Dunn v Comalco Aluminium Limited
[2002] TASSC 14
•10 April 2002
[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 loading station. A former would be lowered by a crane onto the block fitting snugly around the sides of the block and protruding above the top of the block to form the sides for the mould. Once the former was in place the block and the former would be advanced along the roller conveyor to a filling station where a wire grid would be manually placed over the top of the block dividing it into areas approximately 15 cms x 15 cms. The composite would then be divided into portions having a mass of approximately 1.65 kgs each. Each portion would be poured by hand, one portion for each square in the grid. There were approximately 60 squares to be filled. Upon completion of the filling process the grid would be removed, a layer of plastic placed over the composite and the product advanced along the roller conveyor to the press. After pressing the product would then proceed along the roller conveyor to the unloading station where the plastic sheet and the former would be removed by an overhead crane with the block then being transferred by a forklift truck to an oven for overnight curing. After curing metal collector bars providing a pathway to complete the electrical circuit for an aluminium reduction cell would be installed. The tests were expensive and timing was of the essence in undertaking the process. The composite material was a resin bonded refractory, containing graphite titanium diboride particles together with binding cement being a highly toxic combination of novolac resin and furfuryl alcohol. The manufacturing cost of a batch of composite was approximately $11,000. Immediately upon preparation the composite had the appearance of coarse damp sand. It had to be applied to a carbon block preheated to 45 degrees celsius within 15 minutes of preparation. If the batch was allowed to cool for any longer than this time it became unusable. The trial was being conducted in a building adjacent to the defendant's large smelter at Bell Bay. The plaintiff had the assistance of several experienced and multi-skilled operators in undertaking the production trials. Although in the general run of things the plaintiff was primarily involved in desk work when a trial was being undertaken he would involve himself in the handling tasks being performed by the operators.
On the day of the incident a carbon block pre-heated to 45 degrees celsius had just been removed from the oven by a forklift truck driver known to the plaintiff as "Colin" and placed on the roller conveyor at the loading station. The block had dimensions of approximately 2,240 mm x 580 mm x 310 mm and had a mass of approximately 500 kgs. Although the roller conveyor was equipped at the loading station with stoppers which could be raised and adjusted to ensure that items deposited on the roller conveyor by a forklift truck could be properly centred, the operators did not make use of the stoppers. The block had not been properly centred and the forklift had been driven out of the research building to another area, presumably to undertake other work at the defendant's premises. The crane operator lowered the former, but because of the inappropriate positioning of the block it snagged on the side of the roller conveyor. Meanwhile, the batch of composite had been prepared and the carbon block was cooling down. Urgent action was required. An operator known to the plaintiff as "Graham" asked the plaintiff to help him push the block across the conveyor into a position where the former could be lowered over it. The conveyor was about 1 metre above floor level and had a trip wire running along its side. To push the block Graham and the plaintiff had to stand a little back from the conveyor, bend low at the waste and reach the block with extended arms. The plaintiff said in his affidavit:
"As I did this I heard and felt a popping sensation coming from my back."
The plaintiff said that although having worked for the defendant for several years and although being involved from time to time working with operators, he had received no instruction as to correct lifting and pushing techniques nor had he received any warnings, directions or instructions in relation to avoiding injury which might be caused by the manual manoeuvring of heavy objects.
The plaintiff was aware of his employer's requirement that all accidents be formally reported. He was unaware, however, that he had suffered any significant injury and gave no evidence of even mentioning the matter at the time. He continued working, but following the incident, his back pain gradually increased to such an extent that in January 1996 (a month or two after the incident),. he had to spend an entire weekend in bed. He had treatment from a chiropractor between January and April 1996 on a weekly basis, but there is no evidence that he claimed reimbursement for the cost of so doing from his employer. By April 1996 pain was radiating into his legs and he was having sensations of pins and needles in both feet. He consulted a doctor and was prescribed anti- inflammatories and muscle relaxant tablets. A CT scan of his lumbar spine was performed on 1 May 1996 showing abnormalities at L4/L5 and L5/S1. He was referred to a neurosurgeon who recommended conservative treatment consisting of bed rest and short daily walks. He took about ten weeks off work on sick leave at this time. He told his manager, Mr Leslie Edwards prior to taking sick leave that he was having back problems. Mr Edwards said in a statement given to loss adjusters engaged on behalf of the defendant in September 1997 that the plaintiff did not attribute his back condition to his employment. The plaintiff, although not remembering in any detail his discussions with Mr Edwards was unable to dispute this and I infer that no such attribution was made because if it had been it is likely that the incident would have been formally reported, the plaintiff having said that it was his understanding that this was a requirement. The plaintiff returned to work in about July 1996 initially on a part-time basis. However, by January 1997 he was again experiencing significant back symptoms. The defendant's general manager, Mr Jeffrey Keniry, was aware of the plaintiff's back problems. In a statement given to the loss adjusters in about September 1997, Mr Keniry said that in January 1997 in the course of a general conversation the plaintiff attributed his back injury to the November 1995 incident. The plaintiff has not said that he made any earlier attribution of the cause of the injury to his employer and so I regard January 1997 as the point in time at which the defendant first had any reason to investigate the matter.
