[2004] TASSC 25

Limitation of Actions - Postponement of the bar - Extension of period - Cause of action in respect of personal injuries - Principles upon which discretion exercised.

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, Hill v Iluka Corporation Ltd [2002] TASSC 113, followed.

Judgment ID Number: [2004] TASSC 25

JENNIFER MARY HOW v COLONIAL CAR RENTAL PTY LTD

1 The applicant seeks an extension of time limited by the Workers Rehabilitation & Compensation Act 1988 ("the Act"), s135, to commence proceedings for damages in respect of an injury said to have occurred during her course of employment with the respondent. Her proposed action is to be grounded in negligence, breach of contract and statutory duty.

2 The date of the injury said to have been a consequence of breach of duty was 26 September 2000. The application for extension was filed on 28 January 2004.

"(1) Where any payment of compensation under this Act in respect of an injury has been accepted by a worker, no proceedings shall be commenced by him, after the expiration of a period of 3 years after the date on which the injury was suffered, against the employer to recover damages in respect of that injury.

(2) Notwithstanding anything in subsection (1), on application made in that behalf by a worker, the Supreme Court or a judge in chambers may, after giving the employer an opportunity of being heard, extend the period referred to in subsection (1) by such further period, not exceeding 3 years, as the Court or judge thinks necessary."

4 On 26 September 2000 the applicant was employed by the respondent as a manager in its Launceston office. Her duties required work at a desk and a computer which was adjacent to but higher than the desk. The chair, used for both items of equipment, was fitted with an adjustment mechanism which enabled her to vary her seating position. The chair was fitted with castors, which given the nature of the office floor, required the applicant to hold onto a stable object when moving onto and from the chair.

5 The applicant's case is that on 26 September she had raised the height of the chair but whilst sitting down, lost her grip on the desk causing the chair to slide backwards causing the applicant to fall heavily to the floor. She claims that the fall caused injury to her left hip, thigh and shoulder. She was away from work due to the injuries for a number of days. A director and general manager of the defendant does not dispute the honesty of her account.

6 The applicant did not make a formal or written claim for compensation in accordance with the provisions of the Act, ss32 and 34. Instead she provided medical certificates to the administration of the company, and their receipt is acknowledged. Mr Richard Crawford, the general manager of the respondent company, says that he was aware of her claim of injury and that he provided her with a workers compensation form at about the time of the claimed accident. It would appear that the applicant lost the original form and, perhaps its replacement, and Mr Crawford averred in his affidavit that it was not until mid-February 2003 that he was provided with a "workers compensation form" which was only supplied as a result of repeated requests by him. The portions of Mr Crawford's affidavit relevant to the initial period of the accident and to notification of the claim are:

"11 Jennifer did complete a workers compensation form and provide it to the Company on 17 February 2003, but only after explicit requests from me for her to do so. I do not know why it took Jennifer so long to complete the forms.

12 I do not recall that Jennifer required much time off work as a result of the accident. I recall that after the accident Jennifer returned to full-time duties at the Launceston office, and that sometime later, I do not recall when, Jennifer's doctor advised that she was unable to wash cars due to her injuries. The Company varied Jennifer's duties accordingly.

13 The first I was aware that Jennifer claimed to have an ongoing problem with her hip was when she asked the Company to pay for the physiotherapy that she was receiving from the Launceston Physio/Sports Therapy Centre at 64 York Street, Launceston in Tasmania. From the physiotherapy invoices I believe that Jennifer commenced physiotherapy in or about 7 December 2001, over twelve months after she claims to have suffered an injury to her hip whilst at work.

14 The medical certificate accompanying Jennifer's workers compensation claim dated 17 February 2003 was dated 5 October 2000. From this medical certificate I understand that at this time Jennifer attended Dr Louise Harwood regarding her injury. Dr Harwood confirmed that Jennifer was fit to return to work on light duties for a period from 5 October 2000 to 13 October 2000. I understand from other medical certificates that Jennifer attended Dr Harwood on a number of occasions as follows:

a) 13 October 2000, at which time Dr Harwood certified that Jennifer was fit to return to work between 13 October 2000 and 27 October 2000 on light duties;

b) 19 October 2000, at which time Dr Harwood certified that Jennifer would be incapacitated to work from 19 October 2000 to 20 October 2000;

c) 27 October 2000, at which time Dr Harwood certified that Jennifer was fit to return to work from 27 October 2000 to 10 November 2000 on light duties.

15 I do not hold any further medical certificates for Jennifer after 27 October 2000 until 16 June 2003 and 9 December 2003 when she claims that she injured herself again whilst at work."

