Written by Peter CarterAugust 6, 2015
Retail giant Coles has failed in an appeal bid to overrule an extension that allows a worker’s injury compensation claim dating from 2005, to proceed to trial.
Deborah Costin injured her left knee in July 2005 when lifting two 16kg boxes of apples over and on to a pallet in a confined space in the produce section of her Bi-Lo supermarket.
She underwent treatment and surgery to her back but until 2009 believed that she would eventually return to work.
In September 2009 when that outcome no longer seemed likely, she consulted lawyers who issued an urgent notice of claim for damages.
In response to the eventual application for extension of time lodged in September 2014, Coles conceded that a material fact of a decisive character relating to her right of action was not within her means of knowledge before June 2009.
After the court ruled in her favour, Coles appealed, arguing the extension of time should have been refused and the discretion exercised in its favour because of the significant prejudice it will suffer from a delayed trial.
Her claim in part pleads inadequate training in manual handling techniques. It also pleads breach of a duty by exposing her to risks of injury; and by failing to ensure her place of work was reasonably safe.
Coles claimed an “impaired capacity” to call evidence about the nature and quality of instruction and in particular that the only evidence available from supervisors was “very general evidence of their habit in giving instructions about manual handling”.
In answer to that argument, Ms Costin contended that even had the claim been bought within the limitation period, it was extremely unlikely that any witness would have any independent recollection of “the detail of training and instruction provided”.
That position was rejected by the appeal judges.
“One does not compare the prejudice likely at the time of the application to that which would have existed had the proceedings been commenced within time,” ruled Justice Peter Applegarth. “The relevant consideration is whether a fair trial is no longer possible or is unlikely because of the delay”.
While Ms Costin was free to assert that she had been provided no specific training about how to stack produce on the pallets, “Coles and its witnesses are unable to respond to this kind of allocation because the passage of time means they have no reliable recollection of what they instructed about that matter”.
The court accepted that there was a material prejudice at least in respect of defending that part of the claim.
It thus overruled the lower court decision but only to the extent of the claim in respect of inadequate training. The limitation extension in respect of unsafe premises and unsafe system of work, was upheld.