Clarke v Spotless Catering Services Ltd [1994] QSC 127

) ) State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CHAMBERS DOWSETT J No 1346 of 1992 JULIE CLARKE and SPOTLESS CATERING SERVICES LIMITED CARRYING ON BUSINESS AS QUEENSLAND CATERING CO BRISBANE .. DATE 14/01/94 ORDER r REVISED COPIES ISSUED l~ State Reporting Bureau Date { I { I i ~--------~~+----· Plaintiff Defendant 4th J10lJT, Jllc Lan·_Courts, Ge()T~C Strt•t•t, Brisbane.• 0. 4000 T£'/t•nhone: ((}7J 217 4.1MJ. J.!lt'drnilw m7l ??7 .-n., -- 1 of 8 -- 140194 HIS HONOUR: The plaintiff was injured at her employment, as it is alleged, early in May of 1988. At that time she was subjected to X-rays but cleared for return to work within a matter of eight days after the injury. The X-rays showed no appreciable damage. In May of 1990, she again was injured in the course of her employment and consulted a Dr Roberts. According to her, in July and August of 1991 she commenced to experience quite 10 severe lower back pain, and on 12 September 1991, after a 20 minor slip at work, she saw Dr Roberts again. Following examination and CT scans, a mild lumbar disc protrusion was diagnosed, and there is at least an opinion offered by medical practitioners that it was caused by the 30 incident which occurred in May of 1988. I must say that having regard to what I perceive to be an absence of frankness in some of the material placed before the Court by the plaintiff, I have some doubts as to whether the 40 medical opinions will be substantiated at trial, but I am willing for present purposes to conclude that there is a cause of action demonstrated and that in the event that it is successful, the plaintiff will recover sufficient damages to justify bringing the action. Desp~te some submissions to the contrary on behalf of the defendant, I conclude for present purposes that the point at which she was advised of the state of her back and the 2 ORDER 50 60 -- 2 of 8 -- ) ) ------------------··----···--··--____j 140194 probability of that state incident in 1 988 was some September 1991. being causally related to the time after, but just after, 9 By that time, of course, she was Statute-barred in so far as concerns the incident of 1 May 1988; which she says was caused by the negligence of her employer, the present defendant. An action was commenced by writ issued on 9 September 1992, without leave having been obtained pursuant to the Limitation of Actions Act. This is an application for leave pursuant to the Act to validate the issue of that writ. The writ has not been served and is now stale, so it is also an application to renew the writ. The plaintiff's case is that in May of 1988, whilst employed as a kitchen hand and in the course of her duties, she slipped in water on the floor of the kitchen and suffered the injury which she says is the cause of all of her present complaints. I am willing to infer that such a circumstance would be a proper basis for inferring negligence against the defendant. She has also asserted that the floor was slippery and that it was stripped and cleaned some time after her accident using a 10 20 30 40 steel brush. She has also asserted that there was a dish 50 washer at the premises which leaked. It may have been the source of the water in which she slipped. These quite specific allegations will no doubt be ventilated in some detail at the trial. 60 3 ORDER -- 3 of 8 -- 140194 This raises the question of how the defendant should be expected to respond to them at this stage. Th~ defendant has contacted one previous employee at the time, the chef, whose name is Hansen. Surprisingly, perhaps, he has some recollection of the incident. The defendant has not been able to contact another kitchen assistant employed at the time, nor has it been able to identify that employee, because at some time since the incident in question, employment records for the period have been destroyed. The plaintiff seeks to respond to this absence of a witness by D 10 ( 20 saying that; in any event, such person had left the premises ( at the time of the accident, and so was not a witness. In an earlier affidavit sworn in these proceedings, however, the plaintiff suggested that the other employees present at the 30 time were the chef and this kitchen assistant. No doubt the explanation will be that such assertion was meant only to refer to persons who were on the shift, rather than persons who were physically present at the time of the accident. Be ( that as it may, the defendant has demonstrated a substantial 40 ( source of prejudice in being unable to identify the other kitchen assistant. The plaintiff has responded to this matter in three ways: firstly, as I have said, she says that the kitchen assistant 50 was not present anyway. That is obviously a matter which the defendant would be entitled to investigate. The apparent discrepancy between the allegation in her first affidavit, that this employee was present, and her allegation in the 60 4 ORDER -- 4 of 8 -- \ / ----~------ ---- - -----~~---------- ---1 140194 second affidavit, that he was not, is itself sufficient to cause suspicion and to evoke a desire to investigate further. Secondly, she says that other witnesses are available as to 10 the state of the kitchen, including the chef, and possibly people who worked in the kitchen on other days but were not working at the time of the accident. This is true, no doubt, but the kitchen assistant does seem to have been, with the chef and the plaintiff, in a position of peculiar 20 relevance to the circumstances, and it is difficult to \ conclude other than that the defendant would feel veryI considerably disadvantaged by an inability to obtain an account from him of the conditions on the day in question. 