(2) THE EXTENSION OF TIME
49Ms Ortlipp rightly submits that detailed medical records exist in the hands of the insurer in respect of the injury and its treatment, but there are other issues that arise in the application for the extension of time.
50In relation to a decision to grant leave there is authority for the importance of an adequate explanation for the delay, (see Gleeson CJ in Salido v Nominal Defendant (1993) 32 NSWLR 524 at 530; Holt v Wynter (2000) 49 NSWLR 128 in which a five member bench of the Court of Appeal applied the test propounded by Toohey and Gummow JJ in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 550:
"The real question is whether the delay has made the chances of a fair trial unlikely. If it has not there is no reason why the discretion should not be exercised in favour of the respondent."
51The latest quoted passage dealt with a different limitation provision. It was adopted by the Court of Appeal in Holt v Wynter to have application to s 151D(2). The principal judgment in Holt v Wynter was delivered by Sheller JA and in Parsons v Doukas (2001) 52 NSWLR 162, Sheller JA reiterated that approach.
52However, in Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104 the Court of Appeal (per Ipp AJA, with whom Spigelman CJ and Sheller JA agreed) determined that those remarks are not intended to be applicable to a case involving a lack of diligence on the part of an applicant for leave (at [55]) nor it seems "where the applicant for leave deliberately decided to allow the limitation period to expire"(at [62]).
53In Itek Graphix the reasonableness of the explanation for the delay was held at [82] to be a relevant consideration to the question whether there should be a grant of leave, although it was recognised at [88] that often a failure satisfactorily to explain the delay will not be decisive. Ordinarily, the issue of prejudice will be of paramount importance. Further at [91], "A deliberate decision to allow a statutory limitation period to expire will be a powerful factor against the grant of leave" and at [98]:
"In my opinion, to grant leave to sue long after the expiry of a limitation period, when the applicant has made a deliberate decision to allow the statutory period to expire, in the absence of special circumstances explaining satisfactorily the conduct of the applicant, would set at naught the purpose of the legislation."
54In ASB-Tech Services Pty Ltd v Doeland [2003] NSWCA 167, Hodgson JA at [30]-[33] emphasised the need for the applicant to provide an explanation for the delay including, in an appropriate case, evidence whether by documents or otherwise from the plaintiff's solicitor. At [34] Hodgson JA stated:
"the correct approach is to regard the provision of an explanation as a necessary step in the application, and the nature of the explanation as being a matter which has to be taken into account in the ultimate determination of whether it is fair and just to grant the extension. The weaker the explanation, the greater the need to show that there would be little prejudice to a respondent."
55In Saad v J Robins & Sons Pty Ltd [2003] NSWCA 87 Santow JA, with whom Mason P and Hodgson JA agreed, indicated the potential relevance of an injury that worsened over time (see Klimovska v George Weston Foods Limited [2012] NSWDC 246; Afarin v Excelior Pty Ltd [2013] NSWDC 65).
56These principles seem to raise the following issues:
(a)whether a fair trial on liability is possible now that 24 years have passed since the injury;
(b)whether the plaintiff's delay of 22 years in bringing the proceedings has been adequately explained; and
(c)the effect, if any, of s 151A.
57In Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25, the claim was commenced in something less than 17 years after the incident. Leave was not granted in that case where the recollection of witnesses was central to the liability issue and thus to the likelihood of a fair trial.
58The same concern applies to the present case. There is a period of 23 years between this application for leave being brought and the incident. The witnesses to the incident were identified but were either unable to be found or, perhaps, in one case, had no recollection of the incident, notwithstanding extensive searches being undertaken for all relevant witnesses.
59It is apparent in this case that the condition of the floor and the nature and features of the trolley are relevant to any question of liability. Photographic evidence of these matters is unsurprisingly unavailable. Ms Ortlipp could give evidence of them from her recollection. So also could one John Robertson who gave evidence before me. Mr Robertson worked at the club at the time but left his employment there on less than friendly terms.
60Mr Robertson described the linoleum on the floor as being damaged and broken with holes in it and indicated that the trolley would get stuck in the holes. However, Ms Ortlipp's evidence was not to the effect that the trolley incident occurred when its wheels got stuck in linoleum holes but rather in a gap between the linoleum and the steel grill.
61The nature of this gap, whether it was permanent or temporary and its size relative to the wheels of the trolley are all matters about which the plaintiff alone can give evidence, because the other witnesses cannot be found.
62Ms Ortlipp was briefly cross-examined about the incident. An alternative version of events was not put to her but she gave evidence that the renovation on the site had an effect on her injury and its cause. Mr Robertson said that the renovation had not reached the area of the safe where the incident is alleged to have occurred. The plaintiff sought to have me disregard her evidence on the relevance of the renovation. But this conflict between her evidence and Mr Robertson's underlines the unsurprising frailty of the plaintiff's recollections so long after the event.