7 The applicant states that she in fact forwarded medical certificates to Mr Crawford through the company's internal mail system. However, she has annexed to her affidavit copies of e-mails dated 28 September 2000, 14 and 23 October 2000, which state:

"Morning just got your message tks for the call. did ring the dr but he was out on an emergency so went up to cas took one look at all the people in there so went home and took 2 pain killers. slept til 1100 yesterday got up went to the couch slept for another couple of hrs. hip and shoulder a bit sore but that will go and feel a bit groggy but that wud be the pain killers. am functioning at about 80% so that o.k.have u got my home no ...63345137. good news about your house where is it? need to talk to u can u ring after 0830?

Good morning, Bad news I'm afraid. Went back to Dr yesterday and she has now admitted that my fall was a lot more serious than she originally thought! I could have told her that and I didn't go to Dr school!!!!!!!. I started physio last week and that brings some relief for a short time. She has continued to put me on light duties until the 27th!!!!!!!!! and it is driving me nuts BUT i am not capable of doing more.

I have to have more physio on Monday and if by tuesday it is still not improving I will ring her and ask for a couple of days off as I feel that from the start I should have been flat on my back to enable the nerves to rest.At this stage I am rostered off Tues and Wed and sat and sun so I thought if I had thurs fri off that wud give me time to have a little lie down.So far sitting and standing is very uncomfortable and driving manual cars is difficult as my left leg and footcramp up. The good news is that physio has gotten rid of the headache and as a result my concentration is improving.

I wud really appreciate your opinion on all this please.

Hi again Sorry about that. he has just gone down town. I'll speak to u later when I know he's gone for sure. In the meantime I did have thurs and fri off but not as planned> I was in absolute agony on wed and couldn't get in to see her (Bloody Woman) and had to wait until thurs at 1550!!! She then decided to give me some anti inflaamatory tabs with the instructions " These may or may not work... You'll know after 2 tablets If they are going to work or not"!!!!! she also gave me some pain killers... all this 4 weeks after the event!!!!!! So As u see my certificate is genuine. At this stage I am still on light duties until the 27th and then I have to go back to her. I am also still having physio which is some help.

I have no confidence in the dr at all as right from the start it seemed as if it was 'just a workers comp case'! I did ask her to explain on thurs what parts wud have been effected when I fell and she couldn't tell me. I wanted to know if it was muscles, nerves or whatever because I am getting pissed off that it is taking so long.

On 6 July 2001 the applicant sent (claims) an e-mail message to Mr Crawford stating:

The nerve damage that I sustained when I fell last year has unfortunately not improved but we are working on ways that will help me cope with it one of which involves drugs but I am not happy about that. At this stage I have another appt with him in 2 weeks so will have to wait and see .

"Thanks for the update Jen - hope your next appointment goes well.

8 The applicant was remiss in her failure to make a proper claim despite repeated requests to do so. The defendant did not notify its insurer but instead paid medical accounts from its own resources and continued to pay the applicant's salary during her periods of absence. It has paid to date some 14 days "sick" pay as a consequence of the injury. In February 2003 Mr Michael Crawford, whose evidence is accepted but for one error stated in his affidavit par 13, stated above, became concerned of the amount paid by the company from its internal resources and pressured the applicant to complete the necessary documentation. She complied and the insurer was notified shortly thereafter. Much of the opposition to the application derives from the failure of the applicant to properly claim compensation. The critique might be valid but these proceedings concern an extension of time for the commencement of common law proceedings with an examination of statutory compliance. It is likely that the applicant neglected to complete the prescribed form because:

(1) she believed her injury to be relatively minor;

(2) she continued to supply medical certificates in accordance with the Act and believed such to be sufficient compliance;

(3) the company continued to pay the medical bills and her salary during periods of absence;

(4) her absences were infrequent and spasmodic; and

(5) the company continued to accommodate her injury by adjusting her work requirements to those of light duties.

In addition the respondent, knowing of the existence of injury through its receipt of the medical certificates bears some responsibility in its failure to notify the insurer.

9 The Court accepts that the applicant promptly notified the defendant, through the appropriate officers of the occurrence on 26 September 2000 and continued to advise the company of her medical progress. The respondent was aware of the circumstances of the occurrence or event and took steps to prevent its repetition.