30 Thirdly, it is argued that the defendant has not really explained the destruction of the records in such a way as to demonstrate that such destruction occurred as a result of the plaintiff's delay in bringing these proceedings. It is true that one cannot say from the affidavit material when the 40 destruction occurred; however clearly, it occurred at some time since the accident, and it would be unlikely to have occurred shortly thereafter. One's experience dictates that office records are generally 50 kept for at least a period of years, rather than a period of months. There is no suggestion that the destruction was accidental, and I would infer that it was in the course of business. 60 5 ORDER -- 5 of 8 -- r 140194 It is true that it is not strictly possible to say whether the. destruction occurred prior to the issue of the writ or subsequent thereto. If these two appli6ations were to be determined in isolation, one from the other, it is, I suppose, possible that the defendant might be excluded from reliance upon the destruction of the records on the application for an extension of time to sue upon the basis that it could not show, on the balance of probabilities, that destruction had occurred prior t6 the issue of the writ, and the application to extend time for service might also fail because it could not be shown on the balance of probabilities that the destruction had occurred after the issue of the writ. However, it seems to me that it would be quite artificial to 10 20 consider the two applications in this way. The point is that 30 at some time in the course of the last five and a half years or more, the records were destroyed. There seems to me to be sufficient cause to say that the position in which the defendant finds itself, that is, the inability to identify the kitchen hand, has probably been caused by the delay of the plaintiff. That prejudice is, as have said, by no means inconsequential. There is a further aspect of the plaintiff's delay in this matter that calls for comment. Although the writ was issued in September of 1992, absolutely no notice of its existence was given to either the defendant or to the defendant's insurer until November of 1993. Initially, the plaintiff's I 6 ORDER 40 50 60 () ( ( ( -- 6 of 8 -- 140194 solicitor decided not to serve the writ until more information was to hand in support of the application under the Limitation Act, which was recognised as being necessary. Thereafter, it seems that the solicitor simply forgot that he had not served the writ. I have previously observed that I consider it to be an inappropriate practice to issue a writ with the intention of not serving it. It seems to me that a solicitor who issues a 10 writ is obliged to effect service as soon as reasonably 2o practicable. It cannot be in the interests of litigation that the Court permit the issue of writs with the expectation that on some occasions, no attempt will be made to serve them for quite considerable periods of time thereafter. On the other hand, mere inadvertence may well be an explanation which, in 30 the absence of prejudice, would be sufficient to justify an extension of time for service of the writ pursuant to Order 9. In the present case, however, because of the issue of prejudice to which I have referred, I consider that I should 4 0 not extend time for service of the writ. Delay since the issue of the writ must be seen in the context of earlier delay, and there can be no doubt in the present case that such delay has caused prejudice to the defendant. In those circumstances, there is, in any event, no point in considering the extension of time pursuant to the Limitation of Actions legislation. In those circumstances, both applications will be refused, with costs. 7 ORDER 50 60 -- 7 of 8 -- 140194 HIS HONOUR: As to the reserved costs, it would appear that when the plaintiff eventually got around to telling the defendant that she had a claim against it; that is, 11 November last year, a period of some 13 days was allowed until the hearing date nominated, 24 November. Of course, the defendant had to refer the matter to the Workers' Compensation Board statutory insurer, and appropriate instructions had then to be taken and affidavit material prepared. 10 ( 20 Whilst I think that it was proper in the circumstances for the ( plaintiff's solicitor to allow a substantial period of time after service, as he in fact did, it would seem that, in the circumstances, it proved not to be quite long enough. I do not think that the reserved costs of that occasion should be disposed of in any way based upon punitive considerations. It seems to me that the hearing date was abandoned because of 30 the normal contingencies of litigation. Inadequate time, as •o ( it happened, had been allowed and, in those circumstances, the costs of that hearing should simply be treated as being inevitably incurred in the prosecution of these procSedings. I therefore include in the order for costs that I have made the reserved costs of 24 November. 50 60 8 ORDER -- 8 of 8 --