Millard v State of Victoria [2006] VSCA 29

3 I agree with Mandie, A.J.A., for the reasons which his Honour gives, that this appeal should be allowed, and time extended to 21 November 2003.

4 This is an appeal by notice of appeal dated 3 February 2005 from a judgment of a County Court Judge given on 9 November 2004 dismissing an application pursuant to s.23A of the Limitation of Actions Act 1958 (Vic) for an extension of time within which to commence proceedings for damages for personal injury sustained in a bushfire incident in December 1994. It will be convenient to refer to the appellant, Robert John Millard, as "the plaintiff" and to refer to the respondent, the State of Victoria, as "the defendant". The plaintiff also appeals, by leave, from that part of

the County Court judgment that dismissed his principal proceeding against the defendant.

5 The material before the Judge on the hearing of the application disclosed the following facts and matters.

6 The plaintiff was born on 31 May 1957 in Bairnsdale. He was educated until he was about 14 years of age and left school halfway through Form 2 of High School. He was a poor student and was not able to read or write. He had always been engaged in manual labour in country Victoria and had been employed as a mill worker, timber worker and bush worker.

7 In about 1991 the plaintiff commenced employment with a logging contractor, G.H. & K.G. Edlington Pty Ltd ("Edlington" or "the employer"). He was involved in logging operations and as part of his duties he drove excavators and dozers, graded mill logs, used chainsaws and loaded timber.

8 On or about 15 December 1994 the plaintiff was operating an excavator at Bonang which is in Victoria, near the border with New South Wales. There was a bushfire and a number of workers in the area were endeavouring to control the fire. It was on this occasion that an incident occurred in which the plaintiff suffered injury. According to an affidavit sworn by the plaintiff in March 2000, another worker was felling a tree that was burning and the tree split and part of the tree caught in the forks of the excavator being driven by the plaintiff and caused it to overturn. The plaintiff was thrown from the vehicle and suffered injuries as a result. Further details were provided by the plaintiff in his affidavit sworn 21 June 2004 in support of the subject application. So far as relevant the plaintiff said that he, along with other co-workers, and equipment belonging to the employer including an excavator, were made available to the Department of Conservation and Natural Resources ("DCNR") and the plaintiff went on to depose as follows:

"The excavator and myself was transported to the location of the fire by the Department. At the scene of the fire, I was given instructions and directions as to the use of the excavator in cutting fire breaks, moving and separating burning logs and other tasks using the excavator.

I was instructed to attempt to push over a very tall tree which was burning and, in the high winds, billowing burning leaves and twigs into other areas causing spot fires. [Emphasis added]. I used the grabs of the excavator to apply pressure to the tree attempting to push the tree over. When doing so, the [trunk] of the tree snapped, falling sideways pulling the excavator over and onto its side. As a consequence I was injured sustaining injury to my left knee, neck and back."

9 I interpolate that it is apparent that, as at March 2000, the plaintiff's solicitors had in mind a proceeding against the plaintiff's employer and did not have in mind any proceeding against the defendant.

10 The injuries suffered by the plaintiff were injuries to his left knee, neck and back. The injuries to the neck and back improved over time but a problem in his left knee persisted. An arthroscopy was performed on his left knee on 21 February 1995 and a further arthroscopy was performed on his left knee on 30 May 1995 but pain and swelling continued. He was rendered unable to return to the kinds of heavy labour he had previously performed. He attended night classes at the Orbost Neighbourhood House where he began learning to read and write and by March 2000 he was able to read and write a little.

11 As at March 2000 the plaintiff had not returned to work and was still receiving Workcover weekly payments of compensation. The affidavit material also indicated a serious impact from his injuries upon his social, domestic and recreational activities.

12 As appeared from an affidavit (sworn 21 June 2004) of John Hugh McCristal, a principal in the firm of Messrs Maurice Blackburn and Cashman, solicitors, at their Traralgon office, the plaintiff sought advice from that firm on 16 January 1996. The plaintiff retained those solicitors to advise him in respect of his further entitlements to compensation under the Accident Compensation Act 1985 (Vic) and in respect of his prospects of recovering common law damages. Mr McCristal's affidavit did not state whom the plaintiff saw at the initial interview or who subsequently handled the matter on behalf of the plaintiff prior to August 2000.

