J SMIT & SONS CONTRACTING PTY LTD v KLAUSY PATRICK BUHRER

LOWER COURT District Court JURISDICTION : LOWER COURT DC 1422/01 FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40273/02 DC 1422/01

BEAZLEY JA GILES JA CRIPPS AJA

Thursday 13 March 2003 J SMIT & SONS CONTRACTING PTY LTD v KLAUSY PATRICK BUHRER Judgment

2 GILES JA: The opponent was employed by the claimant as a general hand. He suffered an injury to his back on 12 January 1995 when he fell while descending a ladder on the side of the claimant's truck. Pursuant to s 151D(2) of the Workers Compensation Act 1987 ("the Act"), he was not entitled to commence proceedings against the claimant more than three years after the date on which he was injured except with the leave of the court. On 22 November 2001 he applied in the District Court for leave to commence proceedings against the claimant. On 10 December 2001 Delaney DCJ granted leave. This is an application for leave to appeal from Delaney DCJ's decision, heard on full submissions so that if leave be granted the appeal can be determined without a further hearing.

Some principles 3 The Act does not state criteria for the grant or refusal of leave to commence proceedings out of time. A general discretion is given, the exercise of which is fully considered in Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207. 4 The question to be asked is what is fair and just, or what does the justice of the case require (Itek Graphix Pty Ltd v Elliott at [87] per Ipp AJA, Spigelman CJ concurring at [1]; see also per Sheller JA at [2]-[3]). It is not the more confined question posed in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 550, whether the delay has made the chances of a fair trial unlikely, and the question is to be answered with regard to the rationales for the limitation period, including those identified by McHugh J in in Brisbane South Regional Health Authority v Taylor at 552 (Itek Graphix Pty Ltd v Elliott at [87]). 5 The justice of the case is to be determined on the circumstances of the particular case (Itek Graphix Pty Ltd v Elliott at [72], [88]). Relevantly to the present case, the circumstances may include prejudice to the respondent by reason of the delay, including that the delay has made the chances of a fair trial unlikely; they may also include that the applicant has failed to act with diligence. Anything material to the justice of the case, however, is open for consideration (which is not to deny that one element may be critical). 6 The generality of the discretion requires care lest one element of the circumstances distorts its exercise. For example, that there is some prejudice to the respondent by reason of the delay does not mean that the court is bound to exercise its discretion against the applicant; conversely, that there is no prejudice to the respondent by reason of the delay does not mean that the court is bound to exercise its discretion in favour of the applicant (as Itek Graphix Pty Ltd v Elliott demonstrates). 7 In relation to other legislation providing for leave to commence proceedings out of time, it has been stated or assumed that the plaintiff must establish that the circumstances warrant the exercise of the discretion in his favour (for example Salido v Nominal Defendant (1993) 32 NSWLR 524 at 532; Holt v Wynter (2000) 49 NSWLR 128 at [84], [147]; Parsons v Doukas (2001) 52 NSWLR 162 at [2], [69]). In Parsons v Doukas at [69] it was said that the judges in the majority in Brisbane South Regional Health Authority v Taylor - " … were of the view that, in a case such as this, the relevant discretion is a discretion to grant, and not a discretion to refuse, and that an applicant must satisfy the Court that grounds exist for the exercise of the discretion in his or her favour, the ultimate onus of satisfying the Court that time should be extended remaining on the applicant throughout." 8 This approach to s 151D of the Act was implicitly accepted by Spigelman CJ and Ipp AJA in Itek Graphix Pty Ltd v Elliott (see at [53], [60], [80], [82]), and was expressly adopted by Sheller JA (at [3]). It was affirmed for s 151D in Uniting Church in Australia Property Trust (NSW) v Lea [2002] NSWCA 55 at [28]-[31]. The persuasive onus is on the plaintiff. 9 In Brisbane South Regional Health Authority v Taylor, after referring to this persuasive onus, Toohey and Gummow JJ said (at 547) - "There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission (Vict) in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd : 'It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice'." 10 It is rare for an evidentiary onus to be determinative. Usually there is evidence, and the court will decide on the evidence as it is and with regard to the persuasive onus. In the present case it will be necessary to say something more of the evidentiary onus.

