Corbett v Toll Stevedoring Pty Limited

[2007] NSWSC 347

CITATION:	Corbett v Toll Stevedoring Pty Limited [2007] NSWSC 347
HEARING DATE(S):	30 March 2007 5 April 2007
JUDGMENT DATE :	5 April 2007
JUDGMENT OF:	Price J at 1
EX TEMPORE JUDGMENT DATE:	5 April 2007
DECISION:	1. The plaintiff is given leave to file the further amended statement of claim in the form of the Second Further Amended Statement of Claim. 2. The plaintiff is given an extension of time pursuant to s 60 C of the Limitation Act 1969 within which to commence proceedings against BHPB Freight Pty Limited namely, the Second Further Amended Statement of Claim is to be filed in this Court's registry by 4pm on 16 April 2007. 3. Costs of the motion are to be costs in the cause.
CATCHWORDS:	Application for extension of time - s 60C of the Limitation Act 1969 - explanation of delay - evidence of cause of action - prejudice - just and reasonable to extend limitation period.
LEGISLATION CITED:	Limitation Act 1969 s 18A, s 60C, s 60C(2), s 60E (1), Workers Compensation Act s 151C,
PARTIES:	Gary John Corbett Toll Stevedoring Pty Limited & Others
FILE NUMBER(S):	SC 20179 of 2004
COUNSEL:	Mr H Kelly SC and Mr P Menary - Plaintiff Mr T Parker SC - 5th Defendant
SOLICITORS:	W G McNally & Co. Lawyers - Plaintiff Piper Alderman Solicitors - 5th Defendant

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Price J

5 April 2007

20179 of 2004

Gary John Corbett v Toll Stevedoring Pty Limited & Others

JUDGMENT

1 HIS HONOUR: The plaintiff moves the Court for orders that:

1. The plaintiff be given leave to file a further amended statement of claim in the form of the “Second Further Amended Statement of Claim”.

2. The plaintiff be given an extension of time pursuant to section 60C of the Limitation Act 1969 within which to commence proceedings against BHPB Freight Pty Limited.

2 The plaintiff seeks costs and such further orders as the Court considers appropriate.

3 On 13 July 2001 the plaintiff was working for Illawarra Stevedores Pty Limited (the fourth defendant) as a marine operator contracted to carry out the securing of steel coil cargo on board the M V Cape Conway which was alongside the No 2 products berth at Port Kembla harbour. At about 11am on that day, whilst walking across the top of a stack of steel coils, four coils high, he slipped and fell a distance of about 4.5 metres to the hold below. The plaintiff suffered serious injuries in the fall, remaining an in-patient at Wollongong District Hospital for 33 days. A multi-level spinal fusion was performed in August 2003.

4 As the proposed cause of action is founded on negligence and breach of duty, the limitation period for bringing the action is three years from the date on which the cause of action first accrued to the plaintiff: s 18A of the Limitation Act 1969. Hence the limitation period expired on 12 July 2004.

5 Section 60C(2) of the Limitation Act 1969 (the Act) permits the Court “if it decides that it is just and reasonable to do so [to] order that the limitation period for the cause of action be extended for such period, not exceeding 5 years, as it determines”.

6 In exercising the powers conferred on it by s 60C of the Act, the Court is to have regard to all the circumstances of the case, and (without affecting the generality of matters to be regarded) the Court is, to the extent that they are relevant to the circumstances of the case, to have regard to the matters referred to in sub-sections (a) to (h) inclusive of s 60 E(1) of the Act.

