Duncan (Senior) v Albany and Districts Skills Training Committee Inc (in Liq)
[2008] WADC 172
•28 NOVEMBER 2008
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: DUNCAN (SENIOR) & ORS -v- ALBANY AND DISTRICTS SKILLS TRAINING COMMITTEE INC (IN LIQ) & ANOR [2008] WADC 172
CORAM: SCOTT DCJ
HEARD: 21 NOVEMBER 2008
DELIVERED : 28 NOVEMBER 2008
FILE NO/S: CIVO 129 of 2008
BETWEEN: COREY DUNCAN (SENIOR)
First Plaintiff
COREY DUNCAN (JUNIOR) by his next friend COREY DUNCAN (SENIOR)
Second PlaintiffWENDY MOURAMBINE by her next friend COREY DUNCAN (SENIOR)
Third PlaintiffAND
ALBANY AND DISTRICTS SKILLS TRAINING COMMITTEE INC (IN LIQ)
First DefendantHOUSING AUTHORITY
Second Defendant
Catchwords:
Application for leave to bring action pursuant to s 7(c) of the Fatal Accidents Act 1959 and s 47A(3) of the Limitation Act 1935 - Whether delay occasioned by reasonable cause - Whether material prejudice - Exercise of discretion
Legislation:
Fatal Accidents Act 1959 (WA), s 7(c)
Limitation Act 1935 (WA), s 47A(3)
Result:
Application allowed
Representation:
Counsel:
First Plaintiff : Ms E C Hensler
Second Plaintiff : Ms E C Hensler
Third Plaintiff : Ms E C Hensler
First Defendant : Mr N J Hepple
Second Defendant : Mr P T Keays
Solicitors:
First Plaintiff : Donna Percy & Co
Second Plaintiff : Donna Percy & Co
Third Plaintiff : Donna Percy & Co
First Defendant : Dibbs Abbott Stillman Lawyers
Second Defendant : Sparke Helmore
Case(s) referred to in judgment(s):
Baker v Shire of Albany (1994) 14 WAR 46
Black v City of South Melbourne [1963] VR 34
Hughes v Minister for Health [1999] WASCA 131
Jones v Bartlett (2000) 205 CLR 166
Lavita v The Shire of Gingin [2005] WADC 93
Matheson v Commission of Main Roads and Anor [2001] WASCA 402
New South Wales Department of Housing v Hume [2007] NSWCA 69
Pascoe v Nominal Defendant (Qld) (No 2) [1964] Qd R 373
Perry v City of Armadale [2004] WASC 167
Quinlivan v Portland Harbour Trust [1963] VR 25
Stevens v MVIT [1978] WAR 232
Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd [2002] HCA 35
Tucker v Hamdorf & Anor [2006] WADC 191
SCOTT DCJ: This is an application made by the first, second and third plaintiffs by originating summons dated 6 November 2008 for orders that:
(a)the first and second plaintiffs have leave to bring an action against the defendants under the Fatal Accidents Act 1959 (WA) with respect to the death of Vera Flanagan on or about 3 December 2002; and
(b)the first and second plaintiffs have leave to bring an action against the second defendant under s 47A(3) of the Limitation Act 1935 (WA) with respect to any cause of action arising from the death of Vera Flanagan and Shania Duncan on or about 3 December 2002; and
(c)the third plaintiff have leave to bring an action against the second defendant under s 47A(3) of the Limitation Act 1935 with respect to injuries sustained by her on or about 3 December 2002.
The first defendant does not oppose the application.
Having regard to the provisions of s 7(2)(a) of the Fatal Accidents Act 1959 the application for leave against the second defendant falls to be determined pursuant to s 47A of the Limitation Act 1935 ("Limitation Act").
Incident
On 3 December 2002 Vera Flanagan ("Ms Flanagan"), who was the de facto wife of the first plaintiff was cleaning the rear wall of a house ("house") leased from the second defendant, using a high pressure water cleaner.
The water cleaner was borrowed by the first plaintiff from his employer, the first defendant.