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. A spinal fusion and laminectomy was recommended. On 15 March 1997 the plaintiff submitted an accident report form to the defendant. The surgery involved two procedures, the first on 20 March 1997 and the second on 27 March 1997. This was followed by hospitalisation for about 20 days and thereafter a lengthy recuperation period. Although the plaintiff's sick leave entitlements had been exhausted the defendant continued to pay the plaintiff during his absence. 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.
Loss adjusters were instructed and on 10 September 1997, they submitted a report to the Manager of the WorkCover scheme which contained a statement signed by the plaintiff. The statement indicated that it was common practice for the position of carbon blocks to be manually adjusted on the roller conveyor immediately upon their deposit there by the forklift driver and this exercise, although not involving great strength, did involve a need to adopt an awkward and inappropriate posture. The statement said, inter alia:
"Neither the forklift transportation, nor the powered roller conveyor, requires any manual intervention. At the point where both methods meet ie., the forklift has loaded the laminated brick on the roller conveyor, there is a requirement [that] the laminated brick is positioned precisely in the centre of the roller, so that a mould box can be positioned over the brick. There is a requirement therefore for the laminated brick to be physically pushed into the correct position. Being carbon on steel rollers, this does not require extreme exertion, as the laminated brick moves fairly easily.
Around late November or early December, 1995, I was working at the Research and Technology Centre, adjacent to the Bell Bay Smelter in Tasmania. The forklift had placed a laminated brick, measuring 2.4M x 600mm x 300mm, weighing approximately 500Kgs., on the roller conveyor as described above.
I then pushed against this laminated brick in order to centre it as above, using both hands with my body leaning forward, and one leg to the rear for stability. I started to move the brick, when suddenly I head a distinct pop, and the sound seemed to have come from me. I did not feel anything out of the ordinary, and kept on working as normal."
In my opinion, having regard to the severity of the plaintiff's back condition and the content of the statement there was cause at the time of receipt of this statement for the defendant to consider the possibility that a claim for damages would be made.
The plaintiff did not consult a solicitor about the matter until March 1999. The solicitor was based in Victoria and assumed that an action at common law would proceed under Victorian law. According to the solicitor's affidavit, to commence an action for damages in Victoria the plaintiff had to first "obtain a Serious Injury Certificate from the Victorian WorkCover Authority". In her affidavit the plaintiff's Victorian solicitor said:
"It was part of the Serious Injury Application that an Engineer's report on liability be served with the accompanying Affidavit material".
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. She said in her affidavit:
"It was obvious to me at this point in time that the Plaintiff would not succeed in his Serious Injury Review to the County Court by way of Originating Motion because at the time the Application was served, the Plaintiff was in employment."
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. In other words, the Victorian statutory provisions were irrelevant to the plaintiff's proposed claim and it was a pointless exercise to apply for a Serious Injury Certificate. See John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503. Apparently, this was the first time that the plaintiff's Victorian solicitor had heard of the High Court decision. She immediately requested an opinion from counsel who on 21 March 2001 had recommended that Tasmanian lawyers be instructed. On the same day those instructions issued and the writ and extension of time application were filed on 28 March 2001. It was at around this time that the plaintiff's Victorian solicitor first appreciated the urgency of the matter. Up until then she had assumed that the Victorian law applied under which, subject to the issue of a Serious Injury Certificate common law proceedings could be commenced as of right up until the expiry of six years from when the plaintiff first knew that he had suffered personal injury resulting from the defendant's act or omission. See Limitation of Actions Act 1958 (Vic), s5(1A).
It is apparent from the signed statement that the plaintiff gave to loss adjusters in September 1997 that he believed that it was common practice at the time of the incident for the carbon block to be manually pushed into position after deposit of it onto the roller conveyor by a forklift truck. He asserts that the roller conveyor was only about 1 metre above floor level and that because of this feature it was necessary to lean forward to push the block into position. He said in his affidavit sworn 5 November 2001 that he was assisting an experienced operator named "Graham" in manoeuvring the block into position. The defendant has not suggested that because of the passage of time detail as to the set up of the work place and the system of work at the time of the alleged incident cannot now be obtained. There is no evidence from the defendant that "Graham" or other operators working in the Research and Technology Development Centre at the time cannot now be found or cannot now recall the work systems in place at the time. There is no evidence that the defendant no longer has access to records of any information, instruction, training or warnings given to the plaintiff concerning the manual handling of heavy objects. As was said by Toohey J and Gummow J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547:
"There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant. Where prejudice is alleged by reason of the effluxion of time, the position is as stated by Gowans J in Cowie v State Electricity Commission (Vict) in a passage which was endorsed by Gibbs J in Campbell v United Pacific Transport Pty Ltd:
'It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that these facts do not amount to material prejudice.'"
