mar93O21

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No. 455 of 1989

BETWEEN:
DAVID DEREK VERSCHUUREN
Plaintiff

AND:

TOM'S TYRES CORPORATION LTD
Defendant

CORAM:	MARTIN CJ.

REASONS FOR JUDGMENT
(Delivered 19 August 1993)

The question now to be resolved in these proceedings is whether the plaintiff is entitled to an extension of time pursuant to s44 of the Limitations Act. It is not necessary to go into the backgrourtd as it sufficiently appears from my reasons for judgmept of
15 November 1991 and the decision of the Court of Appeal delivered on 22 October 1992, (1993) 86 NTR 1.

The essential facts as found by me previously are
that:

13 December 1984	The plaintiff suffered an injury whilst

employed by the defendant at his place

	of employment.	Managers of the employer	
	immediately attended to him, taking him	
	for medical treatment.	

5 March 1985		
The defendant gave a report of the	
		injury suffered by the plaintiff to its
wo kers compensation insurer.	

13 November	
1985	
The Director General of Social Security	
		gave notice to that insurer that he may	
		wish to recover from the insurer	
		sickness benefits paid to the plaintiff.	

29 November	
1988	
Between the date of the injury and this	
date the plaintiff worked for.a number of employers and there is evidence that he suffered some pain and discomfort in his back at various times.	On this day
he was informed by Dr Watson that he was
of the opinion that the .p.laintiff had symptoms of lumbar disc disruptions,
I
probable protrusion and low· grade root pressure and that the primary cause of that condition was the trauma to his lumbar spine suffered in the accident which the plaintiff had informed him occurred on 13 December 1984.

19 July 1989	The writ was filed, that is, within
twelve months after receiving the information from Dr Watson.

Notwithstanding that the plaintiff's application had been heard and determined at first instance and on appeal, there was no objection raised to the defendant's affidavits, sworn and	iled just a few days before the matter resumed before me, being relied upon.	Those affidavits disclosed that in January this year, that is, over two months after the Court of Appeal decision, enquiries were made of some of the plaintiff's employers both prior to and after the date of the accident.	What was sought was particu ars of the periods during which the plaintiff was so employed, the nature of his employment, his earnings, copies of records and reasons for his termination of employment.	For a variety of reasons, not the least of them the period that elapsed since the time when the plaintiff was thought to have been employed by those employers and the date of the enquiry, none of the information sought was then available.	For the same reason enquiries made in May 1993 from the doctors who attended the plaintiff immediately after the accident failed to locate any records.

What the defendant argues is that because it was unsuccessful in relation to enquiries not made until 1993, in respect of a cause of action disclosed on a writ served

in August 1989 (and which it had known about since the date of the accident), it will be prejudiced if the extension of time sought by the plaintiff is granted because of that extension of time.

The defendant also relied on the affidavit  evidence of two fellow employees of the plaintiff  at the time of the accident.	_They are still employed by the defendant.	Their affidavits were sworn on 7 June 1993, and it is reasonable to infer that the information contained therein was only derived by the defendant after making enquiries after the decision of the Court of Appeal was known.	The material parts of their respective affidavits are the same.	They both say that they recall sitting around within a few days after the accident when somebody said that the plaintiff had had a sore back prior to the accident.
They were unable to recall whether that was said by the plaintiff himself or one of his friends.	What that evidence was led to demonstrate was that with the lapse of time memories have faded and the defendant will be prejudiced thereby.

The defendant knew at the time of the accident who the doctors were who treated the plaintiff, and it appears from the other evidence that there were a number of other people working for the defendant at the time who knew the plaintiff and who were present at or about the time the accident occurred.

It cannot be doubted that the ascertainment of a medical opinion can amount to the ascertainment of a fact or facts material to the plaintiff's case (Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628).	In this case
the fact is 0relevant	to the issues to be proved if the
plaintiff is to succeed in obtaining an award of damages sufficient to justify the action and is of sufficient importance to be likelY- to have a bearing on the case" (Sola Optical at p636).	The fact is clearly relevant to show that the plaintiff suffered an injury in the accident which was productive of loss.

The plaintiff ascertained the fact on 29 November 1988..	It is immaterial, on this application, that a medical practitioner engaged by the defendant disagrees with the opinion conveyed to the plaintiff by Dr Watson.

It is not as if the defendant had no knowledge of the accident and that the plaintiff suffered injury as a result.	The opportunity to endeavour to protect its position was available then.	The writ was served within 5 years from the date of the accident, well within the period of 7 years upon which one possible employer relied as a justification for destruction of its records.

Such hardship as the defendant may suffer, if the application is granted, will not arise so much from that indulgence, but from its failure to endeavour to protect its

position at an earlier time.	The plaintiff will suffer hardship in losing his cause of action if the application i not granted.	He has demonstrated some loss, the quantum is immaterial at this stage.	If as the defendant contends he has not lost much, then its hardship is commensurably diminished.

The plaintiff, is entitled to an extension of time within which to initiate proceedings pursuant to s44(c) of the Limitation Act.