13 Mr McCristal deposed that medical reports were obtained from the plaintiff's treating doctors and examinations, assessments and expert opinions were obtained from other medical practitioners in January, June and December 1999. The affidavit did not explain what happened (if anything) between January 1996 and January 1999.

14 An application for a Certificate of Serious Injury in the prescribed form was lodged by the plaintiff's solicitors with the agent of the Victorian Workcover Authority on 13 March 2000. Attached to the application was an affidavit of the plaintiff sworn 8 March 2000 that included the following allegations:

"I believe my employer was responsible for my injuries because the excavator I was driving overturned, the system of work was not safe, I was not provided with a safe place of work, I was working in a situation of danger. The worker who was felling the burning tree failed to insert a scarf in the tree."

15 By letter dated 11 July 2000 the plaintiff was notified of a determination by the authorised insurer on behalf of the employer that the plaintiff did not have a serious injury and that it declined to issue a Certificate of Serious Injury for the purpose of commencing a proceeding for recovery of damages. The material provided to the plaintiff's solicitors at that time revealed the identity of a number of witnesses to the incident. Included in the material was a copy of an affidavit of Graham Henry Edlington, a director of the company employing the plaintiff at the time of the accident, and stating inter alia:

"On 15 December 1994, we were working in the Bonang area of the Bendoc forest. At about midday I was approached by an employee of Department of Conservation and Natural Resources ("DCNR") who stated that they required my excavator to assist at a bushfire that was out of control, which was about 5-6 kilometres away. They stated that they wanted the excavator to pull apart heaps of logs that were burning and which they were unable to separate safely with the bulldozers.

I am obligated under the Sawmills Agreement to make my machinery and personnel available for firefighting when requested by the DCNR.

The DCNR provided a float to transport the excavator to the location of the fire and Robert Millard went with them. From that point on, Robert was under the control and direction of the DCNR personnel.

At about 5.00pm, or shortly thereafter, members of DCNR came to my coop and informed me that the excavator had rolled onto its side and that the driver had some minor injuries, but was okay. I then went to the location of the fire in our own vehicle and saw the excavator on its side. There was a large tree in front of the excavator that had a cut in the back of it. I was informed that this was being pushed over by the excavator when the tree caught in the jaws of the log grab and, as it was falling, it took the excavator with it. I had a short conversation with Robert who told me that when the excavator first started to fall, he had been thrown from the cabin and, as it continued to roll, he climbed back into the cabin as he felt that it was the only safe spot that he could get to.

...

At the scene of the accident on 15 December 1994, I was talking to "Stick" (Shane Turner) who was employed by the Victoria Police and was a volunteer on the fire tanker. Stick told me that on the day of the accident, Robert had the beak of the excavator open and the forks of the grab attachment were on either side of the trunk of the tree, at about the maximum reach height of the boom extended.

[There follows material about the correct procedure for pushing trees with an excavator]

Stick also told me that Rob was apparently pushing with such force that the front of the excavator tracks were right off the ground ...

I was also told that on the day of the accident, David Ingram, an employee of DCNR, was attempting to fell the tree with a back cut only and that no scarf had been cut into the front of the tree.

...

The excavator is a 1982 Komatsu Model PC300-2 and it weighs about 35 tonne. This vehicle is not registered to be driven on the road." (Emphasis added)

16 After receipt of the employer's determination, Mr McCristal obtained instructions from the plaintiff to commence a proceeding in the County Court at Morwell seeking leave to bring a proceeding against Edlington claiming damages for personal injuries sustained in the course of his employment, on the basis that the injuries were a serious injury pursuant to s.135A(4)(b) of the Accident Compensation Act 1985. That application for leave was commenced by originating motion on 4 August 2000.

17 It is common ground that the relevant limitation period under the Limitation of Actions Act 1958 was six years and, thus, it came about that the limitation period had expired by 15 December 2000.