7 In the present case the plaintiff has diligently sought to assert his rights arising from the accident. Just over four months after his injury, proceedings were commenced against the fourth defendant in the District Court. Those proceedings were, however, struck out as being in breach of s 151C Workers Compensation Act on 8 April 2002. On the 25 June 2003 he instructed his present solicitors and proceedings were commenced in this Court on 19 May 2004 against Toll Stevedoring Pty Limited (formerly known as BHP Stevedoring Pty Limited) (the first defendant) and Oldendorff Carriers GMBH & Co (KG) (the second defendant). The plaintiff’s Statement of Claim was further amended on 12 July 2004 when Rosewater Maritime Inc was joined as a third defendant and on 3 August 2005 when Illawarra Stevedores Pty Limited was joined as the fourth defendant.

8 On 4 January 2005 the first defendant filed a defence which contained the admission in paragraph 2(a) that it had contracted with the fourth defendant to provide suitable stevedoring/securing Personnel for the purpose of performing those operations and arranging for securing of cargos for vessels using the Number 2 products berth at Port Kembla harbour. In the event of that admission the plaintiff’s solicitors were entitled to comfortably assume that the identity of the supplier of stevedoring services to vessels using the Number 2 products berth was not in issue.

9 The plaintiff’s solicitors were, however, apprised by the solicitors for the first defendant in a letter dated 26 June 2006 that the first defendant would assert, inter alia, that it did not have the responsibility or role for making decisions as to the implementation of new systems for the loading and securing of cargo and understood that responsibility was vested in BHP Transport and Logistics Pty Limited – now BHPB Freight Pty Limited.

10 A copy of an unsigned document entitled “Stevedoring Services Sub-Contract” between the fourth defendant and BHP Transport and Logistics Pty Limited was annexed to the letter.

11 The plaintiff had instructed his solicitor that to the best of his knowledge and belief that his employer, the fourth defendant, had been contracted to supply the marine operators on the day of the accident. He was not aware of the existence or the involvement of BHP Transport and Logistics until 26 June 2006 when his solicitor apprised him of the information received from the first defendant’s solicitors.

12 The nescience of the plaintiff of BHPB Freight Pty Limited’s existence is hardly surprising.

13 The complexity of the structure and operations of BHP subsidiaries which the first defendant and BHPB Freight Pty Limited once were is manifest from the material before this Court. The plaintiff’s solicitors reasonably acted upon the their clients instructions. They moved earnestly to cure the problem by filing the present Notice of Motion on 10 August 2006. The first defendant had on 12 July 2006 filed a Fifth Cross-Claim joining BHPB Freight Pty Limited. A satisfactory explanation has been provided for the plaintiff’s delay.

14 The onus is on the plaintiff to demonstrate that there is evidence available to establish the cause of action against BHPB Freight Pty Limited. The plaintiff is not required to produce the actual evidence that will be relied on at trial. It is the availability of the evidence which the plaintiff must demonstrate. Much time has been devoted to this issue. The plaintiff’s cause of action is asserted to be one of negligence. It is the plaintiff’s claim that the system for loading and securing steel coils was one devised, instituted and maintained by the first defendant and / or the proposed defendant. The plaintiff claims, in short, that the system in place at the time of the accident was unsafe.

15 Mr Hay, the solicitor for BHPB Freight Pty Limited deposes in an affidavit sworn on 27 September 2006 [at para 14] to the information provided to him of the activities of BHP Transport and Logistics Pty Limited by Murray Worner who in July 2001 was the Manager for Risk Management of the Transport and Logistics Business Unit. None of the activities mentioned involved the supply of stevedoring services or the institution or maintenance of the system for the loading and securing of steel coils in Port Kembla harbour. Mr Parker of senior counsel made reference to the tax invoice issued to the first defendant from the fourth defendant for the loading of the vessel and the policy of insurance of which the first and fourth defendants were the insured. This evidence suggests that the proposed defendant was not involved as asserted by the plaintiff.