The water cleaner was connected to the 240 volt AC electricity supply at the premises via a flexible supply cord that was plugged into a socket outlet located at the rear exterior wall of the house.
Shania Duncan (the daughter of the first plaintiff and Ms Flanagan) ("Shania") and the third plaintiff were, at the time, in the rear yard of the house. Ms Flanagan and both children were barefoot and the ground, at the rear of the house, was covered with a large quantity of water as a result of the cleaning.
The high pressure water hose and the metallic frame of the water cleaner had become live due to damage to the flexible supply cord where it entered the water cleaner. The earthing conductor in the flexible supply cord had been worn away over time, was open circuited and therefore the metallic frame of the water cleaner was not earthed. A broken strand of the supply cord's earthing conductor which connected to the metallic frame of the cleaner had also punctured the insulation of the active conductor. This resulted in the conductive high pressure water hose and frame of the water cleaner becoming live at 240 volts.
Ms Flanagan and Shania both received a fatal electric shock and the third plaintiff sustained burns when they contacted the high pressure water hose on the water cleaner.
Limitation Act
The plaintiffs' causes of action accrued on 3 December 2002. Pursuant to s 47A(1)(a) and (b) of the Limitation Act the plaintiffs may not bring an action against the second defendant unless they have given to the second defendant, as soon as practicable after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based ("notice") and the action is commenced before the expiration of one year from the date on which the causes of action accrued viz by 2 December 2003.
Pursuant to s 47A(3) of the Limitation Act an application may be made to the court for leave to bring an action at any time before the expiration of six years from the date on which the causes of action accrued whether or not notice as required by s 47A(1) has been given to the second defendant.
Pursuant to s 47A(3)(b) of the Limitation Act where the court considers that the failure to give the required notice or the delay in bringing the action (as the case may be) was occasioned by:
(a)mistake; or
(b)any other reasonable cause; or
that the prospective defendant is not materially prejudiced in its defence or otherwise by the failure or the delay the court may if it thinks it is just to do so, grant leave to bring the action.
In this case it was not until by letter dated 15 February 2008 from the current solicitors for the plaintiffs that notice was given to the second defendant of the plaintiffs' intentions to commence proceedings against it (affidavit James Patrick Cannon sworn (on an unknown date in) November 2008 ("Cannon's first affidavit")).
In that letter of 15 February 2008 the solicitors for the plaintiffs provided the second defendant with copies of:
(a)the first plaintiff's statement to police dated 5 December 2002;
(b)a record of the investigation of the deaths by the coroner dated 12 December 2003;
(c)a report from North West Mental Health Service dated 3 May 2006; and
(d)a report from Gabrielle Egan, social worker, dated 16 June 2006.
In addition, in that letter the solicitors for the plaintiffs informed the second defendant of the investigations which had been undertaken by Energy Safety WA into the incident.
Causes of action
The first and second plaintiffs maintain a cause of action against the second defendant pursuant to the provisions of the Fatal Accidents Act 1959 ("Fatal Accidents Act") essentially for the loss of domestic services formerly provided by Ms Flanagan to them.
The first plaintiff also claims damages for psychiatric injuries he sustained as a consequence of the deaths of Ms Flanagan and his daughter, Shania, and the third plaintiff claims damages for the injuries sustained by her.
The causes of action against the second defendant are asserted by the plaintiffs to arise from the failure by the second defendant to fit a residual current device ("RCD") commonly known as a safety switch, to the house which was owned and leased by it contending that had an RCD been fitted the deaths/injuries would not have occurred.
The plaintiffs do not contend that the failure to give notice and to bring the action was occasioned by mistake.
