t mcleod) pry ltd (acn 088288037) sunicrust ... the supreme court of victoria at wodonga common law...

.

IN THE SUPREME COURT OF VICTORIA

AT WODONGA

COMMON LAW DIVISIONCIVIL CIRCUIT LIST

DONNA RAE WELSH

V

ADECCO INDUSTRIAL PTY LTD (ACN 004366634)

and

READY WORKFORCE (A DIVISION OF Cl. IANDLERMCLEOD) Pry LTD (ACN 088288037)

and

SUNICRUST BAKERIES Pry LTD (ACN 004402582)

I^E

WHERE HELD

Not Restricted

DATE OF HEARING

DATE OF UDGMENT

CASE MAY BE CITED As

S CT 201503755

MEDIUM NEUTRAL CITATION

LIMITATION OF ACTIONS - Negligence - Personal injury in course of employment -Limitation of Actions Act 1958 (Vic) s 23A - WITether 111hitation period should be extended -Plaintiff seriously injured - Prejudice resulting from delay - Documents not retained -Memory of witnesses jinpaired by effluxion of time - Workplace and equipment no longeravailable as evidence - Application refused

Plaintiff

T FORRESTj

Melbourne

12,13 December 2016

14 February 2017Weisl\ v Adecco & ors

120171 vsc 44

First Defendant

Second Defendai\t

Third Defendant

,

APPEARANCES

For the Plaintiff

For the First and Second

Defendants

For the Third Defendat\t

Counsel

Mr C. Harrison QC withMr N. Griffin

Mr P. lens QC withMs B. Myers

Mr D, Wallis

Solicitors

Todd Legal

Thornson Geer for the first

defendant; IDF Lawyers forthe second defendant

Wotton Kearney

HIS HONOUR

I

Introduction

The plaintiff, Donna WeIsh, commenced employment with the first defendant,

Adecco Industrial Pty Ltd ('Adecco'), on 17 February 2003. Adecco was a labour hire

company. The plaintiff was limitedlately placed with the third defendant, Sunicrust

Bakeries Pty Ltd ('Sunicrust'), to perform baking duties. She remained working at

the Sumcrust bakery at 60 Chapel Street, Wodonga, at all material times. In

December 2004, the plaintiffs employer changed from Adecco to the second

defendant, Ready Workforce ('Ready'), also a labour hire company. She remained

employed by Ready and working at Sunicrust performing the same duties for about

si, ^ month^, in July 2005, the platntiff w^s ^inployed by Goodman F1^Id^" (CF) Pty

Ltd, who had assumed ownership of the Sunicrust brand. The plaintiff's duties

remained unchanged

2

The claim

in her statement of claim filed on 21 July 201.5, the plaintiff aneged that throughout

the course of her employment with the first defendant (17 February 2003 to

December 2004) and the second defendant (December 2004 to 30 July 2005) she was

required to perform ITeavy and repetitive duties. Specifically, the plaintiff relies

upon an injury alleged to have been sustained by her in January 2004 when she lifted

a ITeavy dolly and suffered lower back pain. It is this incident that is at the centre of

the plaintiff's clanT\ against the defendants for danTages said to arise Iron\ their

negligence. It follows that the heavy duties are said to have occurred from February

2003 until July 2005 and the specific injury is said to have occurred in January 2004. I

3

This application

It is common ground that the limitation period for this claim expired in or about

I The plaintiffs amended submissions assert tliat the 'course of employment' injury was sustainedbet, veei\ 17 February 2003 and I August 2006. This is not ITow the writ is pleaded. Notlting turns onthis, however, as it is clear rliat the claim is, in reality, to do witl\ a single incident in Ianuary 2004

I JUDGMENTWeIsh v Adecco & ors

SC

January 2010 - that is, six years after the occurrence of the 'heavy dolly' incident. In

pursuit of a corrunon law claim in negligence, the plaintiff submitted an application

under s 1.34AB of the Accident Contpensi!tioit Act 1985 (Vic) to the Victorian

WorkCover Authority ('VWA') on 1.6 October 2014 - 10 years and 9 months after the

cause of action is said to have accrued. She applies for an extension of time for the

limitation period under s 23A of the Lintitntions of Actions Act 1958 (Vic) ('the Act').

All t}ITee defendants oppose this application.

4 The parties have prepared a joint chronology of relevant events. I am grateful to the

parties for preparing it under the sigrttficant time pressure that was judicialIy

imposed. The momentum of events in the plaintiff's solicitors' office is crucial to this

application, That momentum can really only be properly assessed by reference to the

chronology as set out in full. 2 For clarity in reading that chronology, it should be

understood that Rodney Bird, Robert Currie, Greg Boyall and Mark Clarkson

worked for Sunicrust. Mr Binnie of the firm Belbridge Hague was the plaintiff's

solicitor until Ms Kiin Todd took over the file in January 2012, Ms Todd left

Belbridge Hague in May 2013. The plaintiff then instructed Ms Todd, practising in

her eponymous firm, to act on her behalf. Mr Monti was in 2009 a senior coriumon

law barnster, The prerntses referred to in the chronology is the Chapel St WodorLga

Sunicrust bakery.

1989

3 Novcmbci' 1996

May 2002

14 February 2003

Rodney Bird commences work at premises. '

Robei't Curl'to coiniiiciices work at premises. '

Oreg Boyall commences work at premises. '

Plaintiff signs Acknowledgement of having received and read "Adecco SafetyHandbook, *. 6

a

3

I have not attempted to correct cosmetic blemishes; the substance of the chronology is reproduced asit was received by the Court.Affidavit of Rodney Bird sworn 19 November 2016,141.Affidavit of Robert Dale CUTrie affiTmed 24 November 2016,131.Affidavit of Greg 'Boyall sworn 29 November 2016,121.Affidavit of Marton Jane Mottoi\ sworn 41uly 2016.

2

4

CHRONOLOGY

5

6

SC: JUDGMENTWeIsh v Adecco & ors

17 FebrLiary 2003

27 October 2003

January 2004

April2004

April 2004

Plaintiff commences employment witli the first defendant, Adecco Industrial PtyLtd, the labour In re organisation at the third defendant's premises at 60 ChapelStreet, Wodonga. 7

Plaintiff submits workers compensation claiin to Adecco for. crush injury to herleft hand on 18 September 2003. '

Whilst lifting a heavy dolly the plaintiff suffers low back injury. '

Plaintiffattends the Wodonga Hospital for treatment of severe low back pain. "

Plaintiff claiins she reports back injury to Man< Clarkson. ' '

Plaintiff is employed by the second defendant, Ready Workforce a labour hireorganisation at the premises of third defendant, "

Plaintiff is employed by Goodman Fielder to work at the third defendant'spremises.

Mark Clarkson dies. 14

December 2004

July 2005

3 October 2005

10 FCbrLiary 2006

18 May 2006

23 June 2006

13 AugList 2006

Robert Curric CGascs work at promiscs. ' '

Claim is lodged on behalf of the plaintiff with Goodman Fielder in respect ofinjuries to Iler left leg and right knee. "

Worksite assessment was conducted by Dr Mallrice Wallin who had assessed theplaintiffs injuries in respect of the pain in her shins and knee. "

Plaintiff sulfa'ed injury to Iler cliest, right shoulder and amT whilst employed byGoodmaii Fielder for. whiclt she 10doed a claim for. nt o11 18 August 2006 ''

Greg Boyall ceases work at premises. "

Manufacturing ceases at premises. 20

Rodney Bird ceases work at premises. "

Plaintiff instructs Mr Binnie to lodge a permanent jinpairment claim to investigatethe possibility of obtaining serious initiry certificates in respect of the injuries to

February 2007

August 2007

July 2008

16 July 2008

7

8

9

Plaintiff s Affidavit dated I May 20T6,121; Further Amended Statement of Claim, 161.Affidavit of MjM sworn 4 July 2016, Exh "MjMl"Phinti-ff's Affidavit dated I May 2016,131; Further Amended Statement of Claim, PIPlaintiffs Affidavit dated I May 2016,141Plaintiffs Answer to Third Defendant's Interrogatory 3Pmintiff's Affidavit dated I May 2016,161, Further Amended Statement of Cladm, PIPlaintiffs Affidavit dated I May 2016,171Amdayit of Natasha Sung sworn 30 October 2016, t481 and NYS-IAffidavit of RobeTt Dale Currie sworn 24 November 2016, t31Affidavit of Kim Todd dated 6 May 2016, tn and exhibit "KVTl".Am danit of Kiin Todd dated 6 May 2016, t231, and exhibit "KVT15"^ Assessment Report of D"Maurice Wallin (23 Tune 2006)Plaintiffs Affidavit dated I May 2016, t81; Affidavit of Kiin Todd of 6 May 2016, t81Affidavit of CTeg Boyall sworn 29 November 2016,121Affidavit of Namsha Sung sworn 41nly 2016, t41.31(c)Amdayit of Rodney Bird sworn 19 November 2016, [4]

3

ID

lI

:!2

33

}4

15

16

T7

18

19

20

21


22 August 2008

5 September 2008

lid. chest, neck and right shoulder. 22

The plaintiffpaid funds into a trust to cover disbursements in respect of Inedicalreports.

