25 August, 2017
In Drew v Patricks Stevedores Holdings Pty Limited (No 2) [2017] VSC 352, the Supreme Court of Victoria considered whether Mr Drew's claim for compensation against his former employer, Patricks Stevedores Holdings Pty Ltd, was statute barred.
Background
Mr Drew alleged that he was injured during the course of his employment with Patricks Stevedores. Mr Drew sustained injuries on the following occasions:
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The Supreme Court ruling concerns the timing issues and gives rise to the following two questions:
- Does time begin to run from the injury in November 2002 or from the cessation of his employment in 2014?
- Should time be extended pursuant to s.23A of the Limitations of Actions Act 1958 (Vic) (the Act) to enable Mr Drew to bring his entire claim in this proceeding?
The Decision
Mr Drew relied on Bell Radiology (A Firm) v McGraw[1] and Karatzidis v Victorian Railways Commissioners[2] to support his position that all injuries over the course of his employment ought to be dealt with as a single action in negligence. He said that the cause of action was not complete until his employment ended in 2014 because it was not possible for him to make a claim until that date.
Patricks Stevedores on the other hand, argued that a cause of action accrues when a compensable injury is suffered. The Court agreed with Patricks Stevedores that the cause of action began when Mr Drew suffered injury in 2002 and it was irrelevant that the cause of action in negligence enlarged to include further injuries sustained during his employment.
The Court found that as time began to run in November 2002, Mr Drew was out of time to bring his claim against Patricks Stevedores. Mr Drew then made an application for an extension of time pursuant to s.23A of the Act which gives the Court a broad discretion to extend time if it considers it just and reasonable to do so.
The Court drew an adverse inference from Mr Drew's failure to provide reasons for the delay in bringing the claim. It agreed with Patricks Stevedores' submissions that due to the passage of time, it would be prejudiced by the lack of contemporaneous documents.
Patricks Stevedores also submitted that there was a lack of available witnesses but the Court did not accept that submission. Mr Drew gave evidence that he had contacted three former colleagues, all of whom could recall the November 2002 incident. The Court was not satisfied that Patricks Stevedores had made reasonable enquiries to locate witnesses and accepted Mr Drew's evidence that witnesses were available.
Despite the prejudice that Patricks Stevedores was likely to suffer as a result of Mr Drew's unexplained and significant delay in bringing proceedings, the Court was satisfied that Patricks Stevedores would get a fair trial. The Court drew attention to the availability of a number of witnesses and some limited contemporaneous documents. The Court concluded that it was just and reasonable to extend the time for Mr Drew to bring proceedings.
Implications
This case highlights two key points:
- The Court has broad discretion to extend the time to bring proceedings, even in circumstances where there has been a significant and unexplained delay in commencing proceedings; and
- Parties should make reasonable inquiries about the availability of witnesses which will be a key factor in determining whether a fair trial can be achieved.
[1] (Unreported, Victorian Court of Appeal, Tadgell, Ormiston and Callaway JJA, 7 February 1996).
[2] [1971] Vic Rp 43.
For further information, please contact:
Marcus O’Brien, Partner, Clyde & Co
marcus.obrien@clydeco.com