Reasonable cause
The plaintiffs assert that the delay in giving the notice and making this application was occasioned by reasonable cause in that:
(a)Alexanders Lawyers ("Alexanders") acted for the first plaintiff from about mid‑2003 to about mid‑2005;
(b)Alexanders did not recommend to the first plaintiff to take steps to obtain leave to commence proceedings against the first and second defendants under the Fatal Accidents Act or the Limitation Act;
(c)Patrick J Cannon Coburn & Associates ("plaintiffs' solicitors") were retained by the first plaintiff in relation to potential claims by each plaintiff against the first and second defendants, on or about 10 October 2005;
(d)since being retained by the first plaintiff those solicitors have made investigations into the plaintiffs' claims and continue to gather evidence in support of those claims;
(e)the second and third plaintiffs are infants under the age of 14 years (Cannon's first affidavit, pars 2 ‑ 6).
Further, in Exhibit TJPC3 (to Cannon's first affidavit), in that letter of 15 February 2008 the plaintiffs' solicitors say that given their client's (first plaintiff's psychological state) and the fact he lived in Karratha for a period of time he did not bring the action within the required time period.
The term "reasonable cause" was explained by Sholl J in Quinlivan v Portland Harbour Trust [1963] VR 25 at 28 in the following manner:
"… a cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man."
In this case the second defendant did not receive notice from the plaintiffs of their intention to make a claim until the letter of 15 February 2008 ‑ more than five years from the date upon which their respective causes of action accrued.
Further, it was nearly six years from the date of the causes of action accruing before the plaintiffs made the present application.
I accept that where a plaintiff has acted reasonably in employing a solicitor to attend to his claim, a subsequent failure by his solicitor to give notice or commence legal proceedings may not, in appropriate circumstances, be visited upon the plaintiff (Tucker v Hamdorf & Anor [2006] WADC 191; Black v City of South Melbourne [1963] VR 34; Hughes v Minister for Health [1999] WASCA 131).
The difficulty here though, in my view, is that there is a paucity of evidence from the plaintiffs relating to the:
(a)nature of instructions given to and advice sought from Alexanders;
(b)nature of the work undertaken by Alexanders;
(c)reasons (if any) why Alexanders did not give notice to (inter alia) the second defendant;
(d)period after 10 October 2005 (when the plaintiffs' solicitors were engaged) and particularly the dates upon which those solicitors made enquiries and sought information in order that they could advise the plaintiffs and the date and nature of each relevant response so as to explain the delay between October 2005 and 15 February 2008 and the date upon which this application was made.
I am left to speculate about these matters. There has been a substantial delay and it is a matter for the plaintiffs to explain, with appropriate specificity what occurred in the relevant period.
Further, there was no affidavit from the first plaintiff to explain the steps taken by him and/or his inability, by reason of his psychological illness or otherwise, to take steps to determine the causes of action to which the plaintiffs might be entitled.
In my view the plaintiffs have not established that the delay in giving the notice and the delay in making this application was occasioned by reasonable cause.
Material prejudice
The plaintiffs bear the ultimate burden to establish the absence of material prejudice. That issue will not however need to be specifically addressed unless the evidence raised the question that material prejudice might exist. This means that the second defendant carries an initial evidentiary onus to raise the question, but once the evidence reached that stage, the ultimate onus to displace the inference of material prejudice would rest upon the prospective plaintiff (Matheson v Commission of Main Roads and Anor [2001] WASCA 402 at 52) in which Murray J cited with approval Baker v Shire of Albany (1994) 14 WAR 46 and Stevens v MVIT [1978] WAR 232. See also Perry v City of Armadale [2004] WASC 167 at 23.
In this case there is no affidavit from the second defendant and counsel for the second defendant submitted in argument that the second defendant did not propose to advance a positive case that it suffered material prejudice, it having in its possession relevant records pertaining to the circumstances in which the incident occurred.
That being the case I am satisfied that the second defendant is not materially prejudiced if leave is given to commence the action before the expiration of six years from 3 December 2002.
Discretion
Notwithstanding that one or more of the pre‑requisites for granting leave have been satisfied, the court must then consider whether the justice of case requires leave to be granted to the plaintiffs to commence action against the second defendant.