Mr Binnie's assistant arranoed an appointment with Mr Brearley for. Friday 28November 2008 to provide an assessment in respect to the injuries to her chest,neck and right shoulder. 24

Plaintiffs back condition deteriorates and she sought treatment. "

Mr Binnie contacts Selflnsurance Services, the insurers of Goodman Fielder* toobtain reports of treating doctors in respect of the plaintiffs injuries to Iler chest,neci< and right shoulder. 26

The plaintiff attends Mr Daniel Seaton, a my other apist, 27

Plaintiff attends Dr Liu at the Wodonga Chinese Medical Centre with acute lowback pain radiating into the hips and groin. "

Mr Binnie telephones the plaintiff concerning medical reports he had receivedfrom both Dr Andrews and tile self-insurer in respect of the injuries to chest. neckand right shoulder and is given instructions to brief Counsel. "

Mr Monti of Counsel provides advice regarding the injuries to the chest, shoulderand neck.

October 2008

3 October 2008

6 October 2008

7 October 2008

21 October 2008

5 November 2008

October ~ December2008

November/December 2008

8 December 2008

Plaintiff receives treatment from a chiropractor, Mr Tiin Maguire of Wodongaand her GP, Dr Bowman. 31

The plaintiff has a number of attendances LIPon Mr Tim Maguire, chiropractor,with Coinplete Care Beechwortli Road, Wodonga, "

Plaintiffis inferit\Ted by Goodmaii Fielder Iler entitlements to weekly payineiits inrespect of the injuries to the neck, chest and shoulder will be terininated eff^:ctivefrom I March 2009.33

12 December 2008

12 December 2008

22

23

Mr Maguire, chiropractor, refers the plaintiffto Dr Bowlnaii because of numbnesswhich had developed in the plaintiffs orojn. 34

Plaintiff sees her GP, Dr Bowman, who immediately referred her for an MRI andon 15 December referred the plaintiff to Mr MCMahon. "

24

Affidavit of Kim Todd dated 6 May 2016,1101.Affidavit of Kim Todd dated 6 May 2016,1111.Affidavit of Kiin Todd dated 6 May 2016,1121.Plaintiffs Affidavit dated I May 2016, t121.Affid^vit of 1<in, Todd dated 6 May 2016,1131 and "KW5".Affidavit of Kim Todd dated 6 May 2016,1141 and "KVT6"Affidavit of Kim Todd dated 6 May 20T6,151 and "KVT7".Affidavit of I'm Todd dated 6 May 2016, t161Affidavit of Kim Todd dated 6 May 2016, t171Plaintiff's Affidavit dated I May 2016,1131Affidavit of Kim Todd hared 6 May 2016, t181Amdayit of Kiin Todd dated 6 May 2016, 1191Affidavit of Kim Todd dated 6 May 2016, ITSlAffidavit of Kim Todd dated 6 May 2016, t201

25

26

27

28

29

30

31

32

33

34

35

SC: 4, JUDGMENTWe Ish v Adecco & ors

15 December 2008

23 December 2008

5 January 2009

Mr Binnie is informed by tlie plaintiff of the onset of low back and referred painto her left leg which 11ad been present since 2004 and had been low-key incomparison to her other injuries. 36

Mr I. MCMahon, neurosurgeon, operates LIPon the plaintiffs back inMelbourne. 37

Plaintiff informs Mr Binnie about her surgery done on 23 December 2008 andtliat she went back to nor employinent at SLinicrList Bakeries and that SIIe 11adreceived emergency treatment at the Wodonga Hospital. "

Plaintiff had a telephone conversation with Mr Binnie and infonns him that shehad found the report of Dr Maurice Wallin. 39

Mr Binnie during a review of reports and correspondence in respect to thecontribution of her 2004 injury he emphasises treatment at the WodoiigaHospital, 40

A report of the plaintiffs low back condition received by Mr Binnie from DrRoss Andrews who had been the work's doctor. "

NIT Sealon, Inyothei'apisi, provides a report Toriiis 11'eatme!11 or the plainiifFs lowback condition. 42

The plaintiff provides Mr Binnie with two claim forms, one in respect to theinjury to her low back, 43

Mr Binnie contacts Mr MCMahon's rooms In regard to a Inedical report giving thecausatioii of tlie plaintiffs low back in^^Iy. 44

Mr Billnie attends a conciliation conference with Ms Sharon Breniiaii of tile

Accident Compensation Conciliation Service in resp. ect of the plaintiffs injuriesto her chest, shoulder and neck. Reference is made concerning the flirther daiin tobe made in respect of the plaintiffs low back. '5

Mr Binnie receives a call from Tracy Fox, solicitor, of the self-insured GoodmanFielder. A discussion took place concerning where claim forms should be served.It was noted in that conversation Inat flirther claiins would be Inade i. e. in respectof 11/6 plaintiffs low back. Mr Dalliel MCClellan, GoodmaiiFielder of LockedBag 2222, North Ryde NSW 2113 was stated as the appropriate palty to receiveclaiin forIris. 46

2 March 2009

31\larch 2009

20 April 2009

27 API. i12009

21 May 2009

I I June 2009

12 June 2009

15 June 2009

36

37

38

39

40

Amdartt of Kim Todd hared 6 May 2016,12/1 and "KVT12"Plaintiffs Affidavit dated I May 2016,1151.Affidavit of Kim Todd dated 61, lay 2016,1221 and "KVT13"Affidavit of Kim Todd dated 6 May 2016, t231 and "KVT15"Amdartt of Kim Todd dated 6 May 2016, t241 and "KVT16"Affidavit of Kiln Todd dated 6 May 2016, t251 and "KVTT7".Affidavit of Kim Todd dated 6 May 20T6, t141 and "KVT6"Am dayit of Kim Todd dated 6 May 2016, t261Affidavit of Kim Todd dated 6 May 2016, t271 and "KVT21".Affidavit of Kim Todd dated 6 May 20T6, t281 and "KW2T"Affidavit of Kim Todd dated 6 May 2016, t291 and "KVT22"

5

41

42

43

44

45

46

SC: JUDGMENTWeish v Adecco & ors

17 ILine 2009

17 June 2009

25 June 2009

Mr Mahon provides Mr Binnie with a repoit concerning the plaintiffs low backdated 7 June 2009.47

Mr Binnie had a confer'ence with the plaintiffin respect to claim formsparticularly the claiin in respect of weekly payments for' the plaintifFs low backcondition. 48

A claim form dated 17 June 2009 in respect of the plaintiffs low back conditionis served o1T Mr Daniel MCClejlan. ''

Letter received from Sparke Helmore, the solicitors for. Goodman Fielder,advising the claim for compensation in respect of the low back has been deemednot comply with s. 103(2). 00

Mr Binnie sends amended claim for. ms together with a certificate of incapacity toSparke Helmore. 51

Mr Binnie received a call from Ms 110na Strong of Sparke Helmore pertaining tothe dates in respect of the onset of symptoms associated with the plaintiff's lowback condition. 52

A jetler was I'eceived 11'01n Spat'ke Helmoi'e I'eqLiestinu confirinatioii in writino inrespect of the date of injuty to the low back. 53

Mr Binnie arranged to meet Mr Monti of counsel on the following day reqtiestingadvice concerning the letter from Sparke Hellnore of 17 September. "

Mr Binnie forwards a letter to Sparke Helmore confirming the date of injury. "

