New South Wales Supreme Court CITATION : Vaughan v Australian Tyremarketers t/as Goodyear Auto Service Centre [1999] NSWSC 125 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : N300091/96 HEARING DATE(S) : 18 February 1999 JUDGMENT DATE : 1 March 1999 ELLIS JAMES CHARLES VAUGHAN (Plaintiff) PARTIES : AUSTRALIAN TYREMARKETERS t/as GOODYEAR AUTO SERVICE CENTRE (Defendant) JUDGMENT OF : Master Harrison Mr M Cahill (Plaintiff) COUNSEL : Mr W P Kearns (Defendant) Mr J E Isaken Geoffrey Edwards & Co, Penrith (Plaintiff) SOLICITORS : A O Ellison & Co Solicitors, Sydney (Defendant) CATCHWORDS : Extension of time - Sections 60G & I Limitation Act ACTS CITED : Limitation Act 1969 DECISION : See paragraph 30 17 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON MONDAY, 1 MARCH 1999 N300091/96 - ELLIS JAMES CHARLES VAUGHAN V AUSTRALIAN TYREMARKETERS t/as GOODYEAR AUTO SERVICE CENTRE JUDGMENT (Extension of time - Sections 60G & I Limitation Act) 1 MASTER: The plaintiff by notice of motion filed 30 August 1996 seeks an extension of time within which proceedings can be commenced pursuant to s 60G and s 60I of the Limitation Act 1969 and leave be granted to change the name of the defendant to Tyre Marketers (Australia) Limited t/as Goodyear Auto Service Centre. The plaintiff relied on the affidavits of Ellis James Charles Vaughan sworn 16 August 1996 and two affidavits of John Edwin Isaksen sworn 6 August 1998 and 8 October 1998. The defendant did not rely on any affidavit evidence. The defendant opposes the orders sought in relation to the extension of the limitation period but raises no objection to the order being made as to the change of the defendant's name. Accordingly I make an order in accordance with para 4 of the notice of motion. 2 The plaintiff was cross examined. I observed the plaintiff being cross examined and it is my view that the plaintiff was giving truthful evidence in a straight forward manner. 3 For the purposes of this application I find the following facts. (1) In 1984 the plaintiff was employed by the defendant. During the course of his employment he was required to lift heavy tyres including tractor tyres that were filled with water. There was no mechanical assistance provided to the plaintiff or other employees for the purpose of doing so. (2) On or about 19 August 1985, the plaintiff was lifting tyres when he suffered an injury to his back. The plaintiff saw Dr Rogers and was off work for a period of two weeks and then returned to normal duties. On 20 August 1985, he had x-rays taken of his back and was told that they showed no abnormalities. This is borne out by an x-ray report which comments that the radiographs show a normal lumbo-sacral spine (Ex B). (3) On or about 27 October 1986, the plaintiff was working alone and again lifting tyres and suffered a further injury to his back. He attended Dr Rickard Bell for treatment on 27 and 29 October 1986 and was off work for one week and then returned to his normal duties. (4) In June 1991, the plaintiff suffered a further injury to his back but did not take any time off work for this injury. (5) On or about 30 October 1992, whilst lifting tyres the plaintiff suffered a further injury to his lower back. He was off work for one week and then returned to his to his normal duties. On 2 November 1992, the plaintiff attended Dr Rickard Bell who diagnosed him as having a muscular strain to the back. (6) In April 1994, the plaintiff again suffered an injury to his back but did not take any time off work as a result. (7) In February 1995, the plaintiff suffered a further injury to his lower back whilst lifting tyres but does not recall having any time off work for his injury. (8) Between 1984 and 1994 the plaintiff injured his back 5 times and at most had taken usually one week but a maximum of 2 weeks off work after each accident. A report by Dr Brown confirmed that he was treated as having a back or muscular strain in 1985, 1986 and 1992 (Ex B). (9) During the 5 weeks prior to 24 March 1995, the plaintiff was required to perform extra heavy duties during the course of his employment which involved heavy lifting and excessive bending. On or about 24 March 1995, the plaintiff suffered a final injury to his back although there was no specific accident involved. He was taken to hospital, had x-rays taken and was given a pethidine injection. He has been unable to return to work since. (10) On 27 March 1995, an x-ray of the plaintiff's lumbar spine showed a mild narrowing of the L4/5 disc space. On 29 March 1995, the plaintiff was suffering from severe low back pain and attended Brook Medical Centre. (11) On 19 June 1995 the plaintiff first