Alexander v Westrail - [2000] WADC 119

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: ALEXANDER -v- WESTRAIL [2000] WADC 119

CORAM: COMMISSIONER REYNOLDS

HEARD: 4 MAY 2000

DELIVERED : 12 MAY 2000

FILE NO/S: CIV 40 of 2000

BETWEEN: GRAEME WILLIAM ALEXANDER
Plaintiff
AND
WESTRAIL
Defendant

Catchwords:

Application for leave pursuant to s47A to bring an action - Reasonable cause - Material prejudice - Turns on own facts

Legislation:

Limitation Act 1935 (WA)

Workers' Compensation and Rehabilitation Act 1981

Result:

Application refused

Representation:

Counsel:

Plaintiff: Mr N A Laurence
Defendant: Mr M L C Salmon

Solicitors:

Plaintiff: Bradford and Co
Defendant: Phillips Fox

Case(s) referred to in judgment(s):

Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866
Pitcher Products Pty Ltd v Country Roads Board and Utah Australia Limited (1964) VR 661

Case(s) also cited:

Nichols v Minister for Health (1992) 8 SR (WA) 310
Skahill and Another v City of Wanneroo, unreported; SCt WA; Library No 970410; 15 August 1997
Stevens v Motor Vehicle Insurance Trust [1978] WRA 232

COMMISSIONER REYNOLDS:

Introduction

Before me for determination is an originating summons by the plaintiff seeking an order that pursuant to s47A of the Limitation Act 1935 (WA) ("the Act") he be given leave to commence an action against the defendant for damages with respect to a disability sustained by him on 29 June 1994. An affidavit by the plaintiff sworn on 7 April 2000 ("the plaintiff's affidavit") has been filed in support of the application. The defendant opposes leave being granted. Two affidavits have been filed on behalf of the defendant to support its opposition to the application. One is by Frederick Douglas Munyard ("Munyard") sworn on 2 May 2000. Munyard has been employed as the administration manager of the defendant for the last nine years. Prior to being appointed administration manager he worked for the defendant in various positions. The other affidavit relied on by the defendant is that of James Murray Grant ("Grant") sworn on 2 May 2000. Grant is employed by the defendant as a plant maintenance and derailment officer and has held that position with the defendant for approximately 15 years.

The provisions of s47A of the Act

Section 47A(1) of the Act relevantly provides as follows:
"Notwithstanding the foregoing provisions of the Act but subject to the provisions of subss (2) and (3) of this section, no action shall be brought against any person (excluding the Crown) for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority, or in respect of any neglect or default in the execution of the Act, duty or authority, unless –
(a)the prospective plaintiff gives to the prospective defendant, as soon as practicable after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and his name and address and that of his solicitor or agent, if any; and
(b)the action is commenced before the expiration of one year from the date on which the cause of action accrued,
….."
Section 47A(3) of the Act relevantly provides as follows:
"(3) (a)Notwithstanding the foregoing provisions of this section application may be made to the Court which would but for the provisions of this section have jurisdiction to hear the action, for leave to bring an action at any time before the expiration of six years from the date on which the cause of action accrued, whether or not notice as required by subs (1) of this section has been given to the prospective defendant.
(b)Where the Court considers that the failure to give the required notice or the delay in bringing the action as the case may be, was occasioned by mistake or by any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise by the failure or delay, the Court may if it thinks it is just to do so, grant leave to bring the action, subject to such conditions as it thinks it is just to impose.
….."
It is accepted by the plaintiff that he did not give written notice as required by s47A(1)(a) of the Act or commence an action before the expiration of the one year period as required by s47A(1)(b) of the Act. The plaintiff first gave written notice to the defendant by way of his solicitors letter dated 8 September 1999. Given that the date of the incident which the plaintiff says gave rise to his disability occurred on 29 June 1994 the written notice was first given to the defendant about four years and three months after the incident.
The key provision for the purpose of this application is s47A(3)(b) of the Act. It provides three criteria for consideration namely mistake, reasonable cause and material prejudice. It is important to note that the reference to each of these three criteria is expressed in the alternative. It is therefore the case that if any one or more of the criteria applies then the Court would need to consider whether or not it was just to allow the action to be brought. The plaintiff bears the onus of demonstrating that leave should be granted. It follows from all of this that the plaintiff bears the onus of demonstrating any one or more of mistake, reasonable cause or that the prospective defendant is not materially prejudiced. The plaintiff also bears the positive burden of demonstrating that the justice of the case requires that he be provided with an extension of time to commence his action despite the limitation period having expired. See Brisbane South Regional Health Authority v Taylor (1996) 70 ALJR 866 per Justice McHugh at p872.