The evidence in this case 11 At the time of the opponent's injury the truck was a tip truck converted to a water truck by mounting a tank within the tipping body. A ladder on the side of the truck provided access to the top of the water tank. The conversion had been carried out by the claimant at some time between 1984 and the occasion of the opponent's fall. The opponent alleged that the ladder was attached very close to the body of the truck and the rungs were round, and that he fell from the truck because these features meant that he could not get a proper foothold with his muddy boots. He alleged that the claimant had thereby failed to provide a safe system of work. 12 Following his fall the opponent claimed and was paid workers compensation benefits. He returned to work on light duties a few weeks after the occasion of his fall, and worked for the claimant "in pain" until 28 November 1997. He was then off work "for a number of years", and at some time in 1999 or 2000 began light work with another employer a few days a week. He said that he was in constant pain from his injury and received "treatment by way of painkilling medication and exercises", apparently referring to the whole period from when he was injured. He agreed in cross-examination that by 1999 he thought that he had a serious injury which probably would not get better. 13 The opponent said that in April 1999 he received a letter from the solicitors for the workers compensation insurer "offering to settle [his] workers compensation rights by way of a commutation". A solicitor's affidavit referred only to a letter dated 10 May 2000 following a telephone conversation on 2 May 2000. The letter of 10 May 2000 did not mention an earlier letter. Clearly enough in response to the letter of 10 May 2000, which invited him to do so, the opponent consulted solicitors. On 17 May 2000 the opponent's solicitors wrote to the insurer's solicitors saying that they had been "provided with a copy of your client's 'without prejudice' letter dated 21 April 1999". One would have thought that they would have been provided with the letter of 10 May 2000, and there is some uncertainty about the course of events. The judge stated that the opponent received a letter of 21 April 1999 and that there was nothing "which explains what happened between 21 April 1999 and May 2000". It is possible, however, that commutation was first raised in May 2000. 14 In the letter of 17 May 2000 the opponent's solicitors said that the opponent "is booked to consult a Dr M Ryan on 5 July 2000", that there was a possibility that he may require surgery to his back, and that "[i]n the circumstances we do not feel it is appropriate at this time to commute our client's workers compensation entitlements". They said that they would obtain medical advice and "contact you at that time". 15 In October 2000 the opponent's solicitors told the insurer's solicitors that the opponent "continues to seek medical advice in regard to the prognosis for his back condition and is still not in a position to consider your offer". They asked for copies of medical reports held by the insurer. The copies were provided in December 2000. 16 Desultory correspondence thereafter included a commutation offer from the insurer in December 2000 and a counter-offer from the opponent in April 2001, and then the provision of a draft statement of claim. The correspondence tailed off into a stalemate. Associated with the counter-offer, it seems, was the first suggestion of a claim to common law damages, that leading to the provision of the draft statement of claim. The opponent said that in May 2001 he instructed his solicitors "to seek counsel's advice in regard to my common law rights" and in due course received advice. 17 The opponent's medical advice included a report by his treating doctor, Dr Matthew Giblin, dated 22 January 2001. In his affidavit the opponent said that until he received the report "I believed that my back would heal", and that having seen the report "I now believe I have an ongoing and permanent disability for which I seek compensation". This must be read in the light of the evidence in cross-examination to which I have referred. 18 It is remarkable that in his evidence in chief the opponent did not say why a claim to common law damages had not been made until the first suggestion in April 2000. The cross-examiner did not touch upon that matter. 19 The judge said, and in the first sentence he must have been referring to counsel's submission since there was no evidence - "The reason that is advanced by the applicant for failing to commence proceedings in time is that he was unaware of his rights at Common Law until he sought advice from Goldrick Farrell Milan [sic: Mullan] about such rights. No other information appears in the affidavit to suggest the contrary and I did not note in the evidence which was given by the applicant any suggestion made by counsel for the respondent that he had in fact sought or received any advice from anyone else, either from any union representative or any other lawyer to whom he might otherwise have been referred or from any medical practitioner whom he may have seen. Accordingly, I accept that more likely than not it was in May 2000 that he first became aware of his right to have in the form in which he now seeks it some option of Workers' Compensation rights and Common Law. I also find that more likely than not, despite the fact that he had pain, disability and knew that he had a continuing disability, that it was not until February 2001 when the report of Dr Giblin was provided, that this was a matter which was outside the scope of Workers' Compensation rights and would lead him to consider making an application to sue at Common Law rather than taking lump sum compensation under sections 66 and 67 of the Workers' Compensation Act (1987)." 20 The first of these findings was not challenged in this Court. The second was indirectly challenged. 21 The positioning and configuration of the ladder at the time of the opponent's fall was critical to the opponent's case against the claimant. According to the opponent the ladder on the side of the truck was changed soon after his fall, to a ladder attached much further from the body of the truck and with square rungs, providing a much better foothold. Mr Stanley of the claimant did not recall that occurring. It was common ground that in late 2000 the truck was significantly modified by doing away with the tipping body and permanently mounting a water tank so as to make it a dedicated water truck. 22 Through the evidence of Mr Stanley, the claimant put a case of prejudice by reason of the delay. On that evidence -