attended the offices of Geoffrey Edwards and Company solicitors. He had at that stage completed and submitted a claim form to the workers compensation insurer. On or about 29 June 1995 an Application for Determination was issued out of the Compensation Court of New South Wales. (12) Between 24 March 1995 and December 1995 the plaintiff continued to seek regular medical treatment from his general practitioner Dr Brown. The pain in his back worsened and started to radiate into his right leg. (13) In August/September 1995 after an MRI scan which demonstrated degenerative disc at L4/5 with focal right postero-lateral disc herniation with impingement on the existing right L5 nerve root. He was advised by Dr Glass that his symptoms may settle. They did not so he saw Dr Ghabrial in December 1995. (14) From December 1995 to May 1996 the plaintiff's condition deteriorated markedly. (15) In January 1996 the plaintiff read the medical report of Dr Ghabrial and it was at that time he understood that his current physical condition was related to the incidents at his place of employment during February and March 1995. (16) On 3 May 1996 a statement of claim was filed in the Newcastle registry. (17) On 28 June 1996 an amended statement of claim was filed in the Newcastle registry. (18) On 30 August 1996 a notice of motion to extend the limitation period was filed at Newcastle. (19) On 9 September 1996 Grove J stood this motion over to the next sittings. Between 7 September and 27 November 1998 directions were given in Sydney and the motion was listed for hearing. (20) On 28 October 1997 Bishop J of the Compensation Court of New South Wales gave judgment. He made findings that the plaintiff received injury to his back during the course of his employment in August 1995, on 29 October 1986 and due to the nature and conditions of his employment from the beginning of February to 24 March 1995; the plaintiff had been totally incapacitated since 27 March 1995 and apportioned workers compensation liability by way of 30% to the workers compensation insurer on risk at the time of the injuries in 1985 and 1986 and 70% to the workers compensation insurer on risk in 1995. 4 For the purposes of this application only the defendant agrees that the plaintiff has established that he has a real case to advance. It is also agreed between the parties that the applicable law is ss 60G and I of the Limitation Act 1969. The Law 5 The plaintiff relies on s 60G and s 60I(a)(ii) and (iii) of the Limitation Act. The approach to be adopted in dealing with applications for extension of limitation periods is that which has been expounded in recent times in Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866 and in BHP Steel (AIS) Pty Limited v Giudice (& Ors) (Court of Appeal, unreported, 7 March 1997) and Council of the City of Sydney v Zegarac (unreported NSWCA, 26 February 1998). The onus rests with the applicant. In addition to the satisfying of the relevant threshold requirements, it must be shown that it is just and reasonable to make an order. 6 Section 60G empowers the court to extend the limitation period, if it is just and reasonable to do so, "for such period as it determines". 7 The relevant provisions of s 60I are as follows: "(1) A court may not make an order under s 60G or 60H unless it is satisfied that: (a) the plaintiff: (i) did not know that personal injury had been suffered; or (ii) was unaware of the nature or extent of personal injury suffered; or (iii) was unaware of the connection between the personal injury and the defendant's act or omission, at the expiration of the relevant limitation period or at a time before that expiration when proceedings might reasonably have been instituted; and (b) the application is made within three years after the plaintiff became aware (or ought to have become aware) of all three matters listed in paragraph (a)(i)-(iii)." 8 In cases where it is alleged that, as a result of continuing negligence on behalf of an employer, the health and well being of an employee progressively deteriorates, a new cause of action will accrue from time to time as the worker suffers further not insignificant damage to his health and well being - see Dowell Australia Pty Limited v Page (Powell JA unreported, Court of Appeal, 1 December 1995 at pp 16 and 17). for causes of action that arose between 1986 and 1991. Leave is required for causes of action that arose on 19 August 1985, 27 October 1986, June 1991 and 30 October 1992. 