Sparke Helmore by letter advises Goodinan Fielder not the self;insurer pre-December 2005.56

Mr Binnie telephones the Wodonga Hospital attempting to o6t records in respectof tlte plaintiffs treatment, 57

Mr Binnie has a conference with the plaintiff who provided him with documentsfrom the Wodonga I~10spital in respect of all attendance on 24 April2004. "

Sparke Helmore reqtiest the consent of Mr Binnie to represent their client at theconciliation conference set down for. 11 Febrtiary 2010 ill respect of the plaintiffs

.. 59other injuries. 5

3 July 2009

12 August 2009

27 August 2009

17 September 2009

21 September 2009

22 September 2009

I October 2009

7 October 2009

26 October 2009

7 January 2010

47

48

49

50

SL

52

53

54

55

56

57

58

59

Affidavit of Kiin Todd dated 6 May 2016, t271 and "KVT20"Affid^vit of Kim Todd dated 6 May 2016, t301 and "KVT23"Affidavit of Kim Todd dated 6 May 2016,13/1 and "KVT24", "KW25" and "KVT26"Affidavit of Kim Todd dated 6 May 2016,1321 and "K\7T27Affidavit of Kiin Todd dated 6 May 2016,1331 and "KVT28".Affidavit of Kim Todd dated 6 May 2016,1351 and "1<\/T31"Amdavit of Kim Todd dated 6 May 2016, t361 and "KVT32".Affidavit of Kiin Todd dated 6 May 2016, [37] and "KVT33".Affid^vit of Kim Todd dated 6 May 2016, t381 and "KVT34"Amdartt of Kiin Todd dated 6 May 2016, t391 (NB letter not exhibited),Affid^vit of Kiin Todd dated 6 May 2016,1401 and "K\IT35"Affid^vit of Kiin Todd dated 6 May 2016,14/1 and "KVT36".Affidavit of Kim Todd dated 6 May 2016,1421 and "K\1138".

6SC: JUDGMENTWeIsh v Adecco & ors

20 January 2010

21 January 2010

3 Marcli 20 I O

Notice received from Goodman Fielder self-insurers re medical expenses inrespect of the injuries to the plaintiffs chest, shoulder and neck would cease 17February 2010.60

A letter froin Sparke Helmore suggesting the most efficient way to deal with allissues between the parties was by way of hearing at the Maoistrates' or CountyCourt. 61

Mr Binnie 11as a disctissioii witlillona Strong at Sparke Helmore iiT respect of tlieplaintiffs other injuries and the lodging for the claim for the plaintiffs low backinjury which was seen as complicated. 62

Mr Binnie chases up enquiries from the plaintiffs treaters in respect of her backcondition. 3

Dr Liu of the Wodonga Chinese Medical Centre provides notes and report inrespect of his treatment for the plaintiffs acute low back pain radiating into herhips and groin.

Mr Binnie sends a letter to Sparke Helmore seeking clarification whether thePlaintiff's employer was Bums Philip & Company or Goodman Fielder Bakery.Letter encloses copy Plaintiffs payslips from Htion Personne! and Adecco. "

Mr Binnie received a phone call from 110na Strong discussing the joining ofBurns Philip as an insurer of Goodman Fielder. Ms Strong is said to have statedthat Burns Philip is the insurer of Goodman Fielder at the time of the injury backin FebrLiary 2004. It was SUGgested that Mr Binnie for'ward a copy of the claim toBurns Philip to cover the period of the employment frotn 2004 through to August2005 when Goodmaii Fielder took over as self-insurers. "

Mr Binnie had a conference with Mr Pierorazio and discussed the for. warding ofthe claim to be made against Goodmaii Fielder, whether a frosli claim needed tobe drafted for service on Burns PIiilip. (Note paragraph 50 of the affidavit statesthe coiTfe^ence was with Mr Monti - that is incorrect). 67

Claiin lodged on Burns Philp in respect of Plaintiff back injury. It is noted that inthe lettei' sent to Burns Philp the fact that a claim for. this littiry had been servedon Goodman Fielders Solicitor on 25 June 2009. "

Burns Philip wrote to tlie plaintiff rejecting her claim. The infer'inarion in"KVT48*' differs from info^mation which had been provided by GoodmanFielder in its letter of 8 December 2008 (Exhibit "KVT10"). 69

16 Marcli2010

20 March 2010

24 March 20 I O

25 March 2010

13 April2010

23 April20I O

60

or

62

63

Affidavit of Kim Todd dated 6 May 2016, t431 and "KVT39"Affid^vit of Kim Todd dated 6 May 2016, t441 and "KVT40".Affidavit of Kiin Todd dated 6 May 2016,1461 and "KVT42"Affidavit of Kim Todd dated 6 May 2016,1471 (NB "K\1143" is missing from the affid^vit)Affid^vit of Kim Todd dated 6 May 2016,1151 and "KVT7".Affidavit of Kim Todd dated 6 May 2016,1481 and "K\7T4.4"Affidavit of Kim Todd dated 6 May 2016,1491 and "KVT45".Affidavit of Kiin Todd dared 6 May 2016,1501 and "K\7T46"Affidavit of Kiin Todd dated 6 May 2016,15/1 and "K\7T47".Affidavit of Kiin Todd dated 6 May 20T6,1521 and "KVTIO" and "KW48"

7

64

65

66

67

68

69


14 May 2010

23 June 2010

24 June 2010

Further letter froin Burns Philip stating that tlie claim form dated 17 June 200911ad only been received on 4 May 2010. '0

Mr Binnie received a phone call from Mr Pierorazio and suggested that the Inatterwould have to be referred to conciliation at the earliest possible time. "

The plaintiff signed a reqtiest for conciliation to be directed to both GoodmanFielder and Bums Philip, 72

Mr Binnie had a conversation witli Ms 110na Strong of Sparke Helmore in respectof the low back condition and advised Ms Strono that a further claim on the

61nployer Goodman Fielder for the period of December 2005 to March 2007would be lodged on the basis that the plaintiffs injury had been aggravated orexacerbated during that time. 73

Mr Binnie wrote to Burns Philip enclosing a copy of the plaintiffs WorkCovercertificate of capacity dated 23 June 2009.74

A letter was forwarded to ACCS requesting conciliation in respect of the disputewith Burns Philip regarding the back injury, 75

ACCS pro^Cled a letter 11'01n Wisewoiild IVlalTony to the elf^ct that they acted ForBums Philip. 76

29 June 2010

2 Jtily 2010

2 July 2010

16 IUT}, 2010

11 Aug!1st 2010

23 August 2010

I September 201 O

Burns Philip wrote to Mr Binnie confirming the rejection of the plaintiffsclaim. 77

15 September 2010

Mr Binnie served an Injury Claim Form dated 4 August 2010 claiming weeklypayments.

On page 2 it is again confirmed that 111e plaintiff was 61nployed by Burns Philip &Company Limited from abotit 2000 or 2001 linti! 21 September 2005 when theplaintiffs employment was taken over by Goodman Fielder. "

By facsiinile to the Accident Compensation Conciliation Service Mr Binnierequested a Certificate of OLitcome be is SIIed as it is most tinlikely that the Inattercould be resolved in a conciliation conference. ''

Mr Binnie had discussion with a representative of the Accident CompensationConciliation Service regarding the need for a certificate of determination andanother with Mr Tony Robinson of Self Insured Services who confirmed that hewas satisfied there ITad been a claiiTi Inade o11 Bums Philip as a self-insurer for

15 September 2010

70

71

72

73

74

75

76

77

78

79

80

Affidavit of Kim Todd dated 6 May 2016,1531 and "KVT49"Affidavit of Kim Todd dated 6 May 2016, t541 and "KVT50".Amdanit of Kim Todd dated 6 May 2016,1551 and "K\IT51"Affidavit of Kim Todd dated 6 May 2016,1561 and "KVT52"Affidavit of 1<inI Todd dated 6 May 20T6,1571 and "KVT53".Affidavit of kiri, Todd dated 6 May 2016, t581 and "KVT54"Affid^vit of Kim Todd dated 6 May 2016, t591 and "KVT55".Affidavit of Kiri Todd dated 6 May 2016,16/1 and "KVT57"Affidavit of Kiin Todd dated 6 May 20T6,1621 and "KW58".Am dayit of Kitn Todd dated 6 May 2016, t631 and "KVT59"Affidavit of Kim Todd dated 6 May 2016,1641 and "KVT60".