The plaintiff's evidence concerning the incident

The following evidence is contained in the affidavit of the plaintiff to which I have earlier referred. The plaintiff was born on 14 December 1945 and is 54 years of age. On 29 June 1994 he was employed by Brambles as a crane operator. He has had 29 years experience as a crane operator and holds a crane operators certificate. On 29 June 1994 in the course of his employment with Brambles the plaintiff was required to attend the location of a train derailment in Jarrahdale. Brambles had two cranes operating in conjunction at the scene lifting wagons and placing them back on to the rail track. When the plaintiff arrived at the scene he took over the operation of one of the cranes from another operator. The particular crane operated by the plaintiff was a 100 tonne crane. The plaintiff had operated this particular crane for about three years leading up to the date of this incident. During the course of the operation Westrail employees performed the role of dogman and attached chains and spreaders to the wagons which were then attached to the lifting hook of the crane. Once the wagons were replaced back on to the rail track the chains and spreaders were removed by Westrail employees. The operation was being conducted under floodlights.
After the plaintiff had been working on the site for some time, it was decided that the crane he was operating should be moved to a new location where it could be set up for further work to be done the next day. The crane was moved about 300 metres to the east and up a hill from where it had previously been positioned and away from the lighting plant. Access to the new site was very limited and the train line at that point was a mess and the ground was very muddy.
There is a certain procedure to be undertaken when shifting the crane from one location and positioning it at another. Outriggers were used to secure or stabilise the crane. As I understand it timbers were placed on the ground and the outriggers in turn positioned on the timbers. The crane itself was positioned on a prime mover. When the crane was moved it was necessary to retract the outriggers and collect the timbers. Shifting the crane from one location to another also involved rotating the crane itself and moving a counterweight. The counterweight was moved into position by the operation of hydraulics and once in position and attached it was secured to the crane by locking pins inserted in each side of the crane.
On the particular night in question the crane on the prime mover had been located in the new position with the outriggers properly extended and on the timbers such that the crane and prime mover were level and secure. The plaintiff had to insert the locking pin on each side of the crane to secure the counterweight. He inserted the locking pin on the left side of the crane which faced towards the light produced by a generator about 300 metres away. He then moved to the other side of the crane, which was in total darkness, in order to insert the locking pin on to that side of the counterweight. There was no light in the area and he could not see where he was going. He was wearing steel capped safety boots with a good tread. The surface was not slippery. The plaintiff then fell to the ground. He cannot recall the commencement of the fall. He also cannot recall slipping or experiencing any sensation other than falling. His next recollection is being on the ground and trying to get up. A supervisor employed by Brambles and several Westrail employees came to his aid.
Following this incident the plaintiff was off work and in hospital for about a week. Thereafter he remained at home for about three weeks and then returned to work on light duties with the assistance of ongoing treatment. He has remained on restricted duty since returning to work and has been unable to independently operate any of the larger machines.

Mistake

The plaintiff does not say that his failure to give the required notice or his delay in bringing the action within the requisite time period was occasioned by mistake.

Reasonable cause

The plaintiff stated in para 14 of his affidavit that the delay in bringing these proceedings, was a delay until February 1999 when he first instructed his solicitors. In para 15 he stated that it was becoming clear that his future would be compromised by his injuries. I take it from these two paragraphs that the plaintiff means that it was becoming clear in February 1999. There are a number of points I wish to make in relation to these statements. First, the plaintiff instructing his solicitors is obviously not the same as the plaintiff giving notice of the sort as required by s47A(1)(a) of the Act. It was not until September 1999 that the plaintiff's solicitors gave such notice to the defendant. The plaintiff's delay is therefore not until February 1999 as stated by the plaintiff but rather until September 1999 as I have previously mentioned. Secondly, the plaintiff has not filed any medical evidence in support of his application. Further, the plaintiff has not outlined in his affidavit details of his injuries and his progress in relation to them. His solicitors letter dated 8 September 1999 to the defendant provides that he suffered multiple injuries to the left shoulder, cervical spine, low back, left wrist, left knee, ribs and right hand.
On 9 April 1998 Brambles workers' compensation insurer MMI Insurance Group filed a summons in the Local Court at Perth against the defendant seeking the sum of $8,731 by way of reimbursement of workers' compensation payments made to the plaintiff by it arising from the injuries sustained by the plaintiff on 29 June 1994. I do not know how the sum of $8,731 is made up but it may include medical expenses as well as wages. The reason I refer to this summons and the amount claimed by MMI Insurance Group is that it provides support to the plaintiff's evidence and the conclusion that the plaintiff returned to work on light duties about four weeks after the incident. Given the plaintiff's own evidence that he returned to work about four weeks after the incident and that since his return he has remained on restricted duties and been unable to independently operate any of the larger machines I think that any likelihood of the plaintiff's future being compromised by the injuries would have manifested itself well within several months of the incident. At the very least it would have manifested itself within a year of the incident. Further, even a year after the incident is a very long time before both February and September 1999.
The plaintiff has failed to satisfy me on the evidence presented that the failure to give the required notice and bring the action was occasioned by any reasonable cause.