9 Counsel indicated that the plaintiff relied on s 60I(1)(a)(ii) in relation to the plaintiff's unawareness of nature and extent of his back injury and s 60I(a)(iii) in relation to the plaintiff's awareness of acts and omissions which are referred to in Dr Adams' report. (ii) Whether the plaintiff has proved that he was "unaware of the nature or extent of the personal injury suffered" 10 The test of knowledge posed by s 60I(1)(a)(ii) requires the court to look at the actual awareness of the plaintiff. Neither the reasonableness of that awareness nor constructive knowledge is an element of s 60I(1)(a) - (Harris v Commercial Minerals Limited (1995-96) 186 CLR 1 at pp 9 and 10). However, s 60I(1)(b) imposes an objective test - "became aware (or ought to have become aware)" of all three matters listed in paragraphs (a)(i)-(iii). The defendant did not submit that the plaintiff "ought to have known" the nature and extent of his injuries. The defendant referred me to Thelander v C D Townsend (Eng) Pty Limited & Anor 32 NSWLR 358 which I did not find particularly helpful. 11 The plaintiff submitted that it was not until he read the report of Dr Ghabrial in January 1991 that he became aware of the seriousness of his back injury. The defendant submitted that the plaintiff had had radiating leg pain since 1985 and was aware of the nature and extent of his back condition. 12 The nature and extent of the injury which the plaintiff has sustained is to be determined as at the date of the hearing of the application (Harris ibid pp 13 and 14). A plaintiff may be held to have been aware of the nature or extent of his injury within the relevant period if during that period he was aware of the effect which the injury was then having upon him and of its likely future course, even though he may have been unaware of the precise pathology or medical diagnosis. On the other hand, knowledge of the medical diagnosis will not itself amount to knowledge of the nature and extent of the injury if the plaintiff is unaware of significant aspects of the prognosis, for example that the injury is permanent and will not be amenable to treatment; or that it may deteriorate with the passage of time. As long as the consequences are of a kind that the plaintiff expects, the plaintiff will be aware of the extent of the injury. 13 I turn now to examine the plaintiff's awareness of the nature and extent of the personal injury suffered. The plaintiff was treated by his general practitioner for back strain or muscle strain in relation to the accidents which occurred on 19 August 1985, 27 October 1986, June 1991 and 30 October 1992. At these times the plaintiff understood that he was suffering from a muscle strain which would resolve itself within a few weeks. Each time he suffered back pain he had a week or two off work. Each time the plaintiff returned to work he carried out heavy duties and had no reason to believe that his injuries had caused permanent damage to his back. 14 On 24 March 1995, the plaintiff suffered a final injury to his back although no specific accident was involved. Since then the plaintiff has been experiencing severe low back pain. In April and May 1995 the plaintiff complained that the low back pain radiated into his right leg. In cross examination the plaintiff admitted that he experienced pain in 1985, it occurred with the back injury and it cleared up within a week or two of the accident. Even in September 1995, the plaintiff was told by Dr Glass that the symptoms might settle. It was from December 1995 to May 1996 that the plaintiff says that his condition deteriorated markedly. 15 Dr Ghabrial, Director of the Department of Orthopaedic Surgery at Royal Newcastle hospital in his report dated 15 May 1996 opined: "Mr Vaughan sustained an injury to his back at work on the 27th March 1995 as the result of heavy work over a 5 weeks period when he was undertaking more work due to the absence of the manager and another employee involving a great deal of lifting and bending. Clinical assessment and investigations suggested a markedly prolapsed disc at the L4/5 disc with compression on the right L5 nerve root. There is no doubt that his condition has deteriorated since I saw him last 6 months ago with increased weakness in his left foot and deterioration of his straight leg raising and tension signs. It is likely that Mr Vaughan will come to surgical intervention for his prolapsed L4/5 disc. However he is not fit for any type of work at that stage and is likely to remain restricted indefinitely from any activities involving heavy lifting and excessive bending as well as sitting or standing for lengthy periods. … From the history given to me by Mr Vaughan, it is likely that his present clinical features, residual disabilities and permanent impairment are related to the activities undertaken around February/March 1995 aggravating his pre-existing lower back problem which remained without any real restriction to his life or activities from 1985 until the prolapse sustained around February/March 1995." 