(a) Mr Stanley had been familiar with the truck, but could not recall the distance of the ladder from the body of the truck or the nature of the rungs;

(b) Mr Stanley had looked at "the file that relates to that truck" and could not see anything telling him who had mounted the water tank within the tipping body;

(c) (as the answer to a general question) there were no documents showing the "dimensions of the steps" at the time of the opponent's fall in 1995; and

(d) there had been changes to the personnel employed by the claimant since the date of the opponent's fall "so that any investigation to ascertain the circumstances surrounding the Alleged Incident may be difficult". 23 However, the cross-examination added to this, and it is evident from Mr Stanley's evidence that -

(e) employees of the claimant other than he and the opponent had driven the truck and were familiar with it in the period prior to the opponent's fall;

(f) while he thought those people were "no longer there", he could not say without going into further files, which he had not done;

(g) he had not gone into the claimant's records to ascertain who was employed in the workshop over the period when the truck was modified to a water truck;

(h) he had had "nothing to do with" the workshop at that time; and

(j) Mr John Smit of the claimant's management might be able to name or use records to ascertain the names of persons who were employed in the claimant's workshop over the period when the truck was modified to a water truck.

The judge's reasons 24 The decision was prior to the judgment in Itek Graphix Pty Ltd v Elliott, which was delivered on 11 February 2002. The submissions to his Honour and his Honour's reasons focussed on the Brisbane South Regional Health Authority v Taylor question of whether the claimant could have a fair trial in the proceedings, and at one point his Honour encapsulated the effect of that case as "that an application for an extension of time under the limitation legislation should be refused if the effect of granting the extension would result in significant prejudice to the potential defendant". However, the claimant's submissions included reliance on asserted "lack of forensic diligence", and his Honour looked more widely: he said - "As Mr McNally reminded me, the question to be considered is whether in the circumstances of each individual case the applicant has demonstrated that it is fair and just that leave be granted and to examine the diligence or lack of diligence shown by the plaintiff of the plaintiff's legal representatives in ascertaining and asserting his or her rights. The extent of delay or extent of any relevant delay will ordinarily be a material factor. It is necessary also to consider the nature and extent of any forensic disadvantage to a defendant which relates from this delay. The purpose of the legislation, confirmed by Brisbane South , is the protection of a defendant against a stale claim and to promote forensic diligence." 25 The insurer had been paying workers compensation benefits, and the claimant did not rely on any prejudice in relation to medical material. As a practical matter, the two issues for his Honour were prejudice to the claimant by reason of the delay and the so-called lack of forensic diligence. 26 After his findings concerning the opponent's first knowledge of his common law rights, the judge said - "Accordingly, from February to May 2001, whilst there was some delay in instructing Mrs Carter to obtain counsel's advice and that therefore thereafter there was some delay in receiving that advice, that this delay was not significant or material to the issue of whether or not the respondent in the circumstances could have a fair trial of the proceedings." 27 This appears to have been a rejection of prejudice through delay insofar as there was delay from when the opponent became aware of his common law rights until he made his District Court application, measured by whether the claimant could have a fair trial in the proceedings. 28 After some other matters the judge observed that "the real issue on the question of prejudice in this case seems to be that the truck has been modified". His Honour continued - "Mr Stanley said he did not remember what the truck looked like or how it was configured precisely in 1995 and he could not determine who could assist on this point, if anyone. He suggested that most of those that could have no longer worked with the respondent. He also said that he could not assist with any documentary detail about what work was done and by whom. There is, however, no mention made by Mr Stanley of who originally constructed the truck, how long precisely the truck had been in the possession of the respondent other than that it had been there for