Material prejudice

Grant stated in his affidavit that he contacted Brambles on the day of the derailment and ordered two cranes. He told Brambles that two bigger cranes were required and he gave details of the location of the derailment. He said that he had contacted Brambles on previous occasions to supply cranes and that Brambles also supplied experienced crane drivers.
When the cranes arrived at the location they were set up by the crane drivers with the assistance of various employees of the defendant. Such assistance included setting up the outriggers of the crane. He said that the crane drivers in the situation that presented itself at Jarrahdale were responsible for the crane, its location and its safety. He added that the defendant's staff employed to work on derailments were experienced and knew what to do to assist crane drivers in setting up the cranes. A supervisor from Brambles, John Kirkpatrick, was on site throughout the day and was present at the time the plaintiff sustained his alleged injuries. Mr Kirkpatrick was at the site to supervise and not to drive a crane.
Grant has stated that the lighting at the scene was fully adequate for the work to be undertaken. To the best of his recollection the lighting at the scene was provided by lights from the various trucks, generator lights and lights on the cranes themselves.
Grant stated in his affidavit that he doubts that the crane operated by the plaintiff was moved about 300 metres to the east from where it had been previously positioned before the incident. He stated that at most the crane would have been shifted about 120 to 150 feet equivalent to the length of three wagons. Grant confirmed that prior to the plaintiff sustaining his alleged injuries the defendant's employees assisted the plaintiff in moving the crane into place and securing it into position ready for the next day. He stated that the defendant's employees assisted the plaintiff as far as they were able prior to leaving the plaintiff when there was nothing further for them to do. He stated that the crane driver is responsible at all times for attaching the counterweights to the crane and for the manner in which the counterweight is so attached. The defendants employees have no say in how the counterweight is to be attached and nor are they required, requested or instructed to assist the crane driver in attaching the counterweight.
Grant stated that Mr Kirkpatrick first found the plaintiff lying on the ground alongside the crane and that he subsequently attended and saw the plaintiff lying on the ground. Grant stated that he recalls the plaintiff indicating to people who had surrounded him at the scene of the accident that he was fine and Mr Kirkpatrick saying that he would take the plaintiff to the Armadale Hospital to be examined to ensure that he was alright.
Grant stated that he recalls that the plaintiff did not attend work at the derailment site on the following morning. The job finished that day and he received no further information about the plaintiff's condition until a short time later when he contacted Brambles to order further equipment and asked whether the plaintiff was alright. He stated that he was told that the plaintiff had injured his neck but would be returning to work shortly. Grant also stated that within a matter of a few weeks following the incident the plaintiff was, to his knowledge, back at work driving Brambles cranes ordered by Grant on behalf of the defendant. Grant has stated that to the best of his knowledge and recollection he did not hear anything further in relation to the plaintiff's injuries or of any potential common law claim the plaintiff intended pursuing or that the plaintiff had claimed workers' compensation until he was contacted in December 1998 by an investigator appointed by the defendant.
Grant has stated in his affidavit that he is not able to recall who supplied the lighting at the scene of the derailment and/or who made the decision to move the crane that the plaintiff was operating to the new location immediately preceding the incident.
Munyard stated in his affidavit that save for the information given to Grant on an informal basis about the plaintiff's condition the defendant did not receive any notice from the plaintiff or Brambles on the extent of the plaintiff's injuries or the nature of any alleged loss sustained by him or that he had pursued a workers' compensation claim until the defendant received a letter of demand seeking reimbursement of workers' compensation payments from the solicitors for MMI Insurance Group on 2 February 1998. He also stated that the first the defendant became aware that the plaintiff was proposing to commence common law proceedings against the defendant was upon receipt of the plaintiff's solicitors letter dated 8 September 1999.
Munyard has stated that due to the delay in the defendant being advised of the plaintiff's intention to pursue common law proceedings the defendant has been materially prejudiced by not having the opportunity to fully investigate the circumstances surrounding the incident. Those employees of the defendant who were present at the location at the relevant time and who have been contacted about the matter cannot recall the exact nature of the lighting and who, if anyone, directed the plaintiff to move the crane immediately prior to the accident. The defendant is now unable to inspect the crane in the state it was in at the time of the accident because it has been substantially altered after the accident.
In my opinion the defendant would be materially prejudiced in its defence having regard to the evidence of Grant, Munyard and the plaintiff. The defendant has been denied the opportunity to properly investigate the circumstances surrounding the accident at a time reasonably proximate to the accident.
It is clear that some of the key issues involved concern the quality and location of the lighting at the scene of the derailment. As could be reasonably expected the passing of so much time has adversely affected the recollections of people on this issue. Other important issues concern the location of the crane at the time of the incident both absolutely and relative to lights. Given the passing of time Grant cannot be sure of the actual location of the crane at the time of the incident but disputes the plaintiff's evidence that the crane was moved about 300 metres to the position it was in at the time of the incident.
It would be fair to say that the plaintiff is at least vague or uncertain about the cause of his fall and how he fell. Was it something about the nature or surface of the ground which caused or contributed towards the fall? Was it some object lying on or positioned in the ground which caused or contributed towards the fall? It was far too late to conduct a reliable search of the relevant area by December 1998, February 1999 or September 1999.
It is the case that the defendant, by Grant, knew of the incident on 29 June 1994. However given the combination of the non-contradicted evidence that the plaintiff said that he was fine at the time of the incident, that so far as the defendant, by Grant, was aware, the plaintiff was back at work driving a crane within a few weeks or so of the date of the incident and that no notice of any claim was given to the defendant until about April 1998, the defendant could not be reasonably expected to have conducted an investigation of the incident at or proximate to the time it occurred.