16 While the plaintiff would have become aware that his back condition had deteriorated when he could not return to work a few weeks after the March 1995 incident, it is my view that he was unaware that his back condition was serious enough to warrant surgical intervention at that time. It would have been in the months after March 1995 that the plaintiff would have gradually realised that his back condition had deteriorated and may permanently restrict him from performing activities that involved heavy lifting and excessive bending as well as sitting or standing for lengthy periods. 17 It is my view that the plaintiff was unaware of the extent of his back injury until at the earliest September 1995 when he realised he may have to undergo surgery. It was at this time that he was made aware that his disabilities were related to work he undertook in 1985. This falls within the time period stipulated by s 60I(1)(b). (iii) Whether the plaintiff was unaware of the connection between personal injury and the defendant's act or omission 18 Section 60I(1)(a)(iii) is concerned with ignorance of the existence of acts and omissions rather than legal conclusions. The acts or omissions referred to in s 60I(1)(a)(iii) are the acts or omissions on which the plaintiff relies to found the cause of action referred to in s 60G. Those acts or omissions, will be found in the plaintiff's particulars of negligence. - Drayton Coal Board Pty Limited v Drain (Court of Appeal, Gleeson CJ, unreported 22 August 1995). 19 The plaintiff submitted that he was unaware of the connection between the personal injury and the defendant's acts or omissions until Dr Adams' report was obtained. The report is dated 14 August 1996. There is no evidence that the plaintiff has actually read Dr Adams' report or been told of its contents, nor is there any evidence to show that the plaintiff was unaware of the connection between personal injury and the defendants act or omissions. Thus the plaintiff's case under s 60I(1)(a)(iii) fails. 20 As the plaintiff has passed through the s 60I(1)(a)(ii) gateway, I turn to consider whether it is just and reasonable to extent the limitation period. In Taylor McHugh J referred to the effects of delay in the now often quoted passage which states: "The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period." and; "Legislatures enact limitation periods because they make a judgment, inter alia, that the chance of an unfair trial occurring after the limitation period has expired is sufficiently great to require the termination of the plaintiff's right of action at the end of that period. When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff's action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff's lost right should not be revived that that the defendant should have a spent liability reimposed upon it." and; The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question: Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires an extension." 21 Dawson J, in Taylor said at page 2: "The applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant." and; "The onus of satisfying the court that the discretion should be exercised in favour of an applicant lies on the applicant. To discharge that onus the applicant must establish that the commencement of an action beyond the limitation period would not result in significant prejudice to the prospective defendant. I agree with McHugh J that, once the legislature has selected a limitation period, to allow the commencement of an action outside that period is prima facie prejudicial to the defendant who would otherwise have the benefit of the limitation." 22 In The Council of the City of Sydney v Zegarac (Court of Appeal, 3 September 1997, unreported) the Court of Appeal considered the effect of Taylor in relation to the extension of the limitation period of a case which falls into subdivision 2 of the Limitation Act 1969 - ss 60C and 60E. Section 60E(1)(b) specifically refers to "the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available". By majority )Mason P and Powell JA) held in Zegarac that the trial judge erred by weighing up competing interest of the plaintiff and defendant which meant that the plaintiff was ultimately relieved of the persuasive burden which is placed on the plaintiff. 