some considerable time and what it really looked like in its initial and original state. I find that there is on the question of the issue of whether there are persons available who could assist in determining the configuration of the truck, that the evidence of Mr Stanley is not sufficient to produce a result that the respondent contends for, namely that the respondent could not have a fair trial of the proceedings. As I said the only suggestion is that there had been changes to personnel employed and that any investigation to ascertain the circumstances may be difficult. True it is that this was expanded upon to some degree during the evidence of Mr Stanley but still is sufficiently unspecific and lacking in detailed documentary support that I have concluded that it does not amount to the significant prejudice which would induce a court to reach the conclusion that the respondent could not have a fair trial of the proceedings on liability. What the outcome of the trial may be, one can not say and it is not necessary that I make any further findings other than that taking into account that all trials which result from an extension of time create prejudice for one or other of them parties in differing degrees that in this case the suggestion of unavailability of evidence does not prevent the applicant from indicating that it would be fair and just to grant the application." 29 The judge then said - "The other question is the question of delay. I have already referred to this in the finding that I have made as to when it was that the applicant was aware of his entitlements and the eventual degree of problem which would take this case into the realms of Common Law, other than his entitlements under section 66 and section 67. Mr McNally referred in detail to the evidence of the solicitor for the respondent, which set out the course of correspondence and medical reports. The fine line and balancing act which is to be undertaken by all seekers of compensation under the Workers' Compensation legislation since 1987 is starkly brought into relief in this application, where it is necessary for the discharge of the responsibility of the legal adviser to obtain the necessary medical information, to advise the applicant as to which course should be taken. Mr McNally said it was only with the prodding of the insurer about the commutation application which led to these matters really coming to the fore and leading to the advice being given to make this application. Be that as it may, nevertheless that is in fact what occurred and in the absence of a finding of fact of forensic diligence and significant prejudice, it is fair and just that the application be granted and I so grant the application." 30 In the end, therefore, the judge declined to find that the opponent had failed to act with diligence and, while recognising some prejudice to the claimant from the delay, considered that it was fair and just that the application be granted. The Itek Graphix Pty Ltd v Elliott question was answered.

The submissions in this Court 31 The claimant's submissions were wide-ranging. They addressed error in relation to the opponent acting with due diligence, error in relation to prejudice to the claimant from the delay, error in the exercise of discretion, and failure to give reasons.

Acting with due diligence 32 The claimant submitted that the opponent's affidavit evidence of belief until early 2001 that his back would get better could not be accepted in the light of his agreement in cross-examination that by 1999 he thought he had a serious injury which probably would not get better. It submitted that the delay in enforcing common law rights from May 2000 to November 2001 was not adequately explained. And it submitted that the judge "does not give any reasons for coming to [the conclusion that there was no lack of forensic diligence], nor does he deal with any explanation of delay". 33 This should not be accepted. The judge did "deal with" explanation for the delay. He found that the opponent was not aware of his common law rights until May 2000. He found that despite the 1999 belief as to his injury it was not until Dr Giblin's report that the opponent was brought to "consider making an application to sue at Common Law" rather than take a workers compensation commutation. This finding was open to his Honour and no sufficient reason to overturn it has been shown. The judge considered that the passage of time was explained by the need to have proper medical advice and, inferentially, by the ultimately fruitless negotiations. His Honour thought that, in the circumstances, there was not disentitling failure to act with due diligence. I do not think error has been shown in this, and his Honour's reasons are sufficiently apparent.