I conclude from all of this that the defendant would be materially prejudiced in its defence if the plaintiff was granted leave to bring the action.
In this particular case there is another issue which provides further support for the conclusion that the defendant would be materially prejudiced in its defence. It also provides an alternative basis to conclude that the defendant would be materially prejudiced in its defence if the plaintiff was granted leave to bring the action. This further issue relates to amendments to the Workers' Compensation and Rehabilitation Act 1981 ("the Workers' Compensation Act") pursuant to the Workers' Compensation and Rehabilitation Amendment Act 1999 which came into effect on 5 October 1999.
Despite the plaintiff's employer Brambles being a relevant party in relation to the incident and their being a real possibility that it would be found negligent if joined as a party to any proceedings, it is now extremely unlikely that the defendant, if found negligent in any proceedings instituted by the plaintiff, will be able to seek a contribution from Brambles. This is because of the plaintiff's delay generally, amendments to the Workers' Compensation Act effective from 5 October 1999 and to the plaintiff not pursuing a determination of his level of disability at the Conciliation and Review Directorate under the Workers' Compensation Act.
Various provisions in the Workers' Compensation Act added by way of amendments effective from 5 October 1999 concerning this issue are as follows. Section 93F(4) provides:
"(4) If –
(a)section 93E(3) does not allow damages to be awarded in respect of the disability; or
(b)damages in respect of the disability have been awarded in accordance with subs (1)
the employer is not liable to make any contribution under the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (the 'Contribution Act') in respect of damages awarded against another person in relation to the disability."
Given the provisions of s93F(4)(a) it is necessary to go to s93E(3) to find the legislative requirements that need to be met before damages can be awarded. Sections 93E(3) and 93(E)(4) provide as follows:
"(3) Damages can only be awarded if –
(a)it is agreed or determined that the degree of disability is not less than 30 per cent and that agreement or determination is recorded in accordance with the regulations; or
(b)the worker has a significant disability and elects, in the prescribed manner, to retain the right to seek damages and the election is registered in accordance with the regulations.
(4)For the purposes of subs (3)(b) the worker has significant disability if it is agreed or determined that the degree of disability is not less than 16 per cent and that agreement or determination is recorded in accordance with the regulations."
Regulations 19M(1) and (4) of the Workers' Compensation and Rehabilitation Regulations 1982 provide as follows:
"19M Election to retain right to seek common law damages
(1) An election under s93E(3)(b) of the Act –
(a)is to be made in the form of Form 25 in Appendix I (the 'election form') and lodged with the Director; and
(b)cannot be made unless –
(i)it is agreed that the degree of disability is not less than 16 per cent; or
(ii)it is determined that the degree of disability is not less than 16 per cent.
…..
(4)Subject to subreg (5), on the day on which the Director receives the election form the Director is to –
(a)record –
(i)under reg 19K(2)(a) the agreement (if any) accompanying the election form; or
(ii)under reg 19L(2)(a) the determination (if any) accompanying the election form;
(b)register the election in a register kept for that purpose; and
(c)complete the relevant section of the election form and give a copy of it to the worker and the employer."
It is not an issue between the parties that the plaintiff has sought a determination under the Workers' Compensation Act that he has a significant disability as defined in the Workers' Compensation Act. A significant disability is a disability of 16 to 29 per cent of the body as a whole. It is also not in issue that the plaintiff's employer Brambles has not agreed that the plaintiff's disability satisfies the definition of a significant disability or that it is not less than 30 per cent. There is no evidence at all before me from the plaintiff on the progress and what stage has been reached on his application seeking a determination that he has a significant disability. There is also no evidence at all before me on what steps, if any, he is taking or proposes to take to prosecute his application. I note that the six year limitation period is due to expire next month.
In the circumstances including that the expiry of the limitation period is only just over a month or so away and the provisions of s93F(4) of the Workers' Compensation Act I have no doubt that Brambles will not seek a final determination of the plaintiff's application that he has a significant disability before the expiry of the limitation period next month. There is nothing before me to suggest that it will.
In the final analysis there is nothing to make me think that there is any real chance at all that before the end of the limitation period on 28 June 2000 there will be any determination on the plaintiff's application that he has a significant disability and/or a recording of any such determination in accordance with the regulations. If the determination is not made and recorded pursuant to reg 19M there can be no registration of the right to seek damages pursuant to s93E(3)(b). In the event that these requirements are not satisfied then by operation of s93F(4)(a) of the Workers' Compensation Act the defendant would be prevented from seeking any contribution from Brambles.
The date on which the relevant amendments to the Workers' Compensation Act to which I have referred became operative, namely 5 October 1999, is about five years and three months after the date of the incident on 29 June 1994. There was a lot of publicity and comment about the amendments before they became operative. I note that the plaintiff obtained legal advice in February 1999, about eight months before the amendments became operative.
As previously expressed I am of the opinion that the defendant would be materially prejudiced in its defence if the plaintiff was granted leave to bring the action because of the position the defendant has been put in by a combination of the plaintiff's delay and the amendments to the Workers' Compensation Act to which I have referred.

