, in the absence of clear evidence as to the configuration of the shelving it is not possible to give meaningful evidence as to what kind of alternative working platform would have been more suitable.
[65]
[41] It is obvious from the statements quoted above that as time went on the applicant gave more detailed accounts of her bodily movements as she descended the ladder and attempted to place the boxes on the floor. It may be significant that the most detailed account of that is contained in her affidavit of 16 January 2007 which comes after the affidavit of 6 December 2006 of O'Sullivan, an ergonomist and safety consultant.
[66]
[42] Be that as it may, those versions seem to concentrate on the proposition that a risky situation was created by the presence on the floor around the base of the ladder of other boxes of nails. If the presence of those boxes constituted negligence then the negligence would be on the part of the person who put them there. Whilst the applicant admits to putting about a dozen boxes on the floor she contends that the offending boxes were not put there either by herself or by her co-worker. (It seems a little odd that, as the judge found, her evidence was the offending boxes numbered about 12, the very number she says she herself had placed on the floor prior to sustaining the injury.) As the learned judge at first instance said, that must mean that the applicant is alleging that an employee of Bunnings put them there. But no such employee is identified by the applicant, nor does she say that any employee of Bunnings was handling stock in the vicinity. The applicant's case could only be that, if a trial judge believed her, the inference should be drawn that the boxes were put there by someone from Bunnings and in the absence of evidence from the respondent disputing that, a finding to that effect should be made on the balance of probabilities. One has only to state the propositions to see the potential prejudice now facing the respondent.
[67]
[43] Given the lapse of time the respondent is denied the opportunity of placing any evidence before the court relevant to the matters relied by the applicant as establishing negligence on its part. It had no opportunity of investigating the incident of 23 June 2003 until it received the Notice of Claim and accompanying letter dated 15 August 2006.
[68]
[44] The respondent is also precluded from exploring whether the injuries subsequent to 23 June 2003 played a more significant role in the development of calcific tendonitis because of the absence of medical examination between 1 July 2003 and 22 June 2006. If the respondent had been notified of the claim earlier it could have requested a medical examination which could have thrown light on that issue.
[69]
[45] In those circumstances the learned judge at first instance was clearly correct in concluding that prejudice had been established. The application was, in consequence, rightly dismissed.
[70]
[46] In the circumstances the application for leave to appeal should be dismissed with costs.
[71]
[47] HOLMES JA: I have read the reasons of Williams JA and Fryberg J and agree with what both have had to say on the subject of prejudice. The application for leave to appeal should be dismissed.
[72]
[48] FRYBERG J: The applicant conceded that leave was necessary to bring an appeal in this matter. On her behalf Mr Myers submitted that leave should be granted because two important questions of law arose in the proceedings: "what in this particular instance constitutes material facts of a decisive character"; and "what constitutes prejudice for the purposes of denying an applicant a right to proceed with an action so well founded."
[73]
[49] On the face of things neither question sounded like a question of law. That impression was confirmed by the course which the argument took. Essentially the case for the applicant was that the judge at first instance misapplied the law to the facts of the case. I doubt that this is sufficient by itself to warrant a grant of leave. However it is unnecessary to decide the application on that basis.
[74]
[50] Mr Myers submitted that the earliest date on which even arguably the applicant should have consulted a doctor was on or about 14 October 2005. That, he submitted, would justify an extension of the limitation period to at least 14 October 2006, which was sufficient for the applicant's purposes. It followed that to the extent that the judge below focused on 22 June 2006, his Honour was in error. For the purposes of the application I am prepared to assume the correctness of that submission.
[75]
[51] The question of prejudice bore upon the exercise of the judge's discretion. Weighing the evidence on that question, assessing how it would impact upon the prospects of a fair trial and balancing these considerations against the consequences to the applicant were essentially discretionary decisions. In my judgment the applicant failed to show any error capable of founding an appeal against such a decision.
[76]
[52] I also agree with what has been written on this aspect of the matter by Williams JA. I add that the applicant's statement of claim was drawn in very wide terms and was not particularised; and that the applicant's evidence indicated an intention to rely on matters not pleaded in the statement of claim. A plaintiff who approaches an application for an extension of time on that basis takes on a difficult task in relation to the issue of possible prejudice. Mr Myers (who did not settle the statement of claim) submitted that it was hardly likely that a statement of claim would be prepared in final form when leave had not been given to commence an action. I do not accept the implication that it is appropriate for solicitors to file a statement of claim of this quality. Indeed the fact that an application for an extension of time was necessary furnished an additional reason for drafting a comprehensive and precise statement of claim. The course adopted by the applicant made her task even more difficult than it would otherwise have been.