8SC: JUDGMENTWe Ish v Adecco & ors

17 September 201 O

11 November 2010

29 November 2010

weekly payments and for a claim for whole person jinpairinent. "

13 December 2010

Conciliation Outcome Certificate is provided in respect oftlie plaintiffs claim forweekly payments of compensation in respect of the low back condition. "

Mr Monti of Counsel provided a Statement of Claim. "

Mr Binnie had a conference with the plaintiffto settle the Statement of Claim ''

A letter received from Sparke Helmore dated 9 December 2010 queryino whetherthere was a claiin in respect of back injury to be lodged against GoodmanFielder 85

Mr Binnie had a discussion with Ms 110na Strong of Sparl<e Helmore in respect ofa then claim against Goodman Fielder. ''

Ms 110na Strong of Sparke Helmore telephoned Mr Binnie to inform him therehad been a problem in respect of the claim number, She recommended the issueof further claims, 87

liona Strong confirms the address for service on Goodman Fielder by email, "

Letters forwarded to Goodman Fielder Self Insured Services and Sparke Helmoreattaching claiin forIris in respect of both weekly payments and 11npairmentbenefits in respect of the back condition. "

Sparke Helmore wrote the plaintiff c/- Mr Binnie, denying liability in respect totlte claiin for weekly payments in respect of the plaintiff's 10\\! back condition. "

A Conciliation 011tcoine Certificate was issued in respect of the claiin aoainstGoodman Fielder. "

A Writ and Statement of Claiin was issued against Burns Philip and GoodinanFielder. 92

Proceedings were transferred into the WorkCover List and Consent Orders fileddated 19 May 201 I. 93

Mr Binnie met with tlie plaintiff to discuss further and better particulars requestedby Sparke Helmore. During that meeting Mr Binnie iiTtroduced Ms Kiln Todd, "

20 December 2010

21 December 2010

21 December 2010

22 December 2010

17 January 20 I I

2 February 2011

11 March 2011

19 May 2011

20 May 2011

81

82

83

84

85

86

87

88

89

90

91

92

93

94

Affidavit of Kim Todd dated 6 May 2016, t651 and "KVT61"Affidavit of Kiln Todd dated 6 May 2016, t661 and "mm62"Affidavit of Kim Todd dated 6 May 2016, t671Affidavit of Kim Todd dated 6 May 2016, t681 and "KVT63"Affidavit of Kim Todd dated 6 May 2016, t691 and "K\IT64"Affidavit of Kim Todd dated 6 May 2016,1701 and "KVT65"Affidavit of loin Todd dated 6 May 2016,17/1 and "1<n66"Affid^vit of Kim Todd dated 6 May 2016,1721 and "KVT67'.Affidavit of Kim Todd dated 6 May 2016,1741 and "KVT7T".Affidavit of Kim Todd dated 6 May 2006,1761 and "KVT73".Affid^vit of Kim Todd hared 6 May 2016,1791 and "KVT76"Affid^vit of Kim Todd dated 6 May 2016,1801 and "KVT77"Affidavit of Kiin Todd dated 6 May 2016,1821 and "KW78"Affidavit of Kiin Todd dared 6 May 2016,161, t841

SC: 9 JUDGMENTWe Ish v Adecco & ors

23 May 201 I

. 14 July 2011

6 December 2011

January 2012

The plaintiff underwent fillther spinal surgery on Iler low back performed by MrI. MCMahon in Me Ibotjrne. 95

18 June 2012

The Plaintiffs claim was fixed for. hearing at Melbourne on 6 December 2011 '

Matter listed in Melbourne but not reached, "

18 JLine 2012

Ms Todd took over the conduct of the plaintiff's file with Belbridge Hague untilMay 2013 when she left the Ginployinent or Belbridge. "

Matter fixed before his Honour Judge Bowman at Wodonga, a number of mattersin the Statement of Claim could not be pursued, his Honour granted leave for anamendment to the Statement of Claiin to be issued. "

4 September 2012

An Amended Statement of Claim against the two defendants was lodged. '''

The matter was refixed for hearing in Wodonga. During those proceedings anissue was raised contrary to information provided by Burns Philip in its letter of14 May 2010 (Exhibit "KVT48") and the second defendantinitsletter of 8December 2008 (Exhibit "KVTIO") that the plaintiff had been employed bylabour hire companies dtiring the period of her employment alleged to be byBtiTnS Philip. 101

The plaintiff gives evidence that she has been employed by labour hirecompanies engaged by Burns Philip, namely Huon Personnel, Adecco and ReadyWorkforce. The Inatter is adjourned, after Burns Philp is given leave to withdi. awthe admission of employment in its defence and the Plaintiff is given leave to addAdecco and Ready Workforce to the PI. oceeding. ''2

Ms Todd met with the plaintiff to complete work injury claiin forms which werethen served on both Adecco and Ready Workforce. '03

QBE Insurance on behalf of Adecco rejected the claims for weekly payments inrespect of the low back condition. 104

CGU on behalfof Ready Workforce rejected claims for weekly payments inrespect to the low back condition. 105

GoodiiTaii Fielder destroys approximately 8,000 11nidentified boxes. "'

Conciliation Outcome Certificates were issued in respect of the claim for weeklypayments. A Ftirther Amended Statement of Claim seeking weekly payments wasis SLiecl PUTStiant to the older Inade by his I-10notii' Judge Bowman o114 Septeiiibei

5 September 2012

12 September 2012

14 November 2012

16 November 2012

Approximately 2013

7 February 2013

95

96

97

Pmiritiff's Affidavit I May 2016, t181; Affidavit of Kim Todd dated 6 May 2016,1851,Affidavit of I^in Todd dated 6 May 20T6, t901 and "KVT84".Affidavit of Kim Todd dated 6 May 2016,1931Affid^vit of Kim Todd dated 6 May 2016,1941Affidavit of Kiri Todd dated 6 May 2016,1961Affidavit of Kim Todd dated 6 May 2016, t961 and "KW^"Affid^vit of Kiin Todd dated 6 May 2016, t991Affidavit of Kim Todd dated 6 May 2016,11001Affidavit of Kim Todd dated 6 May 2016,11011 and "KVT90" and "KVT91"Affidavit of Kim Todd dated 6 May 2016, t1031 and "KVT92"Affidavit of Kin\ Todd dated 6 May 2016,11041 and "KVT93"atfid^vit of Nat^sha Sung sworn 30 Oat 2016, 146.81 and 162.41

10

98

99

100

101

102

103

104

To5

106

SC JUDGMENTWe Ish v Adecco & ors

25 - 27 November2013

26 November 2013

2012 and serviced on Adecco and Ready Workforce. "'

26 May 2014

May 2014

Hearing at Wodonga by his Honour Judge Bowlnan with some evidence take inMelbourne on 2 December. 108

The proceedings against Goodmaii Fielder were dismissed by consent. ' ''

His Honour JLidoe Bowman lianded down 11isjudgmeiTt in the plaintiff against thedefendants Adecco and Ready Workforce. ' 10

Plaintiff instructs Kiin Todd to act on her behalf in making a serious injuryapplication in respect of her low back. ' ''

His Honour made Consent orders consequent upon his decision of 26 May2014/12

19 June 2014

21 August 2014

16 October 2014

19 February 2015

Counsel was briefed to advise and settle documentation in respect of the serious.. 1/3injury application.

Section 134AB application was submitted to the Victorian WorkCover AuthorityTogether with copies on the reuisiered offices of Adecco and Ready Workforce. ' ''

Serious injury certificate is issued against both Adecco and Ready Workforce.The plaintiff instructs Ms Todd to institute common law proceedings. ' ''

Email from Norton Rose EUlbright Australia, acting o11 behalfof Burns Philiphave stated that Burns Philip & Company was a holding company only wlioprovided references to Qtiality Bakers Australia Limited and Sunicrtist BakeriesPty Ltd and was unable to noininate the host employer and occupier. ' ''

Counsel was briefed to settle the draft Statement of Claim and specificallyadvising as to the con. ect host employer and occupier to be joined in theproceedings.