It may be that there are many activities which could result in a similar injury to that suffered by the plaintiff unrelated to the work environment. The plaintiff made no comment on the day he felt the "popping sensation" in his back. He continued working with the onset of back pain being gradual over the next few months. The first attribution communicated by the plaintiff of his back pain to his employment was not until January 1997, a little over a year after the incident. The defendant, regardless of the possibility of a common law damages claim being commenced had cause to consider whether or not the back injury was attributable to the plaintiff's employment at about that time, or at the latest by August 1997 when a formal claim for WorkCover payments was made. Included in the loss adjuster's report was a statement by the manager of the cathode cell development section Mr Edwards that up until 1997 the plaintiff occasionally discussed his back injury with Mr Edwards and "had always maintained that he didn't know what the cause was". Included in the General Manager's, Mr Keniry's statement given to the loss adjusters in 1997 was an assertion that in mid to late 1996 he had a discussion with the plaintiff about the cause of the back problems and ended that discussion believing that regular exercising by the plaintiff on a trampoline was the cause of the condition. The defendant has not suggested that this evidence does not remain available. Of course the ability of these witnesses to be more specific may well have diminished as they were not asked to recall the discussions until almost two years after the alleged incident.
I have no doubt that some general prejudice has been caused to the defendant by reason of the delay. As Toohey and Gummow JJ said in Brisbane South Regional Health Authority v Taylor (supra) at 550:
"The real question is whether the delay has made the chances of a fair trial unlikely."
I do not think that it has. I do not think that the defendant would be in a much better position even if proceedings had been instituted within a few months of the incident complained of. I have no reason to believe that evidence about the work place or the work systems would have been significantly better, had there been no delay. The problems with the attribution of the injury to the work incident pertain regardless of any lengthy effluxion of time. The prospect of the canvassing of 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 is a feature which will exist in many cases well before limitation periods have expired. 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. In the general run of things writs for damages for personal injuries would be regarded as having been issued promptly if issued within a few months following the occurrence of the compensable incident.
Insofar as the explanation for delay is concerned, I do not consider it to have been reasonable for the plaintiff have failed to take legal advice until March 1999. By May 1996, within a few months of the incident, the plaintiff was suffering severe back pain radiating down into both legs. He needed medication and a CT scan confirmed spinal damage. He was off work for ten weeks starting in May 1996 because of his back condition. By February 1997 he had been advised to have surgery. It was major surgery occasioning a hospital stay of about 20 days and twelve months off work. He was a well educated married man with two small children. Although he was not significantly out-of-pocket he had good reason to be concerned about his career and financial future. After the plaintiff first saw his Victorian solicitor in March 1999 progress was slow, but the plaintiff remained in paid employment with the defendant until at least January 2000. By this time he had submitted his application for a Serious Injury Certificate and was awaiting the outcome. A decision on the application was not given until May 2000. Within a short time after that review proceedings were commenced in the County Court and then another application for a Serious Injury Certificate was lodged on 30 August 2000 which was not determined until late February 2001. The plaintiff had properly apprised his solicitor of the relevant facts and circumstances within his knowledge. Applications for a Serious Injury Certificate sat with the administrators of the WorkCare scheme for long periods of time without being determined. He had no reason to believe that his solicitor was being dilatory and good reason to assume that if time limits applied and were approaching he would be appropriately informed. I do not consider that the plaintiff should be saddled with responsibility for his solicitor's failure to appreciate earlier that Tasmanian law applied (Hall v Nominal Defendant (1967 - 68) 117 CLR 423 at 435). The delay up until March 1999 for which I consider the plaintiff to be accountable is a factor of importance. It is not necessarily, however, a disentitling factor (Knight v Smith (1975) Tas SR 83 at 91).
The rationales for the enactment of limitation periods as described by McHugh J in Brisbane South Regional Health Authority v Taylor (supra) at 552 and following are important considerations. As well as referring to the propensity of delay to cause relevant evidence to be lost and a general diminution in the quality of justice McHugh J referred to the oppression of allowing a defendant to be sued long after the circumstances which gave rise to the action have passed and the importance of defendants being able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. He also referred to the public interest in having disputes settled as quickly as possible. I have already determined that delay has not made the chance of a fair trial unlikely. As to the other rationales I consider them to be of lesser weight than usual in the particular circumstances of this case. The plaintiff's employer was Victorian based and by the lodgment of the Serious Injury Certificate applications must have known that the intention was to commence proceedings in Victoria. In that State the limitation period was six years and the defendant could not have been sure that Victorian proceedings were unavailable until after the June 2000 decision in John Pfeiffer Pty Limited v Rogerson (supra), was published.
I take the view attaching in this case the greatest weight to the lack of any material prejudice that the justice of the case requires the grant of the extension sought. There will be an order that the time for commencement of the proceedings is extended to the date of the issue of the writ, namely, 28 March 2001.
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