18 The plaintiff's application for leave came on for hearing before the County Court at Sale on 20 June 2001. The employer then asserted, contrary to its earlier statement, that the vehicle being driven by the plaintiff was a registered vehicle and that the plaintiff had to comply with s.93 of the Transport Accident Act 1986 (Vic) before being permitted to commence a proceeding for the recovery of damages in respect of his injuries. The plaintiff at that time was unable to recall whether or not his vehicle had been a registered vehicle or had borne registration plates. The hearing was therefore adjourned to permit inquiries to be made as to the nature of the vehicle being driven by the plaintiff at the time of the incident on 15 December 1994 and in particular whether the vehicle was a registered vehicle pursuant to the Road Safety Act 1986 (Vic), and if so, whether the circumstances of the accident came within the Transport Accident Act 1986.

19 Following the adjourned hearing, the plaintiff's solicitors prepared a number of letters dated 28 June 2001.

20 The first letter was directed to the relevant Department of the defendant (DCNR) and enclosed a copy of the original application for a Certificate of Serious Injury, a copy of the letter of determination on behalf of Edlington and a copy of the originating motion of 4 August 2000. The said letter to DCNR, to which no response was received, said that the material was served "pursuant to s.135A(5) of the Accident Compensation Act," thus indicating for the first time that the solicitors regarded the defendant as a "person against whom the applicant claims to have a cause of action".[1] The letter further advised that an amended originating motion naming the Transport Accident Commission and DCNR would be filed in due course.

21 The second letter was directed to the Transport Accident Commission ("TAC") and requested the TAC to make a determination of the degree of impairment pursuant to s.47 of the Transport Accident Act 1986 and to issue a Certificate of Serious Injury pursuant to s.93(4)(c) of the Transport Accident Act 1986. Correspondence ensued with the TAC in July and August 2001 as to whether the plaintiff's injuries were caused by a "transport accident" and related matters.

22 The third letter was directed to the solicitors for Edlington requesting the registration number of the excavator which was driven by the plaintiff at the time of the accident. Subsequently it was necessary for the plaintiff's solicitors to obtain an order from the County Court requiring Edlington to provide details of the excavator including its registration number and an order was made to that effect.

23 On 24 January 2002 the solicitors for Edlington advised that their client had disposed of the excavator in June 1998 and no longer had any discoverable documents concerning its registration but that the registration number was EUP 922. There is an inexplicable further delay from January 2002 to March 2003 which, in the absence of explanation, can only be attributed to the neglect of the plaintiff's solicitors. At some point Mr McCristal made further inquiries with VicRoads which, in March 2003, established that the correct registration number was EUP 992. The solicitors for the TAC sought further information concerning the circumstances of the incident and, by letter dated 26 March 2003, the plaintiff's solicitors advised them that:

"Our client instructs that prior to his accident, the excavator was stationary and he was holding the tree in question with one fork of the excavator.

The tree started to crack and our client used the [forks] of the excavator to try to hold the tree.

We are further instructed that the tree then split and the tree turned around and got caught in the forks of the excavator.

Mr Millard attempted to drive both forwards and backwards but could not move at all and the excavator remained stationary.

The tree then fell and took the excavator with it.

We confirm that we are instructed that the accident occurred in a State Forest."

24 By letter dated 13 May 2003 the TAC advised the plaintiff's solicitors that the TAC did not consider that the plaintiff was involved in a transport accident. The solicitors then apparently arranged for the originating motion to be set down for hearing in the County Court at Sale at the sittings commencing on 29 October 2003. However by letter dated 23 October 2003 the TAC advised that it had reconsidered its position and determined that the circumstances of the accident did constitute a transport accident. The TAC further advised that it had determined that the plaintiff's degree of impairment was less than 30% but that it was satisfied that his injury fell within the definition of "serious injury" under s.93(17) of the Transport Accident Act 1986 and a certificate was enclosed.