23 Mason P analysed the views of the Judges of the High Court in Taylor's case. The President quoted the passage by McHugh J which begins "Legislatures enact" and was of the view that Dawson J agreed with McHugh J. Mason P concluded that it could therefore be seen that Dawson J and McHugh JA appeared to indicate that it is mandatory that the applicant negate "significant prejudice" before the discretion could be exercised in his or her favour. 24 Toohey and Gummow JJ (in their joint judgment) expressed themselves in the following terms. "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." 25 Mason P perceived that there may be a distinction between the notion of "significant prejudice" and the notion that delay makes "the chances of a fair trial unlikely" but concluded that the views of the judges in Taylor represented a clear indication that mere proof of actual prejudice will not dictate a rejection of an application to extend time. Mason P then expressed respectful approval and agreement with the following statement of Kirby J in Taylor. "Although attempts have been made to spell out the criteria to be taken into account in judging whether or not an order extending time should be made, care must be taken in the use of such criteria because of the different expression of the relevant provisions of limitation statutes. Furthermore, the factual circumstances of cases are infinitely various. The discretion conferred by s 31(2) of the [Queensland] Act is controlled only by the terms of the Act and the achievement of its purposes, as elaborated above." 26 In determining whether it is just and reasonable to extend the limitation period in this application I will examine whether the delay has made "the chances of a fair trial unlikely" or whether the defendant would suffer "significant prejudice". 27 The defendant submitted that it has been prejudiced as it is 13 years since the first accident occurred and witnesses' memories have faded and that if an extension of time were not granted in relation to the pre 1995 accidents, the plaintiff could still proceed with the 1995 cause of action. 28 I accept that the defendant will suffer presumptive prejudice as it is 13 years since the first accident occurred. The plaintiff gave evidence that after each accident he reported it to his employer and it was written down in a book. From 1984 to 1995 there were the same number of employees, 5 or 6. Over that period there were no changes in the work done or the manner in which it was performed. The employees of the defendant over this period were Barry Moody, the manager who worked with the defendant for the period referred to above. While he no longer works for the defendant, he resides in Muswellbrook. Two fellow employees who worked closely with the plaintiff were Jeff Eade and Tony Budden. Tony Budden was employed by the defendant from 1984 until 1995. Although they no longer work for the defendant they still reside in Muswellbrook. Mr Budden works at the BP petrol station and Mr Eade works at the golf course. The plaintiff does not know the whereabouts of Jeremy Bird but he was only there for about 3 years. The secretary for most of this time was Miss Sue Oates and while she no longer works for the defendant she still resides in Muswellbrook. 29 The plaintiff received compensation payments when he was off work after some of the accidents and the accidents have been the subject of litigation in the compensation court. As there are witnesses available to give evidence and documentation concerning the plaintiff's accidents available, it is my view that the plaintiff's chances of a fair trial are not unlikely. I am also of the view that the defendant will not suffer significant prejudice. The plaintiff has discharged his onus and I am satisfied that it is just and reasonable that an order be made that he be granted an extension of the limitation period. The plaintiff has asked for an indulgence of the court. However the plaintiff submitted that costs be costs in the cause as it was the nature of the plaintiff's back condition that caused the application to be made. The defendant submitted that the plaintiff should pay the costs. The delay in commencing proceedings was primarily because of the plaintiff's back condition deteriorating in 1995. In these circumstances the appropriate order is that costs be costs in the cause. 30 The orders I make are: (1) The plaintiff is granted an extension of time within which to commence proceedings for damages in respect of injuries sustained by him on 19 August 1985, 27 October 1986, June 1991 and 30 October 1992 up to and including 28 June 1996. (2) Order in accordance with paragraph 4 of the plaintiff's notice of motion filed 30 August 1996. (3) Costs be costs in the cause. Last Modified: DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.