Whether it is just to grant leave

As previously mentioned whether it is just to grant leave to bring the action is a distinct issue from that of mistake, reasonable cause and not materially prejudicing the defendant in its defence. It is only necessary to consider this issue if the plaintiff has established any one or more of mistake, reasonable cause or not materially prejudicing the defendant in its defence. For the Court to decide that it would be just to grant leave to the plaintiff to bring the action it must be satisfied that it would be fair and proper in all the circumstances to do so. See Pitcher Products Pty Ltd v Country Roads Board and Utah Australia Limited (1964) VR 661.
Even if the plaintiff has reasonable cause or has not materially prejudiced the defendant in its defence I am of the opinion that it would not be just to grant leave for the plaintiff to bring the action given the circumstances in relation to the Workers' Compensation Act and in particular the defendant's delay in pursuing a determination and recording of a significant disability as required by reg 19M and ss93E(3) and (4) of the Workers' Compensation Act.

Conclusion

For all these reasons the plaintiff has not satisfied me of any one of the criteria, mistake, reasonable cause or not materially prejudicing the defendant's defence. Accordingly the plaintiff's application for leave to bring the action should be refused.
Further and in any event the plaintiff has not satisfied me that it would be just to grant leave.
Accordingly leave is refused and the plaintiff's originating summons is dismissed.