10 The principles governing the exercise of discretion in any grant of extension of time are well settled (Knight v Smith [1975] Tas SR 83, Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, Hill v Iluka Corporation Ltd [2002] TASSC 113. They concern:

11 Here the respondent contended that the applicant had failed to show the existence of a "prima facie" case and a nexus between the event of September 2000 and her present injury. The term "prima facie" in the context of limitation proceedings was used by the High Court in Klein v Domus Pty Limited [1963] HCA 54; (1963) 109 CLR 467 but in the context that "the applicant must make out a case for permission to agitate something that prima facie time has put to rest." The term was used by the Full Court of this Court in Woolley v Jensen A20/1995 by Underwood J at par6 when he said, "No issue was taken with the proposition that the appellant had a prima facie case against the respondent".

12 It may be that the terms "arguable" and "prima facie" are synonymous. In this case any distinction is meaningless. The applicant must show the existence of a "cause of action" and it is not for the court to weigh up competing claims of control, duty or responsibility.

13 The defendant concedes the honesty of the applicant's case and has, quite understandably, not disputed her entitlement to statutory compensation. Whether the applicant is able to establish to the requisite degree duty and its breach is not to be here determined. She has established an arguable case or at least the existence of facts which, if accepted, are capable of grounding an action (see Burley v Ard Alignment and Mechanical Services Pty Ltd B67/1996, Butt v Comalco Aluminium (Bell Bay) Ltd B9/1996, Rush v Skilled Engineering Ltd [2002] TASSC 80). The applicant has shown the existence of injury and its continuation. She has shown the necessity of medical treatment and her limited capacity to perform all of her former physical tasks.

14 The length of delay is relatively minor and, absent specific prejudice would not attract the criticism and problems expressed by McHugh J in Brisbane South Regional Health Authority v Taylor (supra).

15 This aspect was made confusing by other questions of claims of unfair dismissal, failure to reappoint, other injuries, discord and the like. The issues were raised by the applicant in her original affidavit sworn on 2 February 2004, pars8 and 9 as follows:

"8 Whilst I was able to return to work, and whilst I continued to experience these symptoms and pain, I was able to cope with these. I did not take any action to make a claim against my employer for damages because I perceived that making a claim for any lump sum compensation or settlement might harm my prospects of retaining my employment.

9 I was made aware as a result of a consultation with a solicitor in Devonport in approximately March 2002 that there was a time limit which applied to making a claim. Until I first consulted my present solicitor on 23rd January 2004, I was unaware what damages were, or what was the distinction between damages and workers compensation benefits, although I understood from my reading of newspapers that damages involved lump sum compensation for an injury."

She was not cross-examined on these assertions and the Court ought be reluctant to make a finding adverse to her cause as a consequence (Browne v Dunn (1893) 6 R 67 (HL)). The Court accepts the evidence of Mr Crawford that the respondent would not countenance any reprisal in her employment arrangements with the company because of any claim for damages. Nevertheless the evidence, unchallenged, suggests that further work related accidents in June and December 2003 delayed consideration by the applicant of her position. Her assertion contained in her affidavit, unchallenged, permits a finding in her favour despite my reservation that fear of prejudice had not prevented her from challenging the respondent on this aspect, concerning her entitlements vis-a-vis the company. Insofar as is necessary my finding is that she delayed the commencement of her action because she believed her injury and its long-term effects to be relatively minor. She became conscious of its long-term implications when her condition was exacerbated by the further "work related accident" on 7 December 2003. Thereafter, allowing for her suffering a heart attack, unrelated to her claimed injury, on 19 December, she acted with promptness and due diligence.

16 The applicant has shown reasonable cause for the delay.

17 Whilst delay itself may constitute prejudice (Brisbane South Regional Health Authority v Taylor (supra), McHugh J at 550), here only one specific prejudice has been identified. The injury was suffered in September 2000. There have been two further, relatively minor work related accidents since those occurring on 12 June and 7 December 2003. The heart attack suffered on 19 December is said to add a further complication to any assessment of her injury. Even accepting that such might be the case it is a matter appropriate for trial rather than preliminary determination. In July 2003 the applicant completed a claim form relating to the claimed event of 12 June. The claim stated the injury to be "inner bruising" to the "left hip, left ankle and left knee". It was accompanied by the certificate of the treating medical practitioner. It should be relatively easy to discern differing consequences as a result of separate injuries. The respondent acknowledges that it, through its insurer, has had the opportunity to have the applicant examined by its adviser on two occasions. The effect of the heart attack are unrelated to the physical injury claimed.

19 The applicant has satisfied the requisite preconditions to a grant of extension of time. Leave is granted to permit her to commence proceedings for damages at common law up until and including 28 January 2004. The applicant ought pay the respondent's costs of these proceedings. I certify for counsel.