Cartwright v Steve Watt Constructions P/L

[2000] NSWSC 42

CITATION:

Cartwright v Steve Watt Constructions P/L & Ors [2000] NSWSC 42

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 20854/97

HEARING DATE(S):

9 February 2000

JUDGMENT DATE:

14 February 2000

PARTIES :

Robert Cartwright
(Plaintiff)

Steve Watt Constructions Pty Limited
(First Defendant)

Mark Lawler Pty Limited
(Second Defendant)

Robert Towers & Associates Pty Limited
(Third defendant)

JUDGMENT OF:

Master Harrison

COUNSEL :	Mr McLoughlin SC with Mr Fonzo (Plaintiff) M I E Davidson (Third Defendant)
SOLICITORS:	Orchiston Ranzetta Finney Gosford (Plaintiff) Corrs Chambers Westgarth (Third Defendant)
CATCHWORDS:	Extension of limitation period - S 60C and S 60E Limitation Act
LEGISLATION CITED:	Limitation Act 1969 (NSW)
CASES CITED:	Sydney City Council v Zegarac (1997-98) 43 NSWLR 195 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR
DECISION:	See para 15

9

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

MONDAY. 14 FEBRUARY 2000

20854/97 - ROBERT CARTWRIGHT v STEVE WATT
CONSTRUCTIONS PTY LIMITED & ORS

JUDGMENT (Extension of limitation period -)

s 60C and s 60 E Limitation Act;

add defendants; file amended
statement of claim)

1 MASTER: The plaintiff by notice of motion filed 26 November 1999 firstly, seeks an order that the time within which to commence proceedings be extended pursuant to ss 60C and E of the Limitation Act 1969 (NSW) (as amended) (the Act) as against the proposed second and third defendants; secondly, that leave be granted to join the proposed second and third defendants as defendants; and thirdly, leave be granted to amend the statement of claim to add the proposed second and third defendants as second and third defendants to the proceedings. The plaintiff relied on two affidavits of his solicitor, John Finney sworn 18 November 1999 and 3 February 2000. The proposed third defendant opposed the orders sought and relied on the affidavit of Michael McSweeney sworn 14 December 1999. The proposed second defendant neither consented to nor opposed the orders sought.

2   The plaintiff alleges on 22 May 1996 while he was assisting in the preparation of roadworks near the Kariong Fire Control Station a wall collapsed without warning and struck him causing him to become a paraplegic (S/C - para 9).

3   It is alleged that the first defendant was the head contractor and occupier of the site, that it supervised and controlled the work being undertaken by sub-contractors. It is alleged that the proposed second defendant was at all times the architect, superintendent and supervising architect of the work being carried out at the site including the roadworks. It is alleged that the proposed third defendant was the engineer involved in the project. The plaintiff has been awarded s 66 and s 67 compensation payments against his employer. The employer is not a party to these proceedings.

The Law

4   The plaintiff relies on ss 60C and E of the Act in relation to the actions pleaded against the proposed second and third defendants. Sections 60C and E fall within subdivision 2 of the Act which is defined as the secondary limitation period. Subdivision 2 applies only to causes of action that accrue on or after 1 September 1990 (see s 60B). Section 60C provides:

“Ordinary action (including surviving action)
60C(1)This section applies to a cause of action, founded on negligence, nuisance or breach of duty, for damages for personal injury, but does not apply to a cause of action arising under the Compensation to Relatives Act 1897.
(2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, after hearing such of the persons likely to be affected by the application as it sees fit, may, if it decides that it is just and reasonable to do so, order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines."

5   Section 60E provides:

“Matters to be considered by the court
60E(1)In exercising the powers conferred on it by section 60C or 60D, a court is to have regard to all the circumstances of the case, and (without affecting the generality of the foregoing), the court is, to the extent that they are relevant to the circumstances of the case, to have regard to the following:

(a) the length of and reasons for the delay;

(b) the extent to which, having regard to the delay, there is or may be prejudice to the defendant by reason that evidence that would have been available if the proceedings had been commenced within the limitation period is no longer available;

(c) the time at which the injury became known to the plaintiff;

(d) the time at which the nature and extent of the injury became known to the plaintiff;

(e) the time at which the plaintiff became aware of a connection between the injury and the defendant’s act or omission;

(f) any conduct of the defendant which induced the plaintiff to delay bringing the action;

(g) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice the plaintiff may have received;

(h) the extent of the plaintiff’s injury or loss.”

6   In relation to ss 60C and 60E of the Act, in Sydney City Council v Zegarac (1997-98) 43 NSWLR 195 Mason P referred to propositions which were uncontroversial. They are:

(1) Section 60C confers a judicial discretion.

(2) The discretion is a discretion to grant, not a discretion to refuse, an extension of the primary limitation period. The court must be satisfied that it is “just and reasonable” to make the order for extension.

(3) In exercising the discretion, the court is required “to have regard to all the circumstances of the case” (s 60E(1)). It is also required to have regard to the 8 factors listed in s 60E(1) “to the extent that they are relevant to the circumstances of the case”.

