Eaton v Electricity Networks Corporation t/as Western Power - [2024] WADC 59

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   EATON -v- ELECTRICITY NETWORKS CORPORATION t/as WESTERN POWER [2024] WADC 59
CORAM:   DEPUTY REGISTRAR HARMAN
HEARD:   29 MAY 2024
DELIVERED          :   1 AUGUST 2024
FILE NO/S:   CIV 2627 of 2021
BETWEEN:   PETER HARRY EATON
Plaintiff
AND
ELECTRICITY NETWORKS CORPORATION t/as WESTERN POWER
Defendant

Catchwords:

Limitation Act 2005 (WA) s 39 - Application to extend time to commence action against additional proposed defendants - Turns on its facts

Legislation:

Limitation Act 2005 (WA)

Result:

Application successful

Representation:

Counsel:

Plaintiff	:	Mr D R Clyne
Defendant	:	No appearance
First named proposed defendant	:	Mr C Russell
Second named proposed defendant	:	Mr C C Rimmer
Third named proposed defendant	:	Mr J Walker

Solicitors:

Plaintiff	:	Foyle Legal
Defendant	:	DLA Piper Australia - Perth
First named proposed defendant	:	Wotton + Kearney
Second named proposed defendant	:	Sparke Helmore
Third named proposed defendant	:	Gilchrist Connell

Case(s) referred to in decision(s):

Nil

DEPUTY REGISTRAR HARMAN:

The plaintiff pleads that on 5 August 2018 he was injured by electricity when he made contact with an electric street light pole located on the verge at the front of his residence.
The defendant is an electricity network operator that trades as Western Power. By the defence that it served on or about 23 November 2022, it accepts that it is responsible for the pole and that on 5 August 2018 the pole had been electrified. It alleges that Ventia Utility Services Pty Ltd had been engaged to undertake tasks on its network and that Ventia Utility Services had in turn, engaged Power on Cabling Pty Ltd for that purpose. It pleads that the pole had been electrified due to the conduct of an employee of Power on Cabling in undertaking work some three months prior to the plaintiff's alleged injury.
By chamber summons issued on 14 March 2023 the plaintiff seeks leave to commence an action for damages against Ventia Utility Services Pty Ltd and Power on Cabling Pty Ltd.
Since the application was made, Power on Cabling informed the plaintiff's solicitor that the person identified by the defendant as its employee had actually been engaged by Golden Code Pty Ltd.
On