​Negligence action proceeds: court’s wide discretion to extend time limits

Cases

​Negligence action proceeds: court’s wide discretion to extend time limits

An injured dock worker has been allowed an extension of time to proceed with his negligence action against Patrick Stevedores.

WantToReadMore

Get unlimited access to all of our content.

An injured dock worker has been allowed an extension of time to proceed with his negligence action against Patrick Stevedores. This is despite the initial incident giving rise to the action occurring in 2002, well outside the limitation period for bringing a common law negligence action.

The Victorian Supreme Court (Ierodiacononou AsJ) concluded that a fair trial was possible. Arguments from Patrick that its position to defend such a claim had been severely compromised by the passing of time were insufficient to sway the court.

This time extension claim followed an earlier hearing granting Patrick the right to amend its defence pleadings, despite the court then noting that the amendment arose from Patrick’s failure to properly plead the case initially.

Consequently Patrick was given permission to argue the matter was out of time, despite not including this argument in its initial defence. The court pointed directly to this failing by Patrick, but added: ‘Shutting a party out from pleading an available cause of action or defence has real potential to undermine public confidence in the judicial system.’

This amendment to pleadings was granted on May 3, 2017 and the extension of time matter was decided on June 17.

Court’s discretion in extension of time applications


This case (decided June 17) emphasises the wide discretion that courts have to grant an extension of time in common law matters. The prospect of justice not being done together with complicated circumstances can persuade a court to allow a matter to proceed despite being in technical breach of the limitation period.

Background


The dock worker (plaintiff) had experienced six separate incidents/injuries giving rise to workers compensation and negligence claims over the period 2002 to 2014.

After he was made redundant in 2014 he lodged a negligence claim encompassing the full history of incidents, arguing they were related in many respects – eg physical injury. then depression following physical injury. He commenced the action in January 2016.

Is it one claim?


The issue in this case came down to whether the court should treat the claim, encompassing at least six claims over the period 2002 to 2014, as one claim or should they be separately litigated as multiple claims.

Implicit to this issue was whether the correct way to assess the time limit was to consider it running from the time of the first incident in 2002 or whether the whole circumstance should be assessed at the cessation of employment (2014).

The Limitation of Actions Act 1958 (Vic) was the relevant statute and a three-year period was the allowed period in which to bring an action, calculated from the time the time of the injury. 

Arguments

 
Patrick put forward a number of points relating to the difficulty that would arise in defending claims with the long-term history of the incidents in contention here. Points made by Patrick included: documentation no longer existed; witnesses were hard to find;. and the employee/plaintiff failed to act to pursue his claims until after he was made redundant in 2014.

The plaintiff argued that the full and accurate assessment of his injuries and incapacity could not be made until his employment had concluded. 

If a cause of action was complete upon the first compensable injury being suffered, then the plaintiff would have to break up his claim into distinct actions, some of which were out of time.

Extension of time granted


The plaintiff referred to Bell’s Radiology case [(Unreported, Victorian Court of Appeal, Tadgell, Ormiston and Callaway JJA, 7 February 1996) as authority supporting his claim. That case justified a ‘serious injuries claim’ covering the history of incidents and injuries in the plaintiff’s view. The court agreed.

In Bell’s case the court commented: ‘In reality, in cases of this kind there is only one cause of action, namely, a cause of action for negligence, it being alleged that there has been a failure to take reasonable care for the safety of the employee. In our opinion, in the interests of conducting with propriety this class of litigation, cases of this kind should be pleaded simply and straightforwardly as cases of negligence.”

The court acknowledged that the employee of Patrick was slow to pursue claims that could have been lodged, but this was not fatal to his case. There was some merit in the plaintiff’s argument that his medical condition had not properly stabilised until 2015.

The court concluded that a fair trial was possible despite the passing of time and so granted the employee’s claim in this preliminary matter.

The bottom line: A court will look carefully at all relevant events in assessing time extension claims; and the court’s discretion is wide in deciding these matters.

Drew v Patrick Stevedores Holdings Pty Limited (No 2) [2017] VSC 352 (19 June 2017)
Post details