On 6 October 2002, a security guard (the
plaintiff) working at the Castello Berwick Springs Hotel was viciously attacked
by a large group of men. The attack came after the plaintiff went to the aid of
another security guard, who had been attacked after ejecting an intoxicated
patron. As a result of the attack, the plaintiff suffered various physical and psychological
injuries, including post-traumatic stress disorder.
The plaintiff made a claim for
compensation pursuant to the provisions of the Accident Compensation Act 1985
(Vic). The claim was accepted by his insurer and benefits were subsequently
paid, including weekly payments of compensation for a period of 104 weeks.
The plaintiff also instructed Hymans
Solicitors to act on his behalf in relation to WorkCover matters and a victims
of crime application. He first attended Hymans on 22 July 2003. The insurer prepared a letter to the plaintiff
dated 9 February 2005 that was sent to Hymans. This noted that the plaintiff's
whole person impairment and psychiatric injury was not sufficient to entitle
him to impairment compensation.
At issue in trial was whether the
plaintiff had received and read the letter sent by the insurer to Hymans. In
particular, attention was drawn to whether he had read and understood that
section in the letter under the heading 'Common Law Proceedings'. The plaintiff
noted that he had not received any advice from Hymans in relation to this and
does not recall ever receiving the letter. Moreover, that he had retained all
letters received from Hymans and provided those to his current solicitors,
The plaintiff noted in his affidavit
that he believed that he had exhausted all of his legal rights and that he had
no further recourse after the 104 weeks of weekly payments ended. He stated that he had relied on Hymans to
advise him as to what his future rights were. Additionally, he gave oral
evidence that sometime in 2012 his flatmate, having suffered a shoulder injury,
received a small payout with the assistance of Maurice Blackburn. The flatmate
handed the plaintiff a business card and suggested that he 'give them a call to
see where you stand'.
The plaintiff brought action against
both the employer (the first defendant) and the operated hotel (the second
defendant). Given the delay of 14 years in bringing the action, the court had
to decide whether to allow the action as there are time restrictions imposed by
the Limitation of Actions Act.
Limitation of Actions Act 1958 (Vic)
Section 5(1)(a) notes that actions
founded in tort must not be brought after the expiration of six years from the
date on which the cause of action accrued. Under this provision, the plaintiff's
right to seek recourse through the courts expired in 2008. The legislation, however,
endows the court with the power to extend this time provided it is 'just and reasonable'
to do so, pursuant to s 23A.
In exercising this discretion, the court
is to consider the following factors captured in s23A(3):
- the length of and reasons for the delay
on the part of the plaintiff
- the extent to which, having regard to
the delay, there is or is likely to be prejudice to the defendant
- the extent, if any, to which the
defendant had taken steps to make available to the plaintiff means of
ascertaining facts which were or might be relevant to the cause of action of
the plaintiff against the defendant
- the duration of any disability of the
plaintiff arising on or after the date of the accrual of the cause of action
- the extent to which the plaintiff acted
promptly and reasonably once he knew the act or omission of the defendant, to
which the injury of the plaintiff was attributable, might be capable at that time of giving rise
to an action for damages
- the steps, if any, taken by the
plaintiff to obtain medical, legal or other expert advice
and the nature of any such advice he may
Arguments presented by the defendants
First defendant's arguments
extension sought by the plaintiff was an indulgence. He therefore bore the burden
of demonstrating that justice required that the extension be granted.
or reasonable explanation must be given for the delay.
- Further to
the above point, the plaintiff was required to establish that he had no awareness
of his entitlement to sue. Given the poor state of the plaintiff's memory and
concentration, and the lack of the Hymans file, it was not possible to find
that the plaintiff did not receive common law advice from Hymans.
plaintiff was careless about his rights. In particular, his failure to take any
action to pursue his rights between 2005 (after Hymans stopped acting for him)
and 2013 (when Maurice Blackburn
commenced acting for him) was unsatisfactory.
Second defendant's arguments
The second defendant echoed the above,
and also added the following:
should not be granted against them, even if granted against the first defendant.
They were in a different position to the first defendant in regard to prejudice,
because they had only learnt of the claim when the writ was issued. They therefore
did not have the opportunity to investigate the circumstances of the assault or
the nature of the plaintiff's injuries at an early stage, as the first
defendant had done.
plaintiff should take action against his former solicitors, Hymans. They had
been negligent in not providing common law advice to their client.
