The High Court has refused a defendant’s application to dismiss a workplace injury claim because of delay, finding that the defendant had not shown prejudice sufficient to outweigh the plaintiff’s interest in taking the case to trial.
The judgment, delivered by Ms Justice Bolger on 8 April 2022, concerns a personal injury claim issued in December 2008 by Michael Mansfield against Roadstone Provinces Limited. The claim arises from an accident Mansfield says happened on 6 November 2006 while he was driving a forklift at the defendant’s premises.
The last steps in the case before 2019 were taken in 2009. The plaintiff’s solicitor served a notice of intention to proceed in March 2019, after which the case became active again. In January 2020, the court made a consent order requiring the defendant to provide discovery. The judgment says the order had not been complied with by the time of the dismissal application. A separate plaintiff’s motion to strike out the defence over the discovery failure had been adjourned pending the outcome of that application.
The defendant argued that the delay was inordinate and inexcusable and that it would face prejudice in defending an old claim. Its affidavit referred to the closure of the facility where the accident allegedly occurred and the former location manager no longer working for the company. Its counsel also raised possible witness memory and availability problems.
The judge found the delay of about ten years between the 2009 steps and the 2019 notice to proceed was inordinate. She also found it inexcusable, saying the defendant’s late verification of its defence did not explain the plaintiff’s failure to progress the case during that period.
However, the court found the defendant’s prejudice had not been adequately established. Concerns about witnesses were raised in oral submissions but were not supported by affidavit evidence of specific harm, such as a witness’s death or documented memory impairment. The judgment also noted that a defence-verification affidavit had been sworn in 2020, relying in part on an accident report and an engineer’s report.
The court considered the defendant’s own conduct, including its delay in verifying its defence, its handling of discovery and the timing of its dismissal application. It also noted that the plaintiff said he had attended two medical appointments in 2009 but the defendant’s doctor did not appear; the defendant had not denied that account on affidavit.
Justice Bolger concluded that the plaintiff would be prejudiced if barred from litigating his claim, while the defendant’s claimed prejudice did not outweigh that. She refused the motion to dismiss and said the case could proceed to trial. Her indicative view was that costs should follow the event. She said the parties could make submissions on costs or other orders, including case management, at a hearing listed for 10 May.