Counsel's advice was received which included a settled Statement of Claiin. "'

The Statement of Claim was filed and copies served upon the defendants, ' ''

Notice of Defence was filed by DP Lawyers on behalf of the second defendant, "'

Notice of Defence was filed by Thoinsoii Geer on behalfofthe first defendant. "'

I May 2015

6 July 2015

20 July 2015

21 July 2015

21 August2015

15 September 2015

To7

108

109

ILO

Affid^vit of Kim Todd dated 6 May 2016, t1051 and "KVT94"Plaintiff s Affidavit I May 2016,1191Affidavit of Kim Todd dated 6 May 2016,11/01.Phinti. ff's Affidavit T May 2016,1191; Pare 11 Affidavit of Kim Todd dated 6 May 2016, t111Affidavit of Kim Todd dated 6 May 2016, t21Affidavit of Kim Todd dated 6 May 2016,11/21 and "K\7197"Affidavit of Kim Todd dated 6 May 2016, t1131.Affidavit of Kim Todd dated 6 May 2016, t1151Affidavit of Kim Todd dated 6 May 2016,11201.Affidavit of Kim Todd dated 6 May 2016,11231Am dayit of Kiin T, dd dated 6 May 2016,11241.Affidavit of Kiin Todd dated 6 May 2016,11261Affidavit of Kiin Todd dated 6 May 2016,1/291Amdayit of Kiin Todd hared 6 May 2016, t1281.

111

112

113

114

115

116

117

118

119

120

SC: 11 IUDGMENTWe Ish v Adecco & ors

23 September 2015 Notice of Defence was filed by Sparke Helmore Lawyers on behalfofthe thirddefendant. 121

A Notice of Change of Solicitors ill relation to tlie third defendant was filed byWottOn Kearney. 122

Greg Boyall provides additional documents to the third defendant's solicitors. "'

Legal principles

5 Section 23A(2) of the Act empowers a court to extend the limitation period within

which an actioi\ for personal injury may be brolight. The court must be satisfied that

it is 'just and reasonable to do so'. In determining whether it is so satisfied, s 23A(3)

requires that the court 'shall have regard to all the circumstances of the case

including':

16 October 2015

I December 2016

(a) the length of and reasons for the delay on the part of the plaintiff;

(b) the extent to which, having regard to the delay, there is or is likely

to be prejudice to the defendant;

(c) the extent, if at^I, to I, \71rtch the defendant had taken steps to make

available to the planttiff means of ascertaining facts which were or

wight be relevant to die cause of action of the plaintiff against the

defendant;

(d) the duration of any disability of the plaintiff arising on or after the

date of the accrual of tite cause of action;

(e) the extent to which the plaintiff acted promptly and reasonably once

she knew that the act or omission of the defendant, to which the

injury of the plaintiff was attribtLtable, Thight 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 she may have

12t

122

123

(f)

Affidavit of Kim Todd dated 6 May 2016, 11301Affidavit of Kint Todd dated 6 May 2016, IT3TlAffidavit of Natasha Sung sworn 9 December 2016,171 - 181

12SC: JUDGMENTWe ISI\ v Adecco & ors

6 The principles that apply to tits application are uricontroversial:

(a) The plaintiff bears the on us of establishing that it is just and reasonable to

order that the limitation period be extended. 124

(b) Should the defendants establish by evidence that they may suffer prejudice by

granting the plaintiff an extension of time, then it is for the plaintiff to

demonstrate that that evidence does not demonstrate prejudice. 125

(c) The considerations referred to in s 23A(3)(a) and (b) of the Act are not to be

weighed against each other; the Court must endeavour to 'synthesise' the

competing considerations '11\ arriving at a conclusioi\ that account of them

all' T26

received.

(d) The relevant delay is the delay 'between the accrual of the cause of action and

the making of the application for an extension of time'. 127 For present

purposes, I accept tlits to be upon the submission of the s 134AB serious

injury ^PPIicati. n to th^ VWA (16 October 2014),

Relevant prejudice to a defendant is that which actually occurred by reason of

the delay, as well as the prima facte prejudice suffered by a defendant who, if

not for the application for extension, would have the benefit of the limitation

period. 128

The longer" the delay in COLTUTLencing proceedings, the more likely it is that

there will be prejudice from lost witnesses or fading recollections. 129

(e)

(f)

124

125

126

127

128

129

Bell a SPC Ltd 119891 ER 170,174-175 ('Ball'); B, ,^bone South Regionnl Hen!tit Authority o Taylor (1996)186 CLR 541,547 (Toohey and Gummow 11) ('Brisbane Smith')B"is brute South (19%) L86 CLR 541,547 (Toohey and Gummow ID.Tsindi^ I, Pattersoii (2001) 4 VR 114,123 1331 (BuchananjA) ('Tsi"dis').Demi I, Western Di^in'ct Hen!tl, S, ruice o Alloy 120091 VsC 151, t221 ('Demi').B, .is bone South (1996) 186 CLR 541,544 (D^wsonj).Byish"ite Smith (1996) 186 CLR 541,551 (MCH^ghj).

13SC: IUDGMENTWeIsh v Adecco & ors

7

Evidence

The court book constituted four lever arch folders, which I received as a single

paginated exhibit. The parties identified in subrhissions the precise documents relied

upon, I indicated to the parties that my consideration of the tendered court book

would not go beyond those documents, All parties were content with this course,

and I have closely considered those identified documents. These documents were

attached to over twenty affidavits from various deponents. The plaintiff deposed to a

relatively short affidavit and was cross-examined briefly. I shall refer to her evidence

and other aspects of the documentary evidence in the 'analysis' section of these

reasons which follows, In short, I considered the plaintiff to be generally a reliableand credible witness.

8 11\ addition to the chrono100)7 and the evidentia^; material in the court book, a

further piece of evidence emerged on the second day of the hearing, In response to a

notice to produce, a file note dated 23 April 2009 made by the plaintiffs then

solicitor was discovered within a number of lever arch folders of material handed

o\7er to the defendants that morning. 130 That file note was of a conterence held at

Belbridge Hague benteen the plaintiff, Mr Binnie and Mr Monti. I shall refer to it in

the analysis sectioi\ of these reasons.

9

Submissions

TIT substance, the plaintiff argued that it would be just and reasonable to extend the

linttation period in all the circumstances of the case. The circumstances relied uponwere these:

(^) The plaintiff's back condition only became 'serious' towards the end of the

limitation period.

The identity of her real employer was shrouded ill mystery until2012.

Any tardiness in the prosecution of ITer claim was atETibutable to her solicitor

(b)

(.)

130 Transcript of Proceedings, Wetsli o Artecco a Ors (Supreme Court of Victoria, 2015/03755, Justice TForrest, 12 - 13 Decentber 20T6), T13 - T4; T17 (furtlier references to the transcript will be abbreviatedin these footnotes as 'T').

SC: 14 JUDGMENTWeIsh v Adecco & ors

and she should not be prejudiced in this application as a consequence of thattardiness.

(d) The prejudice asserted by the defendants is amenorated by:

(i) the nature of the claim being based on an allegation of defective workprocesses established by the defendants;

(11) witnesses Currie, Bird and Boyall are all still available as witnesses to

that worl< process;

(tit) the death of Clarkson is not critical to the defendant;

(Iv) the asserted loss of documents is not critical and, at any event, is a

consequence of poor record keeping on behalf of all three defendants.

(e) The plaintiff acted promptly, and reasonably, once the seriousness of her

condition was appreciated in 2008 and thereafter has followed the advice ofher solicitors and doctors,

Tile first and second defendants were jointly represented and submissions were

made jointly on their behalves. The^ contended that the application ought berefused because:

10

(^)

(b)

(.)

There ITas been inordinate delay.

The reasons proffered for explaining the delay are unsatisfactory.

Relevai\t documents have been lost or destroyed by both the first and seconddefendants.

The Ineruories of witnesses apparently relevant to the second defendant have

faded to nothing (witnesses Bentiett, Gabrielidis and HodgsorL).

Relevant Ready witnesses to various corporate processes camTot now beidentified.

The Sunicrust factory closed in 2007 and no site assessment of the premises,

equipment or processes can be undertaken.

Mr ClarksorL is dead - he was the person to whom the plaintiff alleges she

reported the relevant incident.

(d)

(^)

co

(g)


(h) Debra Bowens131, the person alleged to have trained and supervised theplaintiff, is a poreiTtial witness both as to the work process and the specific2004 incident. She is unable to be located.