25 By writ dated 20 November 2003 in the County Court at Morwell the plaintiff commenced a proceeding against the State of Victoria as defendant claiming damages for injuries sustained in the accident. The statement of claim alleged that the defendant, its servants and agents owed the plaintiff a duty, in the circumstances, to take reasonable care for his safety and not to expose him to an unnecessary risk of injury. The relevant circumstances alleged to give rise to the duty included that the plaintiff was operating the excavator and performing tasks fighting the bushfire under the control, direction and supervision of the defendant (by the servants, officers and employees of DCNR). The particulars of breach of duty alleged included a failure to provide safe system of work, a failure to properly supervise the plaintiff when operating the excavator, an alleged request for the plaintiff to attempt to fell a burning tree using the excavator, a failure to properly cut and scarf the burning tree, and so forth.

26 The defendant applied that the proceeding be dismissed on the basis that it was statute-barred and the plaintiff made an application by summons dated 22 June 2004 for an order pursuant to s.23A of the Limitation of Actions Act 1958 that the limitation period be extended to 21 November 2004 (subsequently amended to 21 November 2003).

27 An affidavit was filed on behalf of the defendant in opposition to the plaintiff's application sworn by the defendant's solicitor, Ross Fraser Hodgens of Russell Kennedy, solicitors, stating that the defendant had suffered prejudice by reason of the passage of ten years from the date of the accident. Having regard to the course adopted by the defendant on this appeal it is unnecessary to recount the contents of Mr Hodgens' affidavit. In a subsequent affidavit Mr Hodgens produced a copy of an investigator's report dated 21 August 1995 from a firm, M W Butler & Associates, addressed to DCNR's solicitors. The report was concerned with the circumstances of a claim by Edlington relating to the loss of the excavator and contained details of the incident and summaries of interviews of various witnesses including the plaintiff.

28 The plaintiff's application was heard by the County Court Judge on 30 and 31 August 2004 and her judgment was handed down on 9 November 2004. The plaintiff's application was dismissed and the plaintiff's principal proceeding was also dismissed and, as I have said, both of these orders are the subject of the present appeal.

29 In her judgment, the Judge said that the primary reason given by the plaintiff for failing to commence a common law action for damages before November 2003 was that he was prevented from doing so until the grant of a Certificate of Serious Injury in October 2003. The Judge noted that the plaintiff did not appear to rely "on circumstances commonly raised such as delay and default of the part of his solicitors, lack of knowledge of his rights or of the existence of a time bar or, beyond the legal steps taken on his behalf, on any specific conduct on his part to ensure the timely progress of his claim against the defendant". The Judge said that the main issue raised by the defendant was general and specific prejudice[2] but that it had also relied upon the length of and reasons for the delay on the part of the plaintiff[3] and the extent to which the plaintiff acted promptly and reasonably once he knew of the possibility of a claim against the defendant[4].

30 In dismissing the plaintiff's application the Judge took into account certain matters which, on appeal, were submitted by counsel for the plaintiff to constitute material errors.

31 First, the Judge said that the plaintiff did have an arguable cause of action in the circumstances described by the pleadings and the affidavit material and an arguable basis for asserting that at the relevant time a duty of care was owed by the defendant to the plaintiff. In that regard the Judge noted that the defendant had admitted the plaintiff's allegation that at the time of the incident he was operating the excavator and performing tasks fighting the bushfire in the Ben[d]oc State Forest under the control, direction and supervision of the defendant (being the servants, officers and employees of DCNR). The Judge accepted that, unless the case otherwise appeared to be hopeless, evidence of a cause of action was not a necessary prerequisite to the granting of an application to extend time. Notwithstanding the foregoing, the Judge was critical of other aspects of the statement of claim and concluded with some emphasis that "the plaintiff has still not articulated his cause of action". Her Honour said that she took that matter into account and that for the plaintiff to articulate his cause of action would require an extension of time beyond that presently sought by the plaintiff. I should say at once that, in my opinion, whatever the validity of the Judge's criticism of some aspects of the statement of claim, it was incorrect and a material error to take into account, as the Judge did, that the plaintiff had failed to articulate his cause of action. On the contrary, the plaintiff had, in his statement of claim, clearly articulated a cause of action in negligence against the defendant. Even if some amendment were required to the statement of claim, that did not lead to the necessity for a longer extension of the limitation period than that sought by the plaintiff.