63For the purpose of this application I think I must take the plaintiff's evidence to be her best recollection, but I cannot ignore that she is attempting to recall matters that occurred 24 years ago.
64Although the general incident as she recalled it finds some support in early medical reports, the particular questions that arise in a trial on liability are not explored in those reports. If a trial is to be held, the only evidence on the events of the accident will be from the plaintiff and I regard this as a factor against the grant of leave.
65The second matter advanced by the defendant was the failure by the plaintiff to adequately explain the delay. Ms Ortlipp gave evidence as follows:
"In 1994 a resolution was achieved for lump sum compensation benefits. My matter was resolved at the Sydney Compensation Court. I was never advised at the time as to my claim at common law nor was I informed that I may have had a claim in negligence as against my employer. I was advised that my worker's compensation file would remain open and that treatment would continue to be paid as long as I required it.
...
26. I was never advised that I may have available to me a claim in negligence as against my employer until August 2011, when I received a letter from the common law division of Brydens."
66There is no corroboration of the assertion of a lack of advice in 1994. Presumably, this is because her solicitor is no longer practising and records are unavailable. Whilst I do not doubt that Ms Ortlipp has no recollection of advice about a negligence claim, she is attempting to recall conversations occurring 24 years ago. It would be unlikely that the details of those conversations would remain accurately stored in her memory.
67Further, there is no express evidence of how the failure to receive advice impacted on her beliefs or on the failure to commence proceedings. The Court is left to infer, effectively on the basis of an assertion that she was not informed about a possible entitlement in 1994, that she was never informed until August 2011 of an available claim in negligence against her employer, and that the absence of advice was the material cause or a material cause in her not commencing proceedings.
68Moreover, a mere failure to receive advice, where there is no evidence about what questions were asked is, in my view, a less weighty factor in her favour than positive advice about the lack of a right or about poor prospects of an entitlement.
69In my view, the general obligation to bring proceedings within a limitation period is not removed merely by consulting a lawyer, without consideration of the circumstances, context and conversations that then occurred.
70Whilst the absence of evidence from former lawyers would not necessarily be fatal to a full and satisfactory explanation of the delay (see Khoury v Linfox Australia Pty Ltd [2006] NSWCA 51at [14], [21], [22]), nevertheless, the passage of time leaves me unconvinced of the reliability of Ms Ortlipp's recollection.
71Moreover, there is no real explanation for the further delay of almost two years from 2009 when Ms Ortlipp first consulted her present lawyers to the time in August 2011 when she said she was first informed of the availability of a negligence claim. A pre-filing statement was not served until more than a further ten months thereafter.
72Although there was some suggestion that Ms Ortlipp's injuries may have worsened over time this was not pressed as a reason for the delay in commencing proceedings.
73In the circumstances, I am of the opinion that the delay has made the chances of a fair trial unlikely because of the unavailability of relevant witnesses and the impact of the passage of time upon the recollection of the plaintiff. I am also not satisfied by the evidence of recollection of Ms Ortlipp about the advice she received in 1994 nor am I satisfied of its impact on her decision not to commence a work injury damages claim at that time.
74In my view, the words of Hodgson JA quoted above are apposite. The evidence of explanation for the delay is weak and the prejudice is significant.
75The defendant also submits that it has lost the ability to maintain a cross-claim against the builder involved in the renovations.
76In my view, the proper approach is to recognise that there was evidence of circumstances suggesting a possible cross-claim. The extent to which the renovation had impacted on the linoleum floor, the gap to the steel grate or the area generally, whether the builder or the club was principally in control of the area and possibly whether there were competing priorities in relation to work to be done (there was a reference in Mr Robertson's evidence about the need for asbestos first to be removed) all raise questions about the liability of the builder which cannot now be explored at a trial.
77Finally, the defendant raised s 151A as a reason why leave should not be granted. Although the failure of the solicitor to refer to s 151A may preclude that defence being relied upon in any proceedings, I do not think it is irrelevant to the question of whether leave to maintain the proceedings should be granted. Had the proceedings been commenced within the limitation period it cannot be assumed that the s 151A point would have been overlooked. Even if it had been overlooked, section 318 of the WIM Act was not enacted until 2002, and thus no pre-filing defence was required and so there is no reason to suppose that a later amendment to raise it would be disallowed. Thus, the delay seems directly to have impacted upon the ability of the defendant now to plead the s 151A defence, which as the plaintiff concedes in the present circumstances would be a complete answer to the claim.
78In my view, the inability to ensure a fair trial of the plaintiff's liability claim, the loss of a potential cross-claim against the builder involved in the renovations, the loss of the s 151A defence and the inevitable adverse impact of the passage of 24 years upon the ability and recollections of witnesses and availability of evidence are each sufficient in themselves to cause me to refuse a grant of leave. The unpersuasiveness of the explanation of delay is a further factor in favour of the refusal of leave.