(4) Among those circumstances to which a court must have regard are the rationales for the existence of limitation periods which were identified in those passages from the Attorney General’s second reading speech these are set out in the order judgments, and are discussed by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; 139 ALR.

(5) Since s 60C creates a judicial discretion appellate review is restricted by well known principles. Mason P then says that beyond this there are more debatable areas of application of Taylor .

7   Powell J in Zegarac stated that three things may be said about s 60C and s 60E. He agreed with proposition 3 expounded by Mason P. Powell JA’s further two propositions were firstly, that an order extending the limitation period may only be made when it appears, in the light of all the circumstances of the case, including those set out in s 60E(1) of the Act, that it is just and reasonable so to do; and secondly although a prospective defendant may be subject to an evidentiary onus to raise any consideration telling against the exercise of the discretion to extend the limitation period, the ultimate onus of satisfying the court that, in all the circumstances of the case, it is just and reasonable that an order may be made lies on the applicant.

8   I turn to consider s 60E(1). The cause of action accrued on 22 May 1996. The limitation period expired on 22 May 1999. The proposed statement of claim was filed on 26 November 1999 together with the application seeking the extension of time. The application was filed about 6 months after the limitation period expired.

9   In relation to s 60E(1)(b) neither of the proposed defendants contended that they had lost evidence that would have been available had the action been commenced within the limitation period. They had already been joined as cross defendants on 3 April 1998. I will refer to delay generally later in this judgment. There has been no conduct on behalf of the proposed second and third defendants which would have induced the plaintiff to delay bringing the action (s 60E(1)(f)).

10   As previously stated, the accident occurred on 22 May 1996. Although the plaintiff has no memory of the accident, he would have within a few months after the accident he become aware that he had suffered a serious permanent injury, namely paraplegia. The plaintiff is a relatively young man, currently 37 years of age who has suffered serious injuries which have drastically altered his lifestyle. His claim, if successful, will be a substantial one (s 60E(1)(g)). Medical and experts reports have been obtained and served by the plaintiff on existing defendants between 8 August 1996 and 16 October 1998. As both the proposed second and third defendants had already become parties to the proceedings, the defendants should have served the experts and medical reports on the cross defendants. At the hearing, the proposed third defendant’s counsel referred to some of these reports (s 60E(1)(g)).

11   The plaintiff’s explanation for delay in seeking to join Mark Lawler Architects Pty Limited and Robert Towers & Associates Pty Limited was due to the inability to obtain WorkCover documents and the lack of expert or lay evidence suggesting a cause of action against them. The WorkCover prosecutions against Steve Watt Constructions Pty Limited and Coastal Asphalt were concluded on 9 July 1999 and 23 December 1999 respectively. There is a clear conflict in the factual matters arising out of the respective prosecutions, and the plaintiff does not known which position this court might adopt. The plaintiff sought senior counsel’s advice in June 1999 and this advice was given in July 1999. Senior counsel has confirmed advice that Mark Lawler Architects Pty Limited and Robert Towers & Associates Pty Limited should be joined. On 7 September 1999 the plaintiff advised the proposed second and third defendants that he intended to join them as defendants.

12   The proposed third defendant submitted that senior counsel’s advice could have been sought earlier and that most of the information required had been produced by way of subpoena in 1998. According to the proposed third defendant, advice could not have been sought and obtained before the limitation period expired. It is my view that the lay evidence came to light after the limitation period expired. However I agree that senior counsel’s advice may have been sought before the limitation period expired and I take this into account.

13   It was not submitted that the plaintiff does not have a real case to advance. In any event I am satisfied that the plaintiff has a real case to advance. I turn to consider delay generally. I accept that with the passing of time, there will be presumptive prejudice. It is now nearly 4 years since the accident occurred. However as previously stated, the proposed defendants have been parties to these proceedings since 3 April 1998.

14   It is my view that the defendants have not suffered significant prejudice nor are their chances of a fair trial unlikely. I have taken the matters referred to in s 60E(a)-(h) into account. The plaintiff has discharged his onus and I am satisfied that it is just and reasonable to extend the limitation period under ss 60C and E against the proposed second and third defendants. Costs are discretionary. Costs should be costs in the cause.
15   The orders I make are:

(1) Leave is granted for an extension of time within which to commence proceedings in this court for damages in respect of an accident which occurred on 22 May 1996, against the proposed second and third defendants up to and including 26 February 2000.

(2) Leave is granted to the plaintiff to join Mark Lawler Pty Limited and Robert Towers and Associates Pty Limited as defendants.

(3) Leave is granted to the plaintiff to amend the statement of claim to add Mark Lawler Pty Limited and Robert Towers and Associates Pty Limited as second and third defendants respectively in these proceedings.

(4) The plaintiff is to file and serve the amended statement of claim within 14 days.

(5) Costs of the motion to be costs in the cause.
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Last Modified: 09/25/2000