Prejudice 34 The claimant first submitted that the judge erred in using against it Mr Stanley's inability to state "who originally constructed the truck, how long precisely the truck had been in the possession of the respondent, other than that it had been there for some considerable time and what it really looked like in its initial and original state" (see para [27] above). Mr Stanley's inability, it said, was part of its prejudice. 35 I do not think his Honour did use this against the claimant. He was recording the evidence as it was, evidence of Mr Stanley's inability, as a preliminary to the following paragraph the thrust of which was that Mr Stanley's evidence had not excluded that the claimant could in other ways be informed as to the positioning and configuration of the ladder. 36 The claimant then submitted that the judge erred in criticising Mr Stanley's evidence as "unspecific and lacking in detail documentary support" (ibid). Again, it said that this was part of its prejudice. As appears from what I have just said, in my view that misunderstands his Honour's reasons. His Honour was not satisfied that other persons were not available to the claimant, on the evidence Mr Smit or employees whom Mr Smit could identify, in relation to the positioning and configuration of the ladder. He plainly accepted that there may be difficulty in the claimant's investigations. He did not think that any prejudice in that respect was sufficient to prevent the claimant having a fair trial. 37 In this connection the claimant submitted that the judge had "misapplied the onus of proof in this case". It said that his Honour required it "to produce further evidence to negative all possible knowledge of the configuration of the steps at the relevant time". This, it said, was to be inferred from the judge's observation that the evidence of Mr Stanley was "not sufficient to produce a result that the respondent contends for" (ibid). 38 I do not think that is so. From the conclusion of the relevant passage in his reasons, his Honour addressed whether the opponent had shown that it would be fair and just to grant the application. In the preceding observations his Honour pointed out the limits of Mr Stanley's evidence, in that consistently with his evidence the claimant could identify former workshop employees involved in the modification of the truck or former or current employees who had driven the truck, and through those employees or through Mr Smit could call evidence of the positioning and configuration of the ladder. As I have said, his Honour accepted that there may be difficulty in the claimant's investigations. He was satisfied that, nonetheless, it was fair and just to grant the application. The decision was made on the evidence as it was with proper regard to the persuasive onus. 39 The claimant submitted that it was incumbent on the opponent to prove positively that other employees or Mr Smit could give evidence of the positioning and configuration of the ladder, and that disentitling prejudice should have been found because it had not done so. 40 Placing an evidentiary onus on the respondent "to raise any consideration telling against the exercise of the discretion" (Brisbane South Regional Health Authority v Taylor, para [8] above]) does not mean that, having called evidence of some prejudice to which it will be subject in the conduct of the trial, the respondent can say that in the absence of evidence from the applicant negativing that prejudice it must be held that there can not be a fair trial. The applicant may negative the prejudice by showing that it is not a prejudice at all. If the applicant does not do that, or does it only partially by showing that the prejudice is not as significant as the respondent would have it, the question whether there can be a fair trail and the overall question of what is fair and just remain. 41 I do not think this is inconsistent with Uniting Church in Australia Property Trust (NSW) v Lea, on which the claimant relied. 42 In that case the applicant alleged that she injured her back when she fell while lifting a patient onto a bed. The eyewitnesses were a nurse's aid, Ms Ping Lin, and probably the patients in the hospital ward. The respondent led evidence that Ms Lin had returned to China and it had no forwarding address, and that some of the patients had died, and said that it had suffered prejudice by reason of the applicant's delay. 43 Ipp AJA, with whom Powell and Beazley JJA relevantly agreed, described Ms Lin's evidence as critical, said that the respondent had discharged its evidentiary onus, and after evaluating the circumstances concluded that the trial judge had erred in finding that it was fair and just to grant leave. In evaluating the circumstances Ipp AJA said (at [31]-[32]) that, the respondent having discharged its evidentiary onus, it was for the applicant to satisfy the court that the justice of the case required that leave be granted notwithstanding the absence of Ms Lin and the deaths of the patients. His Honour said in relation to the patients - "37 In my view, the inability of the appellant to lead the evidence of the other patients in the ward is also an important factor. Ms Norton attempted to brush this factor aside on the basis that the patients were geriatric and were therefore unlikely to be able to give cogent evidence on the issue. I accept that an inference can be drawn that the patients concerned were at least physically debilitated. But there was no evidence as to their mental capacity. The onus was on the respondent to prove that the appellant's inability to call these persons as witnesses would result in no prejudice to it, but it failed to do so." 44 The claimant relied on this passage for its submission to the effect that the opponent had an onus of proving that the claimant could in other ways be informed as to the positioning and configuration of the ladder. I do not think that is warranted. The applicant in Uniting Church in Australia Property Trust (NSW) v Lea had the persuasive onus. If the applicant did not negative the prejudice, the prejudice was a factor in the justice of the case. The nature and extent of the prejudice had to be assessed, and absent evidence of the patients' mental capacity they would not be taken to be mentally incapable. In the present case there was evidence of other ways the claimant could be informed as to the positioning and configuration of the ladder. The nature and extent of the prejudice was not as significant as the claimant would have it, and his Honour did not think it was sufficient to prevent the claimant having a fair trial. 45 The claimant finally submitted that the judge erred in failing to consider so-called presumptive prejudice, particularly the effect of the passage of time on recollections. The passage of time was not gross. It is tolerably clear that his Honour took account of the passage of time, see his observation that all trials which result from an extension of time create prejudice for one or other of the parties in differing degrees.

