Out of Touch but Not Out of Time


Out of Touch but Not Out of Time

In a decision [Mackenzie v Positive Concepts Pty Ltd & Anon [2016] VSC 259 (19 May 2016)] that graphically illustrates the apparent flexibility of the Limitation of Actions Act 1958 (Vic), at least as far as it applies to personal injury claims, the Supreme Court recently granted an extension of time to a plaintiff whose cause of action arose 13 years prior to the commencement of proceedings.


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, Maurice Blackburn. 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 an 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 have received.

Arguments presented by the defendants

First defendant’s arguments

  1. The extension sought by the plaintiff was an indulgence. He therefore bore the burden of demonstrating that justice required that the extension be granted.
  2. Satisfactory or reasonable explanation must be given for the delay.
  3. 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.
  4. The 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:

That leave 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. The 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 extension

  • 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:
  • He accepted the plaintiff was a credible and honest witness.
  • The 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.
  • The 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 rights.
  • Following 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’.[1] 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’.[2] Moreover, that ‘knowledge as to the identity of relevant witnesses and the existence of these investigations and statements clearly assist in ameliorating general prejudice’.[3] 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 [2001] VSCA 138 at [7]:     

“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’.[1] 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.

[1] Mackenzie v Positive Concepts Pty Ltd & Anor [2016] VSC 259 [60].

[2] Ibid [62].

[3] Ibid [64].