16 The recital of relevant services in the document entitled “Stevedoring Services Sub-Contract” expressed to be between the fourth defendant and BHP Transport and Logistics Pty Limited would suggest, however, that the operations of the proposed defendant were not limited to the extent of the information provided by Mr Worner. Furthermore, Ms Martin in cross-examination enunciated that on her instructions there was evidence, inter alia, demonstrating that BHP Transport and Logistics Pty Limited was responsible for identifying and determining the ships to be chartered to carry cargo in response to requests from customers and was involved in procedures that determined how cargo would be loaded and secured. There was evidence that the proposed defendant’s staff prepared documents that were passed on to the first defendant as to how cargo would be stored and staff were provided to implement occupational health and safety initiatives for the loading of the cargo. The evidence which the first defendant proposed to lead at trial is provided in broad terms in the letter from the solicitors for the first defendant to the solicitors for the plaintiff dated 10 August 2006. Mr Trainor enunciated the plaintiff’s case in cross-examination (see in particular T 14 – 20).

17 The evidence, said to be available, if adduced, is consistent with paragraph 5 of the Stevedoring Services Sub-Contract and assists in the inference being drawn that BHPB Freight Pty Limited was at the time of the plaintiff’s accident involved in the supply of stevedoring services and the institution and maintenance of the system for the loading and securing of the cargo on the M V Cape Conway, notwithstanding that the document is unsigned and there appears to be no direct evidence of the involvement of BHPB Freight Pty Limited at the time of the accident. Inferences of control that BHP Freight Pty Limited may have had of the system of work may reasonably be drawn from paragraphs 1, 2, 5 and 6 of that document and from exhibit B and exhibit 4D1. The three documents referred to in paragraph 23 of Ms Martin’s affidavit sworn on 16 June 2006, although unsigned, in combination with the above material support inferences being drawn that BHPB Freight Pty Limited had contracted with the fourth defendant in the provision of stevedoring services at Port Kembla and had control of the plaintiff’s work environment.

18 Mr Parker of senior counsel submits that the inferences to be drawn from the “Stevedoring Services Sub-Contract” are weakened by what counsel described as the “email trail”. The emails referred to, in my view, do not manifestly demonstrate that BHPB Freight Pty Limited was not in a contractual relationship with the fourth defendant. One only needs to consider the email of 5 October 2000 and the draft contract between the first defendant and “BHP T & L Stevedoring”.

19 The plaintiff has demonstrated that there is evidence available to establish the cause of action against the proposed defendant.

20 On the evidence it seems to me that there is an important triable issue of fact which will be a matter for resolution by the trial judge.

21 Five years had passed since the time of the accident before the proposed defendant was notified of the plaintiff’s claim. BHPB Freight Pty Limited was joined as a cross-defendant in July of last year. There is some prejudice to the proposed defendant by such delay.

22 In his affidavit sworn on 28 March 2007 Mr Hay referred to the difficulties being experienced locating and contacting potential witnesses. The accident, however, is not of such antiquity that the delay in BHPH Freight Pty Limited being joined will significantly affect its ability to defend the action. It is evident that instructions of substance have been obtained from Mr Worner.

23 An item of specific prejudice which is asserted is that BHPB Freight Pty Limited may be uninsured. That difficulty would have arisen whenever the proceedings were commenced. Further reference was made to possible difficulties arising from the failure to provide an insurer with notice.

24 The prejudice asserted, in my view, is not substantial.

25 The plaintiff, it appears, suffered serious injury and loss in the accident.

26 I am satisfied having regard to all the circumstances of the case that it is just and reasonable to order that the limitation period be extended to enable the further amended statement of claim in the form of the Second Further Amended Statement of Claim to be filed.

Orders

27 I make the following orders:

1. The plaintiff is given leave to file the further amended statement of claim in the form of the Second Further Amended Statement of Claim.

2. The plaintiff is given an extension of time pursuant to s 60C of the Limitation Act 1969 within which to commence proceedings against BHPB Freight Pty Limited namely, the Second Further Amended Statement of Claim is to be filed in this Court’s registry by 4pm on 16 April 2007.

3. Costs of the motion are to be costs in the cause.

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