Belbin, Christopher Keith v Balbin, Alan and Belbin, Dawne Pauline

[1999] TASSC 51

[1999] TASSC 51

CITATION:              Belbin v Belbin & Anor [1999] TASSC 51

PARTIES:  BELBIN, Christopher Keith
  v
  BELBIN, Allan

BELBIN, Dawn Pauline

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO:  1176/1998
DELIVERED ON:  7 May 1999
DELIVERED AT:  Hobart
HEARING DATE:  26 April 1999
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Limitation of Actions - Postponement of the bar - Extension of time - Principles on which discretion exercised - Prima facie case - Whether arguable case established or merely speculative.

Workers Rehabilitation and Compensation Act1988 (Tas), s135(2).
Butt v Comalco Aluminium (Bell Bay) Ltd B9/1996, referred to.
Aust Dig Limitation of Actions [54]

REPRESENTATION:

Counsel:
           Applicant:  P A Griffits
           Respondent:  N Sweeney
Solicitors:
           Applicant:  Griffits & Jackson
           Respondent:  Page Seager

Judgment  Number:  [1999] TASSC 51
Number of paragraphs:  7

Serial No 51/1999
File No 1176/1998

CHRISTOPHER KEITH BELBIN v
ALLAN BELBIN & DAWN PAULINE BELBIN

REASONS FOR JUDGMENT  COX CJ

7 May 1999

1. The applicant seeks an order that the time limited by the Workers Rehabilitation and Compensation Act 1988, s135(1) for him to commence proceedings against the respondents to recover damages in respect of an injury sustained on 6 July 1994 be extended until 4 September 1998.

1. The applicant, in his affidavit in support, deposed to having sustained an injury when, in the course of his employment as a truck driver, he lost his balance and fell from the doorway of the cabin of his truck onto the ground. The respondents, who were his employers, were also his parents.  He had been driving the truck regularly since its acquisition brand new in 1985.

1. The accident occurred at Boral Quarries, Bridgewater where the applicant was to load the truck and trailer with road materials for cartage to various sites pursuant to a contract the respondents had with that company.  The practice was for the truck drivers to wait in their trucks in the car park until they were called down in turn by the weighbridge attendant in the order in which they had arrived.  He would instruct drivers the nature of the material to be loaded and where it was to be delivered.  Thereupon drivers continued to a loading area in the quarry where a front-end loader would load the truck with the correct material.  On the day of the accident, the applicant was called down by the weighbridge attendant and told to pick up a load of Special Blend.  Special Blend was the nickname for concrete stabilised aggregate and consisted of a mixture of wet aggregate and cement dust used for special jobs in road construction.  The applicant deposed that there was a rule that when carting Special Blend, the driver had to ensure that the tray of his truck was clear of all other materials such as clay or road base which could contaminate the Special Blend.  If any contaminant in the load was discovered upon arrival at the delivery site, it might not be received and the driver might well be required to return it without being paid for cartage.  The only way to ensure that the tray was clear of contaminants was to check the tray visually.  Contaminants from previous loads, particularly clay, had a tendency to stick to the tray and needed to be removed by hosing down the elevated tray with a high pressure hose.  On the day of the accident, the applicant drove from the weighbridge office to the Special Blend heap at the loading area, stopped the truck and went to check that the tray was clear.  To do this he adopted the usual practice of opening the driver's door and standing in the doorway with both feet on the doorstep facing inwards towards the truck and holding on with both hands to the guttering above the doorway.  He then lent outwards far enough as to be able to look around the exhaust stack and see into the tray.  Having looked into the tray and noted that it was clear, his right foot slipped suddenly inwards, causing him to lose balance, to lose his grip on the gutter above the door and to fall backwards and outwards.  As he fell, he made a grab for the handle on the exhaust stack but missed it.  He landed on his back and suffered injury. 

1. He said that there was nothing else to hold on to but the gutter.  The exhaust stack itself was too hot to touch in its exposed parts and the protective surround was too large to place one's hand around and secure a grip.  The handle on the surround was too low to hold on to when standing in the doorway.  Its purpose is to assist when getting into the truck.  The applicant said that many makes of trucks such as Kenworths, Volvos and Western Stars all have standard handles above the doorway which can be used to hold on to safely, but the Ford truck which he was driving did not have such a handle which could easily and cheaply have been fitted on to it.  The applicant had used this particular method of checking the state of the tray since 1985 and it was common practice, he said, among other drivers whether or not their trucks were equipped with handles above the door.  He said there was no other easy way of getting to look into the tray.  He had not been instructed not to use the method he did use, nor had he been instructed to use any other method such as leaving the cab and climbing up the side of the tray onto the tie rail using the fuel tank as a foothold.  Such an alternative method, however, would expose a driver to a similar risk of losing his footing on the fuel tank or the tie rail and, according to the applicant's evidence, no other driver ever does this.  In cross-examination he acknowledged that it had never previously occurred to him that there was any risk of an accident occurring while he undertook this particular task, a task which could be required as frequently as two or three occasions on each working day that he attended at the quarry.  He conceded that he would have used this method to look into the tray on hundreds of occasions over the ten year period that he had had the truck without mishap.  He had never, in that time, voiced the slightest concern to his employers about the practice of looking into the tray of a truck, nor appreciated that there was any danger in doing so.  Even after discussions with his solicitors on his rights to workers compensation, it never occurred to him that there was any need to place a handle above the door or that his employer had been negligent in not providing him with a safe way of going about the task of looking into the tray where that was necessary.

1. The applicant gave reasons for the delay until 4 September 1998 in issuing the writ in this action.  Although in the meantime he had consulted two solicitors about his legal rights, he had not revealed precisely how the accident had happened and the circumstances from which he now claims negligence by his employers might be inferred.  Counsel for the respondent specifically conceded that an acceptable explanation for the delay had been given to the Court and that no special prejudice had been occasioned to the respondents.  He submitted, however, that the applicant had failed to demonstrate that he had an arguable case.  The applicant had undertaken the particular exercise on hundreds of previous occasions without mishap and without any appreciation of the possibility of sustaining injury thereby.  As well, many other drivers adopted the same procedure in respect of trucks which were not equipped with handles which they could grip to steady themselves.  Activities of this type, he submitted, were extremely common in human affairs and called for no special precaution such as the fitting of a non-standard handle.  He submitted that there was no issue worthy of agitation by way of trial. 

1. Counsel for the applicant argued that as there was a necessity for the driver to inspect his tray to ensure that it was clear of contaminants and that the only two practical ways of carrying out the inspection involved the driver standing on the vehicle at heights of 4 feet - 4½ feet, there was a foreseeable risk of injury should he fall, and that the risk of falling through loss of grip was neither fanciful nor remote.  Accordingly, the employer was under a duty to make an adequate response to the risk.  In this case, he submitted that there was a simple and cheap response available in the form of fitting a hand hold on the cab sufficient to enable the driver to steady himself while he looked in the tray.

1. I agree that there was a foreseeable risk of injury and that it is arguable that the applicant could persuade a court that his employers had failed to make adequate response in the circumstances to that risk.  In any event, I adopt the words of Zeeman J in Butt v Comalco Aluminium (Bell Bay) Ltd B9/1996 at 9:

"However, it is not a prerequisite to my granting the order sought that the appellant establish an arguable case. In some circumstances such an order has been made where there has been established no more than that an applicant may have such a case. The accepted relevance of the merits of a proposed cause of action on the hearing of applications of this nature should not be elevated into a proposition of law that an applicant must establish a prima facie case. On the other hand the failure to establish a prima facie case may suggest that the proposed action is speculative and therefore afford strong grounds for refusing an application (Taylor v Western General Hospital [1986] VR 250 at 253; Bell v SPC Ltd [1988] VR 123 at 126)."

(See also Bluett v Wedd Cannon Pty Ltd [1999] TASSC 23 at par11, per Wright J.)

1. In my view, the applicant's case is not speculative and in the absence of specific prejudice and of challenge to the acceptability of the explanation for delay, I now ask myself the final question, should I exercise the discretion which the applicant seeks to invoke?  The injuries sustained by him were serious ones and in all the circumstances I am persuaded by him that the justice of the case requires that I do so.  Accordingly, I grant the application.