Court's reasons for allowing the
Surprisingly the Supreme Court judge
took the view that the plaintiff had provided a
satisfactory explanation for the delay
on his part and allowed the extension of time in
bringing the proceeding. The judge gave
the following reasons:
accepted the plaintiff was a credible and honest witness.
plaintiff was adamant he had not received advice from Hymans.
- The first
defendant did not contend that the correspondence between the plaintiff and
Hymans that was produced in court contained advice about his common law rights.
- The judge
accepted that until he had spoken with Maurice Blackburn, the plaintiff had no
understanding of the concept of a common law claim. Moreover, even if he were
to have read the section in Hyman's letter titled 'Common Law Proceedings', he would not have understood its implications.
- The judge
accepted the plaintiff's evidence that he believed he had exhausted all his
legal options by early 2005.
assault caused the plaintiff to suffer serious psychological ill health, which
gave rise to the need for ongoing prescription for medication and treatment by practitioners.
Moreover, that this caused at most times total incapacity for employment.
- In 2012
the plaintiff's flatmate encouraged him to call Maurice Blackburn to find out about
his flatmate's encouragement, the plaintiff attended his current solicitors on
27 February 2013.
It is interesting to note that the court
gave the plaintiff the benefit of the doubt in holding that he would not have
understood the implications of the 'Common Law Proceedings' section of Hymans'
letter (if indeed he did read it at all).
The court also noted that 'there is no
evidence of any significant delay on the part of the plaintiff once he was
encouraged by his flatmate to attend Maurice Blackburn'. This view is astonishing for several
reasons. Firstly, the flatmate recommended speaking with Maurice Blackburn
sometime in 2012, but it was not until late February 2013 that the plaintiff
first attended the firm. Secondly, seven years had already passed since the
plaintiff had last been briefed by his previous solicitors. Given the
circumstances, one might expect the court to take issue with the plaintiff's
lack of urgency in pursuing the claim. Thirdly, the flatmate had only advised
the plaintiff to 'give them a call to see where you stand'. On face value, the
flatmate's comments did not suddenly imbibe the plaintiff with insight into his
standing under the common law. It is therefore surprising that the court deemed
this interaction to be the necessary catalyst for the plaintiff to take action
in pursuing his common law rights, particularly given the omnipresence of
advertisements by large plaintiff firms like Maurice Blackburn.
Prejudice caused by the delay
The court found there was no significant
prejudice caused by the delay to either of the defendants, and that they would
still have access to a fair trial. He stated there was no evidence 'that the
police officers involved in the investigation are no longer available to give
evidence, or that documents detailing the police investigation will not be
available to those officers'. Moreover, that 'knowledge as to the identity of relevant witnesses and
the existence of these investigations and statements clearly assist in
ameliorating general prejudice'. The fact that witnesses may be much harder to find and that their
memories may have dimmed with the passing of time seemed to be of no concern to
the court. It is likely the defendants' witnesses will be hard to locate and
even if they can be found they will have a poor recollection of events. This
leaves the plaintiff as the prime source of any evidence as to the events that
occurred on the night of the incident.
Claim against former solicitors
As noted above, the second defendant
contended that the plaintiff should take action against Hymans.
The court noted
this comment from the case of Tsiadis v Patterson  VSCA 138 at :
'If the plaintiff is successful in an
action against the solicitor, the damages to be awarded are not based upon an
assessment of the losses, pain and suffering caused by the injury sustained by
the plaintiff, but are commensurate with the value of the lost chance to recover
damages from the original tortfeasor. Proceedings against the solicitor will be
more complex and expensive than proceedings against the original wrongdoer.
Usually the likelihood that the applicant will succeed in an action against his
or her solicitor cannot be known with any precision when an application under s
23A of the Act is decided.'
Given the apparent negligence of the plaintiff's
former solicitors, it is remarkable that it would note that the 'claim against
Hymans is far from certain'. The court dismissed the potential claim against Hymans, noting that it
was irrelevant to the current issue before it.
Decisions such as this can easily be
characterised as representing the judicial repeal of Acts of parliament. If the
defences in the Limitations of Actions Act are to have any meaning in respect
of personal injury claims it
is obvious that legislative reforms are necessary.
 Mackenzie v Positive Concepts Pty
Ltd & Anor  VSC 259 .
 Ibid .
 Ibid .
Shona Wilde, Sydney
Graeme Armstead, Melbourne
Darren Miller, Perth
Chris Osborne, Darwin