Carruthers v Aitkin Crane Services Pty Ltd & Ors No. DCCIV-01-868

CARRUTHERS v AITKIN CRANE SERVICES PTY LTD & ORS
[2003] SADC 61
Judge Allan
Civil

This an appeal against orders of a Master made on 5 February 2003 whereby he dismissed the plaintiff’s claim against the first, second, third, fourth, fifth, sixth, eleventh, twelfth and thirteenth defendants.
At the hearing of the appeal, I was informed that the action has been resolved as between the plaintiff and all the defendants save for the first, second, third, fourth, fifth and twelfth defendants, so that the appeal survives only in relation to those named defendants.
The plaintiff’s claim is for damages for injuries and loss sustained on 19 June 1998 while he was working at the Olympic Dam Mining Facility at Roxby Downs. The plaintiff, a boilermaker, was in a workbox attached to a crane elevated some distance above the ground, attaching a guard rail to the top of a silo. While being lowered to the ground, the workbox went into “free fall” for some distance, as a result of which the plaintiff suffered serious injuries, including broken bones in his left foot with associated ligamentous and soft tissue damage.
The plaintiff’s proceedings were issued on 19 June 2001. His claim is not insubstantial. He sued the first, second, third, fourth and fifth defendants (“Aitkin”) as owners of the crane and the twelfth defendant (“WMC”) as the occupier and controller of the mining facility. Appearances were duly filed by Aitkin and WMC and a defence was filed by Aitkin on 14 May 2002 and by WMC on 22 May 2002.
A status conference was held on 10 September 2001 at which discussion took place as to whether the proceedings would be discontinued against some of the thirteen defendants, the plaintiff’s solicitor indicating that they had been unable to meet with counsel on that topic. The conference was adjourned to 22 October 2001.
On 22 October 2001, the matter was further adjourned until 13 November 2001 to allow the plaintiff to determine which defendants, if any, were to be released from the action.
The plaintiff’s solicitors did not attend the adjourned hearing on 13 November 2001, and the matter was adjourned to 6 December 2001.
On 6 December 2001, the matter was adjourned to 7 February 2002 to enable the plaintiff to obtain the opinion of counsel.
The matter was further adjourned on 7 February 2002 to 4 April 2002; the plaintiff’s solicitor indicating that more time was required for the determination of the appropriate defendants.
On 4 April 2002, the plaintiff’s solicitors raised matters of discovery relative to ownership of the crane and the matter was adjourned until 16 May 2002.
At the hearing on 16 May 2002, the Master, amongst other things, ordered that the plaintiff make discovery and file and serve an affidavit of loss within 35 days and that the plaintiff’s file principal or counsel attend the next directions hearing fixed for 2 July 2002.
On 2 July 2002, amongst other things, the Master ordered all parties to make discovery on or before 9 August 2002 and the plaintiff to serve all parties with his affidavit of loss on or before that date. The matter was adjourned to 19 September 2002, at which time the plaintiff was to indicate which of the defendants he wished to proceed against.
On 19 September 2002, the plaintiff was directed to notify the other parties as to which of the defendants he proposed to proceed against by 10 October 2002. The matter was adjourned to 17 October 2002.
On 17 October 2002, the time for the making of discovery by the plaintiff and the filing of his affidavit of loss was extended for a period of 28 days and the plaintiff was to notify all parties as to his intentions with relation to the defendants within 6 weeks. The matter was adjourned to 12 December 2002.
On 12 December 2002, the time for making discovery by the plaintiff and the filing of his affidavit of loss was extended for 28 days and the plaintiff’s solicitor was directed “… to write to plaintiff warning that the Court will (as indeed it will) invite the defendants to make oral application in the event of further non-compliance with orders of the Court, i.e., for dismissal of the action on the ground of breach of orders without further notice to the plaintiff”. The Master was becoming inpatient with the progress, or lack of it, the case was making. The matter was adjourned to 5 February, 2003.
In the meantime, by application filed on 16 January 2003, Aitkin sought an order that the plaintiff’s claim be dismissed. The application was supported by an affidavit of the solicitor for Aitkin in which the history of the matter, much as I have just described it, was set out and in which it was made clear that the application to have the plaintiff’s claim dismissed was on the basis of the plaintiff’s failure to comply with orders of the court.
On 30 January 2003, WMC also filed an application in which it sought an order that the plaintiff’s claim be dismissed. It was supported by an affirmation made by WMC’s solicitor. The contents of the affidavit of Aitkin’s solicitor was adopted and details of the failure by the plaintiff to attend medical examinations arranged by WMC were given.
On 5 February 2003, the orders appealed against were made. Specifically, on the application of Aitkin, the following order was made:-
“In view of the specific terms of Master Kelly’s order of 12.12.02, on checking that there has been no filing by the plaintiff of an Affidavit of Loss or List of Documents and as the plaintiff is not in attendance I dismiss the plaintiff’s claim against defendants 1,2 3, 4 and 5 and I award to these defendants their costs of the action against the plaintiff”.
