Blaskovic v ABB Engineering Construction

[2002] NSWSC 35

CITATION:	Blaskovic v ABB Engineering Construction & Ors [2002] NSWSC 35
FILE NUMBER(S):	SC 20858/1997
HEARING DATE(S):	04/02/2002
JUDGMENT DATE:	8 February 2002
PARTIES :	Jakov Blaskovic by his tutor The Protective Commissioner for the State of New South Wales (Plaintiff) ABB Engineering Construction Pty Ltd (Formerly known as ABB Engineering Construction Pty Ltd (First Defendant) Regal Scaffolding Pty Ltd (Second Defendant)
JUDGMENT OF:	Hidden J at 1

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	n/a
LOWER COURT JUDICIAL OFFICER :	Master Malpass

COUNSEL :	Mr J Glissan QC - Plaintiff Mr G Wilson - 2nd Defendant Mr Fordham - Proposed 3rd Defendant
SOLICITORS:	Turner Freeman - Plaintiff Moray & Agnew - First Defendant Dennis & Company - Second Defendant Coleman & Greig - Proposed Third Defendant
CATCHWORDS:	Civil procedure: appeal from refusal by Master of application to join additional defendant.
DECISION:	Appeal allowed

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

20858/1997 – Jakov BLASKOVIC by his tutor The Protective Commissioner for the State of New South Wales –v- ABB Engineering Construction Pty Ltd (Formerly known as ABB EPT Construction Pty Ltd) & Ors

JUDGMENT

1 HIS HONOUR: On 5 October, 1994 the plaintiff, Yakov Blaskovic, was seriously injured at work. He was employed as a boilermaker/welder by the first defendant, ABB Engineering Construction Pty Limited. He fell from a ladder which had been placed against scaffolding erected by the second defendant, Regal Scaffolding Pty Limited. The work was being conducted at an oil refinery site owned by Shell Australia Limited. The plaintiff suffered brain damage, and in September 1997 he commenced proceedings in this Court against the two defendants by a tutor.

2 In June 2001 the second defendant filed a cross-claim against Shell Australia Limited, in which it was alleged that an employee of that company gave directions as to how the ladder from which the plaintiff fell should be placed. This led the plaintiff in the same month to apply for leave to file an amended statement of claim joining Shell Australia as a third defendant. That application was refused by Master Malpass on 9 November 2001, and I have before me an appeal by the plaintiff against that decision.

3 In an affidavit which was before the Master, the plaintiff’s solicitor deposed that it was not until he saw that cross-claim that he became aware of any suggestion that Shell Australia might have been involved in any negligence or breach of statutory duty giving rise to the plaintiff’s injuries. (The plaintiff himself has no recollection of the accident.) The Master refused the application because he did not find this an adequate explanation for the delay in proceeding against Shell Australia. He noted that it was always known that Shell was the occupier of the site and the head contractor. An investigation of the accident had been carried out by the Workcover Authority and, in the course of it, the managing director of the second defendant was interviewed. The record of that interview discloses something said by that gentleman which, the Master considered, should have put the plaintiff’s solicitor on notice of Shell’s possible involvement. The Master took the same view of a report by Unisearch of 28 February 2001, which had been prepared on behalf of the plaintiff.

4 The Master noted that the plaintiff bore the burden of satisfying him that he should make the order sought. He said that the result may well have been different if there were evidence explaining the “significant delay.” However, he expressed his conclusion in this way:

In my view, the evidence that is offered to explain delay is parsimonious and falls well short of explaining it. It does not explain why the role of the proposed third defendant was not the subject of earlier investigation.

5 Whether or not I might have taken the same view of the evidence, I cannot say that that was not a finding which was open to the Master. However, there are other matters to be considered, chief among them being whether Shell would suffer any unfairness by being joined. The Master acknowledged that Shell was already a party to the proceedings by virtue of the cross-claim but, with respect, he does not appear to have given that fact the weight it deserves. More importantly, he made no reference to the fact that it would still be open to the plaintiff to commence separate proceedings against Shell because, being a person under a disability, the normal limitation period would not run against him: S 52 of the Limitation Act, 1969. If the plaintiff did so, it would clearly be desirable that the two proceedings be heard together so that all relevant issues could be determined at one hearing. In fairness, it may be that this point was not taken before the Master, but I see it as determinative of the matter.

6 In all the circumstances, I am satisfied that the exercise of the Master’s discretion miscarried and that the appeal should be allowed. I shall consult the parties about the appropriate consequential orders and, if necessary, hear argument on costs.

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Last Modified: 03/25/2002