Discretion 46 The claimant submitted that the judge erred in that he "seems simply to have decided that in the absence of significant prejudice and lack of diligence, then the limitation period must be extended". It submitted that there was a failure to give reasons in that the judge "gave no positive reasons as to why it was fair and just that the discretion be exercised in the [opponent's] favour". 47 This is rather unfair to his Honour. He noted that the question to be considered was whether the opponent had demonstrated that it was fair and just that leave be granted. The issues before him were prejudice to the respondent by reason of the delay and the opponent's diligence. He dealt with those issues and found in terms that it was fair and just that the application be granted. The reasons were plain enough: in summary, that the opponent had not known of his common law rights, that he had not acted without diligence after he came to known of them, and that, notwithstanding some prejudice to the claimant from the delay, on his evaluation of the circumstances the justice of the case called for a grant of leave. 48 Other judges may or may not have made the same evaluation. The appellate question is whether error has been shown within the principles for which House v The King (1936) 55 CLR 499 stands. The judge's reasons may not be ideal in expression and completeness, but they are not to be read over-critically and it is necessary to discern the fact-finding and reasoning they display. I do not think appealable error has been shown. 49 Notwithstanding the length of these reasons, I consider that the application for leave to appeal lacked substance. I would refuse leave to appeal and order the claimant to pay the opponent's costs. 50 CRIPPS AJA: On 10 December 2001 Delaney DCJ granted leave to the opponent to commence proceedings against the claimant in respect of a work place accident which happened on or about 12 January 1995. It seeks leave to appeal and, if granted that the leave granted by the learned trial judge pursuant to s 151D of the Workers Compensation Act 1987 be set aside. 51 In the draft notice of appeal it is stated "leave to appeal was granted in 2002". Enquiries from the Registrar reveal that leave to appeal has not been granted. The claimant argued its case upon the basis that it was not entitled to an order setting aside the learned trial judge's order unless leave to appeal were granted. 52 It is not disputed that the plaintiff was injured on 12 January 1995 when he fell from a water tank which was attached to a tipper truck. He has alleged that his workplace was unsafe. He asserts that he fell because the rungs on the ladder were round and that the ladder was too close to the water container for him to get a proper foothold. He has said that he was wearing muddy boots and that if the rungs had been square and/or further out from the water tank he would not have fallen. 53 The plaintiff received workers compensation by reason of his injury. He returned to work and in November 1997 he ceased working for the claimant. 54 In April 1999 the claimant's insurer's solicitors wrote to the opponent offering to settle his workers compensation entitlements by way of "computation". The opponent did not, apparently, respond to the letter. In about May 2000 and after receiving another letter from the claimant's insurer he consulted his solicitors and was given legal advice concerning workers compensation and common law entitlements. At the time he received that advice a common law action against the claimant was barred by s 151(D) of the Act. 55 The opponent has said that it wasn't until about 2001 when he saw a doctor who told him that he had a permanently serious disability as a result of what had happened in January 1995 that he turned his mind to making an application to commence proceedings out of time against the claimant and gave instructions to do so. In cross-examination the opponent said he believed in 1999 i.e. when he received the first letter from the insurance company that he had a serious problem. However it was open to the trial judge to conclude that until receiving advice in May 2000 he was ignorant of his entitlement to maintain proceedings at common law. The proceedings for leave commenced in August 2001. 56 I infer that the learned trial judge concluded that his decision to give his lawyers instructions to extend the period of time was the consequence of the doctor confirming his belief that he had a serious disability. 57 The claimant did not allege before the learned trial judge or this Court that it suffered any prejudice relating to the plaintiff's medical condition. 58 Its case before the learned trial judge was that the opponent had not adequately explained his lack of forensic diligence and further maintained that it had not established that the claimant would not be prejudiced if a trial were held. 59 Both sides called evidence. On behalf of the claimant Mr Stanley, the opponent's supervisor, gave evidence that the water truck had been converted from a tipper truck to a water carrier some time between 1984 and 1988. He said he had no recollection of the configuration of the ladder in January 1995 and in 2000 the whole configuration was changed. This would have occurred some time after the plaintiff had received legal advice concerning his common law rights. Mr Stanley said he searched files to see if there were any records concerning how the ladder was configured but could not find any. I should also mention that the plaintiff gave evidence to the effect that the ladder was altered shortly after his accident. Mr Stanley seemed not to agree that that was so. The learned trial judge made no finding concerning this matter other than to determine that it was a matter for the trial judge. 60 Mr Stanley was cross-examined concerning whether he was able to identify other workers who would have been working with the opponent in January 1995. 61 The case put against the claimant was that there were two lines of enquiry it could have explored relevant to the question whether it would be prejudiced if a trial on liability were held. One was the records of the company which might throw some light on the configuration of the ladder (and which, as I have said, was explored and no record was found). The other was that it could have identified other employees and that if it wished to maintain the sort of prejudice it now claims it would suffer if a trial were held it had not, in effect, discharged what was described as the "evidentiary " onus with respect to prejudice. 62 On my understanding of the material before the trial judge nobody was asked whether there were other people actually working with the opponent at the time of the accident although the learned trial judge was entitled to conclude that the business was not large and that other persons would have been working for it during and after January 1995. 63 In the course of giving reasons the learned trial judge said that: "I find that there is on the question of the issue of whether there are persons available who could assist in determining the configuration of the truck, that the evidence of Mr Stanley is not sufficient to produce a result that the respondent contends for, namely that the respondent could not have a fair trial of the proceedings.