32 Second, the Judge said and took into account that there was material before the Court showing that the plaintiff knew from 1995 of his possible right to recover damages from DCNR and not just from his employer. In support of that finding, the Judge referred to the report from M W Butler & Associates which referred to a comment by the plaintiff suggesting such knowledge and the Judge also inferred that his solicitors had advised the plaintiff of such a right or possible right. In my opinion these findings also constituted material error by the Judge. The report from M W Butler & Associates was inadmissible for the purpose of such a finding (and in any event the relevant passage in the report provided an unsatisfactory foundation for such a finding). Further, there was in my view no basis for inferring that the plaintiff was advised by his solicitors, prior to June 2001, that he had a possible right to claim damages from the defendant (or DCNR). Indeed it is clear that the plaintiff's solicitors had not contemplated such a claim before June 2001.

33 Third, the Judge appears also to have taken into account that "from June 2001 no steps were taken by the plaintiff to extend time for bringing a common law action" and that "the plaintiff was not prevented by any statutory requirement from bringing an application to extend the limitation period" pending the outcome of his application for a Certificate of Serious Injury or his ascertainment of whether the excavator was a registered vehicle. This too was, in my opinion, a material error because the plaintiff had no cause of action at all until he satisfied the "gateways" requirements of either s.135A of the Accident Compensation Act 1985 or s.93 of the Transport Accident Act 1986.[5] Therefore an application to extend the limitation period would have been futile unless and until the appropriate Act was identified and its "gateways" requirements satisfied in one way or another.

34 Before this Court, counsel for the defendant did not seek to maintain that the Judge had not materially erred in these three respects.

35 Counsel for the plaintiff made submissions as to other alleged errors in the Judge's reasons, but it is unnecessary to consider those submissions. Having regard to the material errors above referred to, I am of the view that the Judge did not exercise the Court's discretion according to law and it is open to this Court to re-open the exercise of discretion and to consider the matter for itself. Counsel for the defendant did not contend to the contrary.

36 Section 23A of the Limitation of Actions Act 1958 provides, so far as material to the issues raised on this appeal, as follows:

"(1) This section applies to any action for damages for negligence ... where the damages claimed consist of or include damages in respect of personal injuries to any person.

(2) Where an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) ... may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for such period as it determines.

(3) In exercising the powers conferred on it by sub-section (2) a court shall have regard to all the circumstances of the case including (without derogating from the generality of the foregoing) the following--

(a) the length of and reasons for the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;

(e) the extent to which the plaintiff acted promptly and reasonably once he knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;

(f) the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received."

37 I deal first with the question of delay on the part of the plaintiff himself. The accident occurred in December 1994 and the plaintiff first consulted solicitors in January 1996. That was not an unreasonable delay having regard to his injuries and the surgery which was performed on his left knee in February and May 1995. There is no evidence that the plaintiff's solicitors did anything from January 1996 until January 1999 when they commenced to obtain medical reports. Nor is there evidence that the plaintiff did anything about his solicitors' inaction during this period and it may reasonably be inferred that he did nothing. However, it was in my opinion not unreasonable for the plaintiff to leave his legal affairs in this respect to his solicitors, and, even if he was neglectful, it was at least understandable and excusable given his illiteracy and lack of education. At all relevant times after January 1999 it would have been apparent to the plaintiff that his solicitors were advancing the matter (if slowly) and it continued to be reasonable of him to leave the matter entirely to his solicitors, especially given the complexity and technicality of the matters with which they were attempting to deal.

38 In relation to delay, what was said by Starke J in Anisiena v H Crane Haulage Pty Ltd[6] is somewhat apposite:

"It is also conceded that the only step the claimant took was to instruct his solicitors to prosecute his claim. How they did this and against what parties the action was to be brought, were matters that he left to them. In my judgment it was both reasonable and desirable to do so. I do not think it would have been at all reasonable for him to have interfered with the conduct of his action. I would not do so myself, and I am of the opinion that it was entirely reasonable for a layman without legal qualifications to do as he did."

