JUDGMENT
1 MASTER: On 17 August 2001, the plaintiff commenced these proceedings by the filing of a Statement of Claim. It propounds a claim for damages arising out of personal injury. It concerns two matters both of which have been described as death incidents. One took place in or about 3 July 1996 (different dates appear in the documents) and the other took place on 19 December 1997. It is alleged that the incidents gave rise to nervous shock, depression and psychological sequelae.
2 The death incidents took place during employment had with the first, second or third defendant. The court has been told that both the first and second defendants have ceased to exist as a legal entity. The third defendant is the only extant legal entity.
3 On 26 November 2001, the plaintiff filed a Notice of Motion. It seeks leave to commence proceedings pursuant to s 151D (2) of the Workers Compensation Act 1987. The hearing of the Notice of Motion took place on 3 September 2003. It was opposed by the third defendant.
4 The plaintiff has sworn a lengthy affidavit (it comprises 176 paragraphs). He has been cross-examined and re-examined. The third defendant relies on a short affidavit sworn by Mr Hundt. Both parties have tendered documentation.
5 I closely observed the plaintiff whilst he was giving evidence. He was not an impressive witness and gave evidence which at times was unhelpful.
6 It is unnecessary to repeat the detail of what is deposed to in the plaintiff's affidavit. It might be said to be directed to giving a life history and a detailed account of attendances for treatment rather than addressing certain of the matters relevant to questions of delay and explanation for delay. Perhaps, this bulk of detail was intended to convey a false impression that delay had been exhaustively explained.
7 The material before the court reveals an unusual state of affairs. The plaintiff is an electrical engineer. He resigned from the employment in 1999. His present employment as a design engineer commenced in August 2002. There seems to be various problems (unrelated to the death incidents) that may have either caused or at least contributed to his present mental state. The task of disentangling the various factors could be expected to be a complex exercise. He has had matrimonial problems. He has had various other health problems. There have been problems thrown up by his employment. Generally speaking, there seems to be dissatisfaction with many aspects of his life. In his evidence, he used an expression to the effect that his world had lost its glow.
8 Prior to the commencement of proceedings, he had seen many medical practitioners and psychologists. He had not told any of them of the death incidents. The proceedings were commenced on the advice of his present solicitor (Mr Healey). It is unclear when this advice was given. Expert medical support supporting his claim was not obtained until late 2002 (after consulting with Professor Kennett). Confirmation of this support was said to come when the plaintiff saw Dr Lovric on behalf of the third defendant.
9 The relevant limitation period (three years from the date on which the injury was received) has expired for the bringing of an action in respect of each of the two death incidents. The court has a discretionary power to grant leave to commence proceedings out of time. It is exercised having regard to the relevant circumstances of the particular case before the court and so that justice is best served. The plaintiff bears the onus of satisfying the court of an entitlement to relief.
10 In opposing the application, the third defendant relies on two matters. Firstly, it says that the plaintiff does not have a viable cause of action. Secondly, it says that the application should be refused because of the delay and the unsatisfactory explanation offered for the delay.
11 There is no evidence of prejudice. The third defendant does not suggest that there is either presumptive or actual prejudice.
12 There is material before the court which throws up doubt as to the bona fides of the plaintiff's claim and as to its prospects of success. However, the court is not in a position on an application such as this to form any view that the claim is hopeless. It clearly has its problems and any trial may be lengthy and expensive.
13 In my view, there has been significant delay and the plaintiff has not provided a satisfactory explanation for the delay. The deficiency is gross (it is one of the worst cases that I have encountered). I add that it does not appear to be the product of oversight.
14 It seems to me, the court is left in a position where it has so little material that it is not even able to make a guess at what has happened. It was not told when the plaintiff first sought legal advice concerning the death incidents. The material is silent as to when his present solicitor assumed conduct of the matter. It is silent as to what was done to prosecute the claim. It is silent as to what advice was given (if any) in relation to limitation periods.