(1) The first and second defendants have lost the opportunity to have the plaintiffmedically examined between 2004 and 2012.

co The loss of documents by the third defendant in relation to factory operationsand associated policies and procedures also impacts upon the defence that is

songht to be made by the first and second defendants.

(k) The prejudice to the plaintiff is nittigated by a viable alternative action againsther former solicitors,

The third defendant submitted that the application ought be refused for essentially

SIInilar reasons to tllose advancet{ by the first and second defendants. Sunicrust

subThitted that the delay was a long one and, prima facie, prejudice ought be

interred. It subrnitLed that it was unable to call specific evidence as to the system of

work at the time of the plaintiff's employment, and now cannot prove standard

operating procedures that were in place in January 2004. The third defendant also

maintained that it was precluded from joining issue with the plaintiff as to her

attendance or otherwise at various educational programs provided by Sumcrust for

the plaintiff, Witnesses cannot remember the plaintiff ever requesting assistance,

being trained appropriateIy (or otherwise) or receiving safety instructions. In short,

Sunicrust argLied that there is specific prejudice that is incurable and all defendants

are unable to have a fair trial,

11

1.2

^!^

The arguments presented by the parties essentially foctissed on the length of, and

reasons for, the delay, and the extreme degree of prejudice claimed to have been

sustained by the defendants.

13T

SC:

I ITote that the name of this person was also variously spelled 'Deborah Bownds' and 'DeborahBounds'.

JUDGMENTWe Ish v Adecco & ors

16

13

The length of and reasons for delayL32

I regard the length of the delay as substantial, The major incident causing injury

occurred in January 2004. Work injury claims were first served on the first and

second defendants in September 2012 - that is eight years and eight months after the

asserted accrual of the cause of action,

14 The third defendant, Suriicrust, t}rrough Self-Insured Services Australia (acting as

claims agent for both Goodman Fielder and Burns Philip) was on notice of the

plaintiff's lower back injury from I July 2009. '33 \Amilst this date is within the

linttatiort period, the fact is that the plaintiff did not submit a serious injury

application under s 134AB against any defendant until 16 October 2014 - ten and

three-quarter years after the incident, Prior to that, the only lower back-related

proceedings on foot \-\rere for statutor)! entitlements tinder the workers'

Compensation regime set out in the Accident Coinj?ens, Ifion Act 1985 (Vic).

I accept the plaintiff's evidence that up until 2008 she had Do understanding of the

extent of her lower back injury. I also accept that her lower back symptoms

persisted from 2004 at a relatively low level and she was distracted by other work-

related injuries, and by her marriage breakdown, In December 2008 those lower

back symptoms dramatically deteriorated. Mr MCMahon, neurosurgeort, performed

a lumbar laininectomy in December 2008, On 23 April 2009, Mr Monti conterred

with both the plaintiff and her then solicitor, Mr Bjarne of the firm Belbridoe Hague.

As I have indicated, the plaintiff's current solicitor produced the file note of this

conterence on the morning of the second day of the hearing of this application. 134 It

is apparent that TVli' Monti stressed the need to pursue serious injury applications for

the plaintiff's injuries, including her back, at 'the earliest possible time'. At that time,

five and one-quarter years had elapsed from the asserted occurrence of the back

Injury.

15

16

132

133

134

It is difficult to understand events after 23 April 2009,

Limitntion of Art, bus Art 1958 (Vic) s 23A(3)(a).Worker's injury claim form received I July 2009.I accept without reservation that counsel for the plaintiff were unaware of the existence of this filenote on day one of the hearing.

SC: 17

I accept the plaintiff's

JUDGMENTWeIsh v Adecco & ors

evidence that from April 2009 she placed her legal affairs, including compensation

for her lower back injury, in Mr Blunte's hands. She agreed that she wished Itin to

take WITatever steps were necessary in order to pursue compensation for her

injuries. 135 I am not satisfied that in 2009 the plaintiff had any real understanding of

the mechanics of her \, attous claims for compensation, however TATell they may have

been explained to her, A perusal of the chronology demonstrates that months and

years went by without the coriumon law aspect of the claim receiving much attention

from the plaintiff's solicitors.

17 In cross-examination, the plaintiff accepted that she knew the identity of Adecco as

her employer and was, in fact, provided with group certificates by them. 136

18 What seeins to have occurred after April 2009 was a graduated approach to the

pursuit of compensation. Senior Counsel for the plaintiff on this application

described it as 'a linear approach', In March 2011 (seven years and two months after

the causal incident), the plaintiff's solicitors commenced proceedings in the County

Court for statutory entitlements. Judgment in those proceedings was ITai\ded down

on 26 May 2014. The plaintiff had moved solicitors from Belbridge Hague to her

current solicitors, Todd Legal, at about this time, and, as I have observed, a serious

injury application was finally subrnttted on 16 October 201.4. For my part, I can see

no good reason why the pursuit of the serious injury application was deferred until

after the stattitory entitlements hearing had concluded.

19 A good deal of time was spent during this ITearing emphasising the difficulties that

coltronted the plaintiff's initial solicitors in ascertaining the identities of the

defendants. I do not propose to recite those difficulties in full. I accept that the

plaintiff instructed her solicitors that she had been employed by Burns Philip

(Sunicrust) until September . 2012, when in the course of giving evidence in a

statutory claims proceeding she accepted that she had in fact been employed by

labour hire companies engaged by Burns Flitlip (including Adecco and Ready) at the

135

136

SC:

T92.

T47

18 JUDGMENTWeIsh v Adecco & ors

relevant times. Given these apparent labour hire arrangements, I consider there is

understandable scope for COLTfusioi, . on the plaintiff's part. However, in my view,

reasonable diligence could have certainly uncovered Adecco's identity as the

plaintiffs employer within the limitation period, and had proceedings been initiated

in a timely, manner, this error may well have been revealed much earlier than it was.

Sumcrust's identity was rLo great mystery, although I accept that its complex

corporate structure may have caused the plaintiff's solicitors some difficulty. In my

view, none of this provides any real explanation as to why the plaintiff's common

law claim was allowed to drift along until the lodgement of the serious injury

application more than a decade after the causal event.

The 'linear approach' is ITot an explanation for this inertia. Tiine was on the Inarch

when Mr Monti conterred with the plaintiff and her then-solicitors in April 2009.

His advice was emphatic, and it appears to have been ignored,

TITis inertia was in no way the plaintiff's fault. As I have observed, she instructed

her then-solicitor to proceed well within time. Having observed ITer ii\ the witness

box, I do not consider her to be a sophisticated or worldly person, and I am

contortably satisfied that her solicitors would not have found her to be a demanding

client. In my view, it was both reasonable and desirable that the plaintiff left the

broad pursuit of cornpensatioiT to her solicitors, whose task it was to identify the

appropriate avenues to compensation and the proposed defendants to the chosen

litigation. I consider that it would be unjust to visit the apparent tardiness of the

plaintiffs solicitors upon ITer. It follows that I consider. that the plaintiff acted

reasonably in delaying consulting her solicitors specifically about her back pain until

it became a serious concern. Having undergone surgery, she instructed her solicitors

to prosecute her claim well within time, yet they did not.

Whilst I am not prepared to impute her former solicitors' apparent negligence to the

plaintiff, the fact that there appears to be all action in negligence against those

20

21

22

23


solicitors is a factor that may be relevant to the exercise of my discretion. 137 It is not

determinative, and I am careful not to over weigh it. I have not heard from the

former solicitors (who are not a party to this action) and accept that any potential

action of this nature is complex: the plaintiff would be required to prove negligence

against both her former solicitors and against one or more of the defendants to the

original action. I have also been careful not to penalise the plaintiff for my

considerable annoyance at the manner and lateness of production of the 23 April2009 file note.

24

Prejlldicet38

I have observed earlier in these reasons that the plaintiff's claim for practical

purposes is a one-incident claim said to have arisen from the heavy nature of the

plaintiff's work, and to have occurred in about January 2004, It is against this

background that the prejudice to each defendant must be considered.

