Dunn v Comalco Aluminium Limited - [2002] TASSC 14

[2002] TASSC 14

CITATION: Dunn v Comalco Aluminium Limited [2002] TASSC 14

PARTIES:  MARK ROBERT DUNN
  v
  COMALCO ALUMINIUM LIMITED (ACN 009 679 127)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  268/2001
DELIVERED ON:  10 April 2002
DELIVERED AT:  Hobart
HEARING DATES:  17 October 2001; 7 - 8 March and 10 April 2002.
JUDGMENT OF:  Master Holt

CATCHWORDS:

Limitation of actions - Extension of time - Prejudice - Explanation for delay - Exercise of discretion.

Limitation Act 1974 (Tas), s5(3).

Aust Dig Limitation of actions [55]

REPRESENTATION:

Counsel:
             Applicant:  M Wilkins
             Respondent:  M Daly
Solicitors:
             Applicant:  Page Seager
             Respondent:  Zeeman Kable and Page

Judgment Number: [2002] TASSC 14
Number of Paragraphs: 15

Serial No 14/2002
File No 268/2001

MARK ROBERT DUNN v COMALCO ALUMINIUM LIMITED (ACN 009 679 127)

REASONS FOR JUDGMENT MASTER HOLT

10 APRIL 2002

The plaintiff was employed by the defendant as a senior research engineer based in Melbourne, Victoria. His duties involved frequent travel including trips to the defendant's Research and Development Technical Centre at Bell Bay in Tasmania. He claims to have injured his back in November 1995 whilst working at Bell Bay. On 28 March 2001, he issued his writ in Tasmania claiming damages for his back injury. The time for commencement of the action is governed by the Limitation Act 1974, s5, which provides that such actions are to be brought within three years from the date on which the cause of action accrued subject to the Court having the discretion to make an order extending time if in the circumstances of the case it is just and reasonable to do so. The plaintiff seeks an extension of time to the date of the issue of the writ.

The defendant does not contend that the plaintiff lacks a viable case, but has submitted that the plaintiff has not shown that the justice of the case lies with the grant of the extension. In particular, the defendant has submitted that in the circumstances the court should not be satisfied that the delay has not made the chance of a fair trial unlikely and should not be satisfied with the explanation given for delay. The defendant says that having regard to these matters and the general policy behind the enactment of limitation periods, the application should be dismissed.

In order to consider whether delay has resulted in material prejudice to the defendant it is necessary to refer in detail to the plaintiff's account of the incident and its sequelae and the timing and nature of the defendant's investigations to date. The plaintiff's evidence as to the circumstances of the back injury is as follows. He was working on the technical development of composite coated cathodes. A composite coated cathode consisted of a carbon block with a layer of composite (typically of 2.0 cms - 2.5 cms thick) pressed on the upper surface. The production process was for a carbon block to be placed onto a powered roller conveyor at a…

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: [2002] TASSC 14
Decision Date: 10 April 2002

CaseChat Overview and Summary

The Supreme Court of Tasmania heard a case between Mark Robert Dunn, the plaintiff, and Comalco Aluminium Limited, the defendant. The plaintiff, a senior research engineer, alleged that he injured his back while working at the defendant's Research and Development Technical Centre in Bell Bay, Tasmania, in November 1995. He issued a writ on 28 March 2001, claiming damages for his back injury. The Limitation Act 1974, s5 governs the time for the commencement of such actions, providing that they are to be brought within three years from the date on which the cause of action accrued, subject to the Court having the discretion to extend time if it is just and reasonable to do so. The plaintiff sought an extension of time to the date of the issue of the writ, and the defendant did not contest the viability of the plaintiff's case but argued that the plaintiff had not shown that the justice of the case lies with the grant of the extension.

The court considered the plaintiff's account of the incident and its aftermath and the timing and nature of the defendant's investigations to date. The plaintiff stated that he was assisting an operator in manoeuvring a carbon block into position on a conveyor when he felt a popping sensation in his back. Although the plaintiff was aware of his employer's requirement to report accidents, he did not mention the incident at the time and continued working. His back pain gradually increased, and he consulted a doctor in April 1996, who referred him to a neurosurgeon who recommended conservative treatment. The plaintiff took about ten weeks off work on sick leave at this time. In January 1997, the plaintiff first attributed his back injury to the November 1995 incident. In February 1997, the plaintiff was reviewed by his neurosurgeon, who arranged for an MRI investigation which showed disc protrusions at L4/L5 and L5/S1 levels, and a spinal fusion and laminectomy was recommended. The plaintiff submitted an accident report form to the defendant on 15 March 1997, and the surgery involved two procedures, the first on 20 March 1997, and the second on 27 March 1997, followed by hospitalisation for about 20 days and a lengthy recuperation period. The plaintiff's hospital expenses were covered by Medibank Private. On 14 August 1997, the plaintiff submitted a Victorian WorkCover claim, and thereafter all of the plaintiff's medical expenses were reassigned to WorkCover with Medibank Private, seeking reimbursement for past medical expenses from the WorkCover scheme.

The court found that there was cause for the defendant to consider the possibility that a claim for damages would be made when they received the plaintiff's statement in September 1997. The plaintiff did not consult a solicitor about the matter until March 1999. The solicitor prepared the application which was served on 6 December 1999. This was the first definite notification which the defendant had of an intention to commence an action for damages. The application was rejected by WorkCover in May 2000, and in August 2000, an application for a review of that determination was filed in the County Court at Melbourne. The plaintiff's Victorian solicitor in January 2000 came to the view that the application had been properly rejected. The plaintiff became redundant in or after January 2000. Advice was obtained from counsel, and a second Serious Injury Application was served in August 2000. The second application was rejected in February 2001, with WorkCover advising the plaintiff's Victorian solicitor that a decision delivered by the High Court of Australia on 21 June 2000 meant that Victorian law was not to be applied, but instead the law of the place where the incident occurred governed the situation. The plaintiff's Victorian solicitor had not heard of the High Court decision and immediately requested an opinion from counsel, who on 21 March 2001 had recommended that Tasmanian lawyers be instructed. On the same day, those instructions were issued, and the writ and extension of time application were filed on 28 March 2001.

The court found that although there was some general prejudice caused to the defendant by reason of the delay, the delay had not made the chances of a fair trial unlikely. The problems with the attribution of the injury to the work incident pertained regardless of any lengthy effluxion of time. The prospect of canvassing work colleagues and sporting and other associates of the plaintiff, eliciting useful information about other possible causes of the back injury would normally be expected to rapidly reduce with the passage of time and be very much diminished even after the passing of only a few weeks or months. This type of prejudice is attributable to a failure to promptly report incidents or accidents to those persons sought to be made accountable and not a prejudice usually avoided by the prompt institution of court proceedings. The court also found that the plaintiff's explanation for delay was not reasonable, but the delay up until March 1999 for which the plaintiff was accountable was a factor of importance. However, it was not necessarily a disentitling factor. The rationales for the enactment of limitation periods were important considerations, but the court attached the greatest weight to the lack of any material prejudice that the justice of the case requires the grant of the extension sought. The court granted the plaintiff's application for an extension of time to the date of the issue of the writ, namely, 28 March 2001.

Orders