To that end it is not necessary for a plaintiff to establish a prima facie case of liability on an application under this section of the Act to extend time to make a claim (Pascoe v Nominal Defendant (Qld) (No 2) [1964] Qd R 373) and it is enough if it appears that the plaintiff's claim is not mala fide, not merely speculative or absurd (Perry v Shire of Armadale (supra) at [30]). The plaintiffs' claim against the second defendant is based upon the assertion that the second defendant as the owner and landlord of the house owed a duty to the plaintiffs to take reasonable care to avoid foreseeable risk of injury to its tenants and visitors to the premises. The critical question is as to what is reasonable (Jones v Bartlett (2000) 205 CLR 166 at 184 – 185) per Gleeson CJ and 213 ‑ 214 per Gummow and Hayne JJ; New South Wales Department of Housing v Hume [2007] NSWCA 69.
The second defendant contends that the plaintiffs have failed to put before the court sufficient material upon which the court can exercise its discretion in their favour (citing Lavita v The Shire of Gingin [2005] WADC 93) on the basis that the proposed cause of action is without strength. In addition it contends that a refusal to exercise the court's discretion in favour of the plaintiffs will not leave the plaintiffs without a capacity to pursue a claim for damages at all because they may proceed against the first defendant which, as I have said, does not oppose this application.
In my view the second defendant owed a duty to take reasonable care to avoid foreseeable risk of injury (Jones v Bartlett (supra)). Arguably there was a foreseeable risk which arose from the failure on the part of the second defendant to instal an RCD at the house. To that end:
(a)In mid‑2002 the second defendant was alerted to issues relating to certain of the electrical work undertaken at the house and a recommendation was made within the second defendant that there be an inspection. It is the case that the electrical inspection and reporting to which reference is made in Exhibits TJPC7 ‑ 12 to the affidavit of Thomas James Patrick Cannon sworn 20 November 2008 related to the electrical work undertaken with respect to alterations to the house. There is however reference to the (then) current standards (as opposed to those applying at the time that the house was constructed) which appears in the email from Fred Holden to Shayne Hills dated 4 July 2002.
(b)Whilst there was no statutory requirement to fit an RCD to the house when it was built the report from Energy Safety WA dated August 2003, concerning the incident (Exhibit TJPC6 to Cannon's first affidavit) makes reference to the fact that the installation of RCDs became mandatory for new installations in 1992 and that Energy Safety WA had continually promoted the fitting of RCDs to domestic electrical lighting and power (socket) circuits (par 6.2).
In New South Wales Department of Housing v Hume (supra) McColl JA said that: "…failure to eliminate a risk that was reasonably foreseeable and preventable is not necessarily negligence. It is necessary to determine what was a reasonable response to that risk." [91]. His Honour there cited Tame v State of New South Wales; Annetts v Australian Stations Pty Ltd[2002] HCA 35.
The fact may well be that there was no statutory obligation on the second defendant to install an RCD in the premises when the house was constructed.
Be that as it may, on the evidence before me, Energy Safety WA has promoted the fitting of RCDs to premises since their use became mandatory for new installations in 1992 – 10 years before the incident.
RCDs or safety switches have an obvious safety utility and in my view it is not speculative or absurd to claim that the second defendant, in owing a duty to the plaintiffs to take reasonable care to avoid foreseeable risk of injury, ought to have assessed the premises which it leased so as to upgrade and make safe in accord with contemporary standards, electrical installations. During the interlocutory and other processes in the litigation it is likely that the relevant circumstances can be examined within which the issue of a reasonable response by the second defendant to the risk may be explored.
Whilst it may be that the plaintiffs may have maintainable causes of action against the first defendant, it is not for me to speculate as to whether the first defendant has any defence to the plaintiffs' claims (or some of them) which may preclude recovery in circumstances which are not common to the position of the second defendant.
In the event I am not persuaded that the plaintiffs' prospective causes of action against the second defendant are speculative or absurd or mala fide. I do consider that the interests of justice require that the plaintiffs have leave to bring and litigate their proposed actions against (inter alia) the second defendant.
As a consequence the plaintiffs' application for leave to institute proceedings against the first and second defendants is granted. I will hear the parties on the issue of costs.
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