On the application of WMC, the following order, amongst other things, was made:
“I dismiss the plaintiff’s claim against defendant 12 and award to that defendant its costs of action against the plaintiff”.
As the order of the Master recites, the plaintiff was not represented at the hearing; and Mr Nicholson, the plaintiff’s solicitor, had not written to the plaintiff as ordered on 12 December 2002.
At the hearing of the appeal, I received an affidavit of Mr Nicholson. I set out part of it:
“17.Following my attendance at Court on 12 December 2002 and in light of the orders made on that date, I returned to my office and gave instructions to a staff solicitor to prepare the affidavit of loss without the economic loss information with a view to having the affidavit sworn and filing it early in the new year.
18.I am informed and verily believe to be true that between 12 December 2002 and 20 December 2002 a draft affidavit of loss was dictated, a true copy of which is exhibited hereto and marked with the letters “AN7”. As a consequence of relocating our office, which necessitated shutting down the computer system on 20 December 2002, the affidavit of loss was not typed.
19.Our offices did not re-open and our computers were not again on line until 15 January 2003. Within a few days of 15 January 2003, the draft affidavit of loss was typed and left for me to settle and thereafter make an urgent appointment for the plaintiff to depose to the affidavit upon my return to working following the Christmas break.
20.As a result of a prolonged viral illness I was at work for only a few hours per day for one or two days commencing on 15 January 2003 and was then entirely absent from work until 3 February 2003. On 5 February 2003 I was required, by pre-arrangement, to be in Mount Gambier on business. I did not return from Mt Gambier until 7 February 2003. As a result of my absence, the affidavit of loss was never settled and arrangements never made for me to see the plaintiff to have it sworn.
21.When this matter came on in Court on 5 February 2003 there was no one in attendance from our office because, either through administrative error or inadvertence on my part the adjourned date had not been properly diarised.
22.With regard to the Order of Master Kelly that I write to the Plaintiff and “warn him that the Court will (as indeed it will) invite the defendants to make oral applications in the event of further non-compliance with the orders of the court ie for dismissal of the action on the ground of breach of orders without further notice to the plaintiff” it was my intention to, at the same time as I took instructions on the List of Documents and the Affidavit of Loss to inform the Plaintiff of the Master’s Orders, dictate a letter in front of him in that regard and have it typed and signed and deliver it to him at the time. As the attendance of the plaintiff did not take place for the reasons set out above, the plaintiff was not informed of the orders made by Master Kelly on 12 December 2002, nor of the potential consequences”.
The fact that Mr Nicholson did not write to the plaintiff as directed by the Master, by itself, means that the orders appealed against were irregular: Ford v Gray (1989) 50 SASR 425; and would be sufficient to set aside the orders; but, in my view, other reasons exist for doing the same thing.
I think, with respect, the learned Master erred in making the orders. In doing so, he was, in my view, precipitate. It is not difficult to understand the court losing patience with the repeated failure by the plaintiff to comply with its orders. Mr Sulio, for the plaintiff, readily conceded that the plaintiff has been dilatory; but I accept his submission that there is no indication that the delay and non-compliance with the orders of the court have been as a result of any wilfulness on the part of the plaintiff.
The striking out of the plaintiff’s claim is a drastic step; one which, in the circumstances, causes the plaintiff considerable hardship: he loses his cause of action. The cases make it clear that such a drastic course should only be taken as a last resort and in the worst cases. This is not one of those cases. It is not a case of a wilful refusal to comply with orders of the court. So it is that, and not without some sympathy for the learned Master, I think he was wrong to dismiss the plaintiff’s claim. I should say that, in reaching this conclusion, I have not attached any significance to the failure by the plaintiff to attend for the medical examinations arranged by the defendant WMC, the only relevance thereof, in the circumstances, being an indication of the plaintiff’s dilatoriness; and the same thing applies in relation to the plaintiff’s slowness in deciding against which defendants it will proceed.
I mention that there is no suggestion that the defendants have been prejudiced in any way because of the plaintiff’s delay and non-compliance which could not be remedied by orders as to costs.
Mr Hanus, for Aitkin, raised an issue as to the nature of the appeal; whether it is an appeal by way of rehearing or an appeal in the strict sense. The view I have taken of the matter means that it is unnecessary for me to decide that issue: I am satisfied that, with respect, the exercise of discretion by the learned Master which produced the orders, in all the circumstances, was wrong.
The appeal will be allowed and the orders of the Master appealed against set aside. I will hear counsel as to costs and any further or other order or orders.

[2003] SADC 61

1 May 2003