19 As pointed out by Foster AJA, there is no hard and fast rule. I accept that the plaintiff's solicitor has been largely responsible for the not obtaining instructions in relation to whether the plaintiff wished to commence common law proceedings prior to the expiration of the limitation period and that the plaintiff is not responsible for this oversight.
20 The fourth consideration this court must take into account is the nature and effect of any forensic disadvantage. There was a relatively short period of delay, 3 weeks. The defendant has not filed any evidence to establish actual prejudice, but there is some presumptive prejudice caused by the delay. The defendant had notification of the accident immediately after it occurred. I have previously covered the material that is available to both parties. The defendant's insurer had been notified of the claim when workers compensation proceedings were commenced.
21 The fifth and final consideration imposed on this court by Salido is that leave may be refused if it is futile to do so. The defendant submitted that the plaintiff did not have a case to advance. The statement of claim pleads that on 10 February 1998 in the course of tidying the store room the plaintiff was required to lift a large box full of incontinence aids. As she did so she sustained injury to her lower back. The plaintiff's injuries were caused by the defendant's breach of the said implied term or duty of care or both.
22 The particulars of breach are that the defendant firstly, failure to ensure for the reasonable care and safety of the plaintiff; secondly, exposed the plaintiff to a foreseeable risk of injury which could have been avoided by the exercise of reasonable care; thirdly, failure to take any or adequate precautions for the safety of the plaintiff; fourthly, failed to ensure the health, safety and welfare of the plaintiff pursuant to s 15 of the Occupational Health and Safety Act 1983; fifthly, failed to devise, adopt, institute, maintain or enforce a safe system of work; sixthly, failed to undergo a risk assessment of the defendant's premises to ensure the safety of the plaintiff; seventhly, failed to instruct the plaintiff on the safe and effective means of alleviating the risk of injury; eighthly, failed to observe and inspect the system which had been instituted in the above mentioned premises; ninthly, failed to inspect the work premises where the plaintiff was required to work as to ensure its safety; tenthly, failed to have in place a proper and safe system of conducting its operation; eleventhly, failed to provide proper and efficient supervision of same; twelfthly, failed to advise, instruct or educate the plaintiff in relation to safe lifting of heavy boxes and/or equipment; thirteenthly, failure to provide a risk analysis of the lifting requirements of the plaintiff to identify the risk of injury in order to make changes to the system; fourteenthly, failure to provide the plaintiff with assistance in lifting heavy boxes; fifteenthly, further, and in the alternative, the said injuries were occasioned to the plaintiff by reason of the breaches by the defendant, its servants or agents, of its statutory or legal obligations of the plaintiff.