39 Counsel for the plaintiff contended that the plaintiff should not in the circumstances be held responsible for those aspects of his solicitors' inaction and conduct which appeared to constitute negligence on the part of his solicitors. Counsel for the defendant objected to reliance by the plaintiff on the negligence of his solicitors given the way in which the application was conducted below. Counsel for the defendant pointed to the passage in Mr McCristal's affidavit sworn 21 June 2004 stating that it was "contended" that at all times the plaintiff through his legal representatives had acted promptly and reasonably. Counsel for the defendant said that had the plaintiff relied below upon the solicitors' negligence, the defendant may have sought to cross-examine the plaintiff. It would of course have been open in any event to the defendant to have sought to cross-examine the plaintiff about his state of knowledge at relevant times, but the defendant had elected not to do so. As regards the aspect of the alleged negligence of the solicitors, it is unclear to me what purpose would usefully have been served by any cross-examination of the plaintiff on that topic because the defendant could hardly have improved on the evidence as it stood, namely, that the plaintiff did nothing to urge his solicitors to take speedier action. Nevertheless, in my opinion, in all the circumstances, the plaintiff, as distinct from his solicitors, acted reasonably at all relevant times and, to the extent that it was within his power to do so, acted promptly.

40 I agree with counsel for the plaintiff's submission that the plaintiff should not in the circumstances be held responsible for the neglect and defaults of his solicitors. I do not think that the failure of the plaintiff to expressly make that submission below has prejudiced the defendant in its opposition to the application. Indeed, the delays and defaults of the plaintiff's solicitors were glaringly obvious from the material before the Judge, as the Judge recognised when she stated that she had "formed the view that the plaintiff probably does have a prima facie cause of action against his legal advisers".

41 I turn to the question of the extent to which, having regard to the delay, there was or was likely to be prejudice to the defendant. In my opinion in the circumstances of this case, while some prejudice is to be presumed as a result of the admittedly substantial delay, there is not likely to be significant or material prejudice to the defendant, and a fair trial can be had notwithstanding the effluxion of time. It is unnecessary to expand upon this conclusion as, before this Court, counsel for the defendant, correctly it seems to me, did not seek to rely upon material prejudice to the defendant as a basis of opposition to the plaintiff's application.

42 The ultimate question is whether it is "just and reasonable" to extend the limitation period having regard to "all the circumstances of the case" including, but not limited to, the matters set out in s.23A(3). The Court must synthesise a number of competing considerations in arriving at a conclusion that takes account of them all, bearing in mind that the plaintiff bears the onus of persuading the Court that it is just and reasonable to extend the limitation period.[7]

43 In the present case the plaintiff was injured while fighting a bushfire at the admitted request and under the admitted supervision of the defendant. The plaintiff, who was illiterate and poorly educated, retained solicitors to ascertain and enforce his legal rights arising in relation to those injuries. The solicitors, albeit in a context of some factual and legal complexity, failed to act with sufficient skill and expedition with the result that the limitation period had expired long before they were able on behalf of the plaintiff to satisfy the preconditions for commencing a proceeding for common law damages. The neglect of the solicitors should not be visited on the plaintiff nor, contrary to the defendant's submission, should the plaintiff's possible rights against his solicitors, in the circumstances of this case, lead to a refusal of an extension of the limitation period. In my opinion it is just and reasonable to grant the extension of the limitation period sought by the plaintiff.

44 I would propose that the appeal be allowed, that the dismissal of the principal proceeding be set aside and that the period within which an action may be brought be extended to 21 November 2003.

[1] See s.135A(5) of the Accident Compensation Act 1985 (Vic).

[2] See s.23A(3)(b) of the Limitation of Actions Act 1958.

[3] See s.23A(3)(a) of the Limitation of Actions Act 1958.

[4] See s.23A(3)(e) of the Limitation of Actions Act 1958.

[5] See Wilson v Nattrass (Supreme Court of Victoria, unreported, 16 May 1995) per Ashley J at pp.20-24 and per Hedigan J at pp.4-5 and Swannell v Farmer [1998] VSCA 104 per Batt and Buchanan, JJA at [19].

[6] [1974] VicRp 81; [1974] VR 670, 674.

[7] See Tsiadas v Patterson [2001] VSCA 138; (2001) 4 VR 114 and cases therein cited.