As I said the only suggestion is that there had been changes to personnel employed and that any investigation to ascertain the circumstances may be difficult. True it is that this was expanded upon to some degree during the evidence of Mr Stanley but still is sufficiently unspecific and lacking in detail documentary support that I have concluded that it does not amount to the significant prejudice which would induce a court to reach the conclusion that the respondent could not have a fair trial of the proceedings on liability". 64 Contrary to the submission advanced by the opponent I do not regard the above excerpt as demonstrating that the learned trial judge had, in effect, reversed the onus of proof. It is clear from other parts of the judgment that the learned trial judge understood that the onus was on the plaintiff to persuade the Court that leave to extend time should be granted and that it should not be granted unless it was fair and reasonable to do so. Nor am I persuaded that the learned trial judge overlooked the presumptive prejudice by reasons of the proceedings being commenced six and a half years after the event. 65 The question for determination is not whether this Court would grant an extension of time. Some prejudice was established but that of itself did not dictate that the trial judge was compelled to conclude that the claimant could not have a fair trial as those words must be relevantly understood. 66 In my opinion it has not been established that the learned trial judge acted upon a wrong principle or allowed extraneous or irrelevant matters to guide or affect the decision and for reasons set out above I do not think the conclusion was unreasonable or plainly unjust. (See House v the King (1936) 55 CLR at 99.) 67 In my opinion leave to appeal should be refused and the claimant should pay the costs of the opponent.

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