25

First defendant (Adecco)

I accept that relevant Adecco documents

defendant. These documents include:

(a) an induction CD-ROM;

(b) a manual handling video;

(c) the Adecco safety book for 2004; 139

(d)

(e)

training and induction records for the plaintiff;

Thintites of meetings with the third defendant;

co

are ito

any record of the plaintiff s report to Ivlr Clarkson of the 2004 incident or of

complaints of lower back pain; and

737

138

139

longer available to the first

Tsindrs (2001) 4 VR 114,115-6121 (Ormistonj), T21 1271 (BushananjA).Lii?11th froit of Actions Act 1958 (Vic) s 23A(3)(b).Affidavit of Christopher John Singleton sworn18 November 2016, t41

20SC: JUDGMENTWe Ish v Adecco & ors

(g)

It is impossible to identify the precise impact the loss of these documents will have

on the Adecco's capacity to defend the allegations Inade against it. Those allegations

include failures to provide safe systems of work, a safe workplace, adequate

assistance, adequate instruction and stipervision, adequate monitoring at the

Sunicrust premises and a failure to ITeed the plaintiff's complaints of pain. 141

relevant written policies and procedures current in 2004.140

26 Notwithstanding that the precise impact of the missing documents cannot be

identified, I consider that the combined effect of the missing documentation must be

substantial, Adecco has lost the opportunity to demonstrate by reference to

contemporaneotis documentation the fact of, and manner of, the plaintiff's

workplace induction and its (Adecco's) interactioi\ witl\ the host Qinployer

(Sunkrust). Adecco is left to defend itself with bare denials and the faded

recollections of those witnesses who can be found.

27 On the plaintiff's case, no incident report was filed and thus no prejudice can arise

from its absence.

28 The plaintiff contended that the document-keeping of all three defendants was less

than ideal and that the destruction or loss of relevant documents either was not the

plaintiff's fault or, alternatively, tlTat consideration of prejudice caused by that loss

ought be amenorated by the defendants' conduct. This conduct, in the case of

Adecco, was said to include the vague answers provided by ' an Adecco

representative to its own solicitors upon enquiry about documentation relating to

the plaintiff. Specifically, the first defendant's solicitors were advised that:

it was unlikely that client files had been sent to the First Defendant's offsiteStorage system however there was 1.0 way to corffirm whether or not thishad occurred. ... ITjhere was no system to differentiate the documents thatwere in offsite storage. tThe representativeI believed that documentationrelating to the Third Defendant would not have been thrown out when theFirst Defendant moved prerriises in August/ October 2008 however it may

140

141

SC:

Affidavit of Cliristopherjohn Singleton sworn 18 November 2016,151~161.Statement of Claim (21 Iuly 2015), rill.

21 IUDGMENTWeish v Adecco & ors

not have been kept. 142

Writlst it may be that Adecco's document keeping was less than ideal over the many

years that have passed since January 2004, the plaintiff has failed to demonstrate that

the loss of these documents has not occasioned prejudice to the first defendant. I

also consider' that where a clanrL is allowed to drift along unissued and out of tiine

for years, complaints about opposing parties' document keeping practices ring

somewhat hollow, I am satisfied that the first defendant has suffered sigriificant

prejudice from the loss or destruction of the relevant documents.

29

30

Witnesses

The first defendant has established by evidence the following:

(a) Altson ITvirLg worked for the first defendant at Sumcrust until April2003. She

cannot recall the plaintiff, Greg Boyall, Rob Currie or Debra Bowens. She has

no recollection of occupational health and safety matters at Sunicrust. She

could speak to the usual induction process in 2003.143

(b) Meltssa Mitchell (Quick) worked for Adecco from April2003 until some time

in 2005. She cannot recall Greg Boyall, Rob CLIrrie, Mark Clarkson or Debra

Bowens, She can vaguely recall the plaintiff and the duties performed by her

at the bakery. She can speak to the then-usual practice of the induction

process and how new workers were contracted. 144

(c) Fellcity Aitchison worked for Adecco from October 2003 until 201.1. She can

recall general practice regarding new won< contracts and the Adecco

induction process. 145

(d) MIChael Lane was the relevant branch manager of Adecco between 2002 and

April 2003. He could recall generally Adecco's policies and procedures. He

cannot recall the division of the responsibilities between Adecco and

T42

143

141

145

Affidavit of Marton Morton sworn 41uly 2015,1371.Ibid, 133(^)l.Ibid, 133(b)l.Ibid, 133(c)l.

SC: 22 JUDGMENTWetsh v Adecco & ors

Sunicrust or specifics of operations at STILTicrust. 146

I consider that the defendant's evidence demonstrates that it will suffer prejudice by

these faded recollections. The plaintiff has failed to demonstrate that this is not the

case. I am unable to assess the nature and extent of the prejudice suffered, as to do so

would require me to have an understanding of the witnesses' fresh recollections for

the purpose of comparison. Obviously enough this is impossible. All that can be said

is that the first defendant has lost the opportunity to call evidence unimpaired by

time related memory loss.

31

32

.

Second defendant Read

It may be that the second defendant has suffered no real prejudice. This will be so if

the plaintiff's case truly is a 'one incident' or 'one injury' claim. If it is, it is relevant

that the second defendant did not become the plaintiff's employer until December

2004, about 1.1 months after the accrual of the cause of action: thus, it would

inevitably succeed at trial regardless of what evidence had been lost over the years'

On the other hand, if the plaintiff's clanTL is as originally pleaded, and her

employment with Ready between December 2004 and 30 June 2005 is alleged to be a

cause of the injury, then the prejudice to the second defendant is essentially the same

as that to the first defendant.

33

34 I am satisfied on affidavit evidence filed on behalf of the second defendant that risk

assessments conducted by it relating to the bakery have been lost or destroyed, as

have the training and induction records relating to the plaintiff, tl\e plaintiff's

personnel files, health questionnaires and time sheets. I am also satisfied that certain

documents relating to Ready's interaction with Sunicrust have been lost, including

minutes of meetings with them. 147

Louise Bermett, Nick Cabrielidis and Lauren Hodgson are longstanding employees

of Ready, and all worl<ed at the relevant branch office at the relevant times. None

35

146

147

SC:

Ibid, 134(b)l.Affidavit of Tenjue v. n Ahlefeldt sworn 25 A^"gust 2016, t71.

23 JUDGMENTWe Ish v Adecco & ors

have any recall of the plaintiff or details of Ready's account with Sunicrust. 148 I also

accept that Ready is now unable to identify the person responsible for conducting

risk assessments on behalf of Ready at the Sunicrust bakery. 149 Like Adecco, Ready

has lost the opportunity to call evidence unimpaired by loss of memory t}Irough

passage of time,

This indicates prejudice to Ready and the plaintiff has failed to demonstrate that

these losses (of both documents and recollections) do not have that prejudicial effect,

36

37

Further re'Ltdice to both first and second defendants

The Stintcrttst factory closed in 2007. The premises, equipment and processes are no

longer available for inspection. In my view, all three defendants can fairly claim

prejudice arising from the closure of the Sunicrust factory, the disposal of its

equipment, and the loss of documents relating to the factory operations and

procedures, I consider this prejudice significant. The plaintiff's case is about the

Suitcrust equipment, operations and procedures. The plaintiff has failed to establish

that no prejudice arises from these factors.

Additionally, I accept that Debra Bowens, the person alleged by the plaintiff to have

trained and supervised her, is unable to be located at this stage 150 although this may

change.

Mark Clarkson, the person to whom the plaintiff alleges she reported her back

injury, died in October 2005. While it is tempting to conclude that Mr Clarkson

would not have made it to Court even if the plaintiff had issued ITer claim within

time, this approach is contrary to principle. The prejudice to the defendant must be

assessed from the time of the accr{Ial of the cause of action up until the making of the

application for an exteirsion of time. 151 Measured in this way, I consider that the loss

of Mr Clarkson as a witness is prejudicial to the defendants, who have lost the

38

39

148

149

150

151

Ibid, 131, t81; see also, Affidavit of Wayne Joseph Morphett sworn 26 Aug""st 2016, t91.Affid^vit of Tenjue von Ahl^foldt sworn 25 Aug, st 2016, t91.Ibid, 191,Demi 120091 VsC 151, 1221.


chance to contradict or qualify the plaintiffs account as to her report of the back

Injury.

Third defendant Sunicrust

40

Documents

Sumcrust is able to call limited general evidence of systems of work and the safety of

its plant and equipment as they existed in early 2004. I accept that specific evidence

of the plaintiff's daily work tasks is now not available. I also accept that, due to the

effluxion of time, Sunicrust cannot prove that the plaintiff attended the 'MOVE'

manual handling training program15' or the TALK/Toolbox Meetings153 arranged bySunicrust.

41 I accept that Sunicrust cannot now determine who owned the relevant work

equipment or dollys, "' and cannot now locate training and instruction documents,

manual handling risk assessments, standard operating procedures, systems of work

documents and documents related to the plaintiff's training and supervision. 155

As in the case of Adecco, I do not accept the plaintiff's contention that any prejudice

caused by the destruction of these documents was Sunicrust's fault and that I ought

conclude that the plaintiff should not be fixed witl\ the consequences of a sloppy

document destruction policy. WITile it is true that SUITicrust were on notice that the

plaintiff had sustained a back injury from about the middle of 2009,156 the claim

ambled along for five years before coriumon law proceedings were pursued. I ITave

observed that the plaintiff ought not be visited with the consequences of her

practitioners' negligence, however it is quite another thing for the plaintiff to

42

152 Workers at the Sunicrust premises took part in a manual handling program caned 'MOVE' which wasfacilitated by a physiotherapist. The facilitator demonstrated correct methods of manual handting andcorrect techniques for safely lifting objects (see Affidavit of Greg Boyall sworn 29 November 2016,t20n'TALK meetings, also called Toolbox meetings, were weekly discussions of any safety or other issuesthat 11ad occurred at the Sumcrust workplace. They were attended by eveiyone, including theworkers (see Affidavit of Robert Dale CUTrie affirmed 24 November 2015, [13]).Affidavit of Natasha Sung sworn 30 October 2016,146.21,146.31.Ibid, 136.51.See chronology entries from 12 June 2009 onward.

25

153

154

155

156


establish that Sunicrust ought not be able to rely on prejudice to which it (Sunicrust)

may I\ave contributed. In my view, the primary cause of the destruction of the

Sumcrust documents, and thus the prejudice sustained, is the fact that the

proceedings were instituted eight years out of time. The plaintiff has failed to

establish either that no prejudice to Sumcrust arises from these factors, or that if

prejudice does arise I should ignore it because it arises as a fault of Sumcrust itself.

43 I further accept that reasonable searches have been made to ascertain whether these

documents exist. On the available evidence, I conclude that it is likely that they have

been destroyed. I also conclude that it would have been urueasonable to expectSumcrust or Goodman Fielder to conduct further searches, 157

44

Witnesses

CTeg Boyall was employed by Sumcrust during the relevant period. He states that

the plaintiff would have received induction, but that he cannot remember the details

of it. He said that the plaintiff would have received staff-specific training, montltly

walks around the premises and MOVE manual handling training, although he

canITot now recall the frequency or dates of tlTese training sessions. Mr Boyall states

that the premises operated o1\ standard operating procedures. 158

Rodney Bird remains employed by Sunicrtist. He cannot recall the plaintiff suffering

or reporting a back injury. 159 Generally, he recalls that both labour hire companies

(Adecco and Ready) had their own induction and safety processes160 and he could

not recall if casual staff were taken through the Sunicrust induction. 161

45

46 Martin Lampitt remains employed by the third defendant, He recalls the plaintiff,

and says she would have received an induction with Sunicrust, together with on-the-

157 8,000 potentially relevant document boxes were destroyed three years ago. A further 1,201 have beendestroyed between 2011 and 2015. 1,488 remain, but with no description of their contents, and thecost to retrieve these boxes alone would be $28,272 before lawyer searches are conducted of thecontents of those boxes. See affidavit of Natasha Sung dated 30 October 2016,146.61, t46.81. See alsoaffidavit of Natasha Sung dated 30 November 2016,1731.Affidavit of Natasha Sung dated 30 October 2016,132.11, 132.21, [32.31,132.4] and 132.51Affidavit of Rodney Bird dated 29 November 2016.Ibid, t121.Ibid, t151.

158

159

160

161


job and task-specific training. He believes that there were, in 2004, both standard

operating procedures and training manuals. He is unsure as to whether they havebeen retained. 162

47 Sunicrust has lost the opportunity to call this evidence unimpaired by time-related

memory loss. The plaintiffs ITave not demonstrated that this is not prejudicial to

Sumcrust.

48

Conclusion on re'udice

I consider that all defendants have been very substantially prejudiced by the lengthy

delay in the prosecution of this claim, UnsurprisingIy, witnesses' recollections have

faded, and if they have recall at all, it is only of the general practices at the time. By

and large the witnesses speak to what would have occurred, rather than what did

49

occur,

I consider that if proceedings had been is SIIed within the limitation period it is

considerably more likely that documents would have been found that were directly

relevant to the plaintiffs allegations, The effluxion of time ITas denied all defendants

the chance of relying on these documents in order to refute the allegations that are

made against them.

I also consider that the closure of the Sunicrtist factory and the disposal of the

equipment, including the dollies, is a significant prejudice. If the factory were still

operating, and the work processes unchanged and the equipment (including the

dollies) still available for. inspection, then much of tl\e prejudice claimed by all

defendants Thight have been overcome. This, however, is not the case.

50

Extent to which the defendants had taken steps to make available to the plaintiffmeans of ascertaining relevant facts163

Irisofar as this issue relates to document retention policies, I have dealt with it in my

analysis of the prejudice alleged by each of the three defendants. While I accept there

51

162

163

SC:

Affidavit of Nat^sha Sung dated 30 October 2016,1331-t391.mulattoi, of Actions Act 1958 (Vic) s 23A(3)(c).


may be some force in the plaintiff's criticism of the defendants' document retei\tion

policies, the significant delay in lodging the plaintiff's claim is likewise to blame for

the disappearance of what Thight have been relevant materials. There is nothing to

suggest that any of the tl!Tee defendants has been obstructive in attempts to recover

relevant documents,

52 The third defendant has a complex corporate structure. I accept that this may have

made the task of the plaintiff's former solicitors more difficult. However, as I have

observed, earlier I do not accept that these difficulties were irisurmour!table or

anywhere near such an obstacle. The plaintiff knew she was working at the

Sunicrust factory making Sunicrust bread. TITis is not a case where a defendant,

through its conduct, has either disappeared into the ether or taken any positive steps

to disguise the correct entity for service.

53 Sinxilarly, I accept that employment via a labour hire company may have caused

some contusion for the plaintiff, and jintially for her solicitors, However, there is

little that either the first or second defendant could have done to assist the plaintiff

in the initial enquiries, as they were not served with statutory claim forms (and by

interence Trot notified of any potential for a common law action) until September2012.164

54

Disability suffered by the plaintiffL65

There is no suggestion that any disability suffered by the plaintiff after January 2004

impacted upon her capacity to, or decision to, pursIle compensation proceedings.

55

S^, tion^ 23A(3) (^) and (f)

I have dealt wit}\ the promptness and reasonableness of the plaintiffs acts in

paragraph t221 of these reasons, including in seeking legal advice, In December

2008, she became aware that her back injury was significant. Thereafter, in my view,

she acted reasonably and promptly. Her then~solicitor did not. I also accept that she

t64

165

SC:

Amdayit of Kim T, dd of 6 May 2016, t1001-t10/1.Limitntio, I of Actions Act 1958 (Vic) s 23A(3)(d)


sought legal and medical advice in a prompt, timely and reasonable fashion.

56

Conclusion

Synthesising these competing factors as best I can, I am not prepared to grant this

application. The plaintiff, I have found, acted reasonably and promptly from the

time that her back injury deteriorated dramatically in December 2008. I accept that

before that time there were Thinimal symptoms and it would have been speculative

to pursue a colornon law claim in negligence. By April 2009, the plaintiff had

undergone serious lower back surgery and ITad placed her compensation affairs

(including for her back) in the hands of her then-solicitor. I doubt that she collld

have done much more. Writlst I am not prepared to impute to the plaintiff the

apparent tardiness of her solicitors, in my view no defendant can now, in 2017,

achieve a fair trial. I consider that it would not be just and reasonable to extend the

limitation period.

I have reached this conclusion without regard to my view that, prima facie, the

plaintiff would appear to have a viable cause of action against her former solicitors.

The prejudice occasioned to the plaintiff by the rejectioi\ of this application may be

amenorated to some degree by this.

The application is refused.

57

58

SC: 29 JUDGMENTWeish v Adecco & ors