Bluett v Wedd Cannon Pty Ltd - [1999] TASSC 23

[1999] TASSC 23

PARTIES:  BLUETT, Bradley Jamin
  v
  WEDD CANNON PTY LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  1411/1998
DELIVERED:  9 March 1999
HEARING DATE/S:  5, 8 February 1999
JUDGMENT OF:  Wright J

CATCHWORDS:

Limitation of Actions - Postponement of the bar - Extension of time - Principles upon which discretion exercised - Personal injury sustained during employment - Prima facie case - Onus upon the applicant - Explanation for delay offered - Delay not unreasonably prejudicial.

Limitation Act 1974 (Tas), s3.
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, applied.
Butt v Comalco Aluminium (Bell Bay) Ltd B9/1996; Glover v Southern Cross Homes (Tasmania) Inc 111/1997; Marr v Green 3/1993; Mayne v Kemp 30/1998, considered
Aust Dig Limitation of Actions [55]

REPRESENTATION:

Counsel:
             Applicant:  R E Hudson
             Respondent:  S R Worsley
Solicitors:
             Applicant:  Butler, McIntyre &Butler
             Respondent:  Abetz Curtis & Worsley

Judgment category classification:
Judgment ID Number: [1999] TASSC 23
Number of pages: 5

Serial No 23/1999
File No 1411/1998

BRADLEY JAMIN BLUETT v WEDD CANNON PTY LTD

REASONS FOR JUDGMENT WRIGHT J

9 March 1999

The applicant applies, pursuant to the Limitation Act 1974, s3, or, alternatively, the Workers Rehabilitation and Compensation Act 1988, s135, for an order that the period limited for bringing an action for damages for personal injury, allegedly caused by the negligence or breach of statutory duty of his employer, the respondent, be extended. A writ was filed on behalf of the applicant by his solicitors on 13 November 1998 and, accordingly, if his application is successful, a nunc pro tunc order will give legitimacy to that process. Two affidavits by the applicant and an affidavit by his former solicitor, were filed and read in support of the application. The applicant was cross-examined upon his affidavits and one of the medical practitioners whose report was annexed to the applicant's affidavit, was also cross-examined as to the contents of that report. The respondent did not seek to cross-examine the applicant's former solicitor. The respondent filed no affidavits and called no evidence.
The applicant's evidence established to my satisfaction that he commenced employment with the respondent company in November 1991 and ceased that employment in or about January 1995. Throughout that period of time he was employed as a sales clerk at 50 Letitia Street, North Hobart. From time to time his work involved heavy lifting. Before 18 May 1993, the applicant had never sustained an injury to, nor suffered pain in, his lower back. On that day, the applicant was requested by Gordon Nichols, a fellow employee, to assist him unloading a wood heater from the tray of one of the respondent's trucks. The truck was reverse parked into a parking bay at 50 Letitia Street immediately outside the northern roller door entrance way to the building. The tray of the truck was approximately one metre above ground level. At the time, an hydraulic lifting device was generally available to aid in the heavy lifting and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] TASSC 23
Decision Date: 9 March 1999

CaseChat Overview and Summary

In the Supreme Court of Tasmania, Bradley Jamin Bluett applied for an extension of time to bring an action for damages for personal injuries sustained during employment, which he alleged were caused by the negligence or breach of statutory duty of his employer, Wedd Cannon Pty Ltd. The applicant sought relief under the Limitation Act 1974 (Tas), s3, or, alternatively, the Workers Rehabilitation and Compensation Act 1988, s135. The applicant's evidence demonstrated that he had suffered an injury to his lower back while assisting in unloading a wood heater from a truck on 18 May 1993. The pain associated with this injury worsened over time, and the applicant eventually sought legal advice in June 1997. However, he did not file a writ until 13 November 1998, well beyond the statutory limitation period.

The legal issues before the court were whether the applicant had provided a satisfactory explanation for the delay in bringing the action and whether the respondent would suffer undue prejudice if the limitation period were extended. The court considered the applicant's explanation for the delay, which included the fact that his injury did not manifest in a severely disabling form until after the limitation period had expired, and that he had received materially defective legal advice. The court also considered the respondent's argument that the applicant had delayed unreasonably and that the delay would cause substantial prejudice. Ultimately, the court found that the applicant had provided a satisfactory explanation for the delay and that the respondent would not suffer undue prejudice if the limitation period were extended.

The court exercised its discretion under the Limitation Act 1974 (Tas), s3, to extend the limitation period, and granted the applicant's application for an extension of time. The court will hear counsel as to the terms in which the order should be made.

Orders