Limitation Extension: prejudice, but permissible on undertakings to avoid prejudice

Coles Group Limited v Costin [2015] QCA 140

The Court of Appeal held that Coles would be materially prejudiced if the plaintiff could litigated the aspect of her claim relating to inadequate training. However, subject to a suitably worded undertaking to limit the litigation to those areas not affected by the prejudice, leave was allowed.

[42] The point remains, however, that Coles faces largely vague allegations about the respects in which Ms Costin’s training was inadequate. With Ms Costin having been granted an extension of time, Coles is not in a position to call evidence at trial about what she was told by Mr Prescott, Ms Kelman and Ms King in relation to manual handling, save for what may be inferred from the documents about basic training. Those potential witnesses do not have any recollection of the detail of the training and instruction each of them provided to the respondent.

[43] Ms Costin seeks to respond to this prejudice by submitting that reliable evidence of the practice or habit by which instruction was routinely given by these individuals would be received into evidence at the trial. The issue, however, is not whether evidence of habit or practice is admissible. Clearly it is. The difficulty is the inability of Coles’ witnesses to say what specific instructions were given, as a matter of habit, about matters such as weight. The affidavits of Mr Prescott and Ms King and the draft affidavit of Ms Kelman give very general evidence of their habit in giving instructions about manual handling.

[44] Their affidavits do not provide any information about what, if anything, they did to compensate because the video machine was not working or the relevant video was not available. Counsel for Ms Costin points out that their affidavits simply do not address that point, rather than positively assert that they have no recollection about what, if anything, they did to compensate for the video machine not working. However, one might question whether such a witness might be expected to reliably remember so many years after the event what, if anything, was done to compensate.

[45] The evidence of habit, so far as it goes, does not indicate whether Ms Kelman, Mr Prescott or Ms King was in the habit of instructing someone in Ms Costin’s position to not lift boxes above a certain weight. Ms King’s affidavit recalls that “the maximum weight that we could lift at around the time of the incident was approximately 15-18 kilograms”, but does not say that this was part of the instructions which she routinely gave in the course of giving instruction in the manual handling of fresh produce. Insofar as that process is reflected in the Job Safe Practice for manual handling of fresh produce that applied in July 2005, that document did not refer to any specific weights or a maximum weight that could be lifted. Even if it be assumed on the basis of Ms King’s affidavit that she was in the habit of giving instructions about the maximum weight that could be lifted, her evidence would be no more than evidence of habit. She would be unable to realistically contest the suggestion that she may have omitted to refer to such a weight, contrary to her habit, when she instructed Ms Costin.

[46] Ms Costin is able to assert that no specific training was given about the stacking of produce on the pallet. Coles and its witnesses are unable to respond to this kind of allegation because the passage of time means they have no reliable recollection of what they instructed Ms Costin about that matter or about anything else. Their evidence is of a general kind, based upon an assumption that Ms Costin would have been given the same instruction as anyone else in accordance with the usual procedure for instructing individuals about manual handling and observing their performance.

[47] Whilst the completed Task Observation Records, in conjunction with the relevant Job Safe Practice document, make it “fairly clear” that Ms Costin was given at least some basic training in manual handling, including manual handling of produce, this documentary evidence does not disclose the detail of the oral instruction given by way of basic training or what additional instruction, if any, was given.

[48] Ms Costin’s written submissions note that it is extremely unlikely that any witness could have an independent recollection of the detail of the training and instruction provided to her soon after it had occurred. But this is not to the point. As the primary judge correctly observed, the relevant consideration is whether a fair trial is no longer possible or is unlikely, because of the delay, rather than whether there is any significant difference in the position of the respondent as a result of the proceeding not having been commenced within the limitation period. One does not compare the prejudice likely at the time of the application to that which would have existed had the proceeding been commenced within time.[8] Accordingly, it is no answer to the appeal that Coles’ witnesses were likely to have forgotten the detail of their instruction to Ms Costin within a period of weeks or months after giving it. Coles may have been prejudiced in that regard if Ms Costin had commenced a proceeding within the limitation period. The issue, however, is whether Coles is prejudiced by a lack of recollection in circumstances in which a proceeding was not commenced within the limitation period.

[49] I conclude that Coles would be materially prejudiced if Ms Costin was permitted to litigate that part of her claim which related to inadequate training.

[50] The principal issue is, then, whether the primary judge ought to have found a fair trial could not be had because of that prejudice. The relevant prejudice related to only one aspect of Ms Costin’s previewed claim against Coles for breach of contract and breach of duty as her employer. That aspect assumes importance because it was the focus of Coles’ argument about prejudice and why the discretion to extend time should not be exercised in Ms Costin’s favour.

[51] To grant an extension of time without imposing conditions on Ms Costin being able to litigate that part of her claim which related to inadequate training risked an unfair trial. Ms Costin could swear that she was not given instruction on a point of detail. A trial judge might have some scepticism about whether she would recall such a point of detail so many years after the event. But there would be no competing evidence since none of the witnesses who Coles might call would be able to contradict her on that point of detail. The possible reception of evidence of habit from witnesses about their training routine does not meet the point about prejudice raised by Coles to the effect that witnesses who might be called by it to give evidence did not have any recollection of the detail of the training and instruction provided. Evidence of habit would simply be that, and the evidence of habit apparently available to Coles’ was not evidence of habit in respect of matters of detail.

[52] A finding of material prejudice by the primary judge on the issue of instruction or training would not have compelled the conclusion that a fair trial could not be held or was unlikely. The relevant prejudice was only one aspect of Ms Costin’s foreshadowed claim. Her claim had other important aspects to it, to which the asserted prejudice in respect of training and instruction does not apply. For example, part of Ms Costin’s particularised claim related to Coles’ duty to not expose her to a risk of damage or injury of which it knew or ought to have known, and to take reasonable care to ensure that the place at which she carried out her work was safe. These and other parts of its duty as employer and certain statutory duties were alleged to have been breached. Her second notice of claim alleged that Coles should have undertaken a job safety analysis to identify potential hazards and assess risks. There is no evidence that it undertook such an analysis of the obvious hazard identified in Ms King’s affidavit whereby there was little space left between the two pallets. Ms King could readily understand how Ms Costin got her foot stuck. Ms Costin should be permitted to litigate such a claim in circumstances in which she reported the incident in a timely way, the incident was recorded and managers, including Ms King, were in a position to observe the hazard which caused her injury. Similar observations apply to other aspects of her foreshadowed claim, including the onerous nature of her duties and being required to work alone.

[53] Whilst it may not have been possible for Coles to have a fair trial of an issue in relation to the adequacy of Ms Costin’s training and instruction because of actual and presumptive prejudice in relation to that aspect, this does not mean that a fair trial could not be had in relation to other aspects of the claim. I conclude that the primary judge erred in not concluding that there was a real possibility of significant prejudice in relation to Coles’ defence of Ms Costin’s claim insofar as it related to instruction and training. To the extent the primary judge erred in that regard, his discretion miscarried. The appropriate course would have been to grant the application on conditions which addressed the identified prejudice and thereby ensured a fair trial for both Ms Costin and her former employer.

[54] An appropriate condition would have been one whereby Ms Costin undertook to not litigate an allegation that she did not receive adequate training. Upon the hearing of the appeal, counsel for Ms Costin indicated that if this proved to be a critical aspect then he would obtain instructions from her.

[55] I consider that this aspect is important. Unless Ms Costin provides a suitably-worded undertaking which precludes her from litigating the issue of training and instruction, the appeal should be allowed and the application for an extension of time dismissed. The preferable course, however, is for an undertaking to be provided so that she may litigate those parts of her claim which are not the subject of significant prejudice.

[56] The parties should be given an opportunity to formulate a suitably-worded undertaking so as to enable the balance of Ms Costin’s claim to be tried fairly.


David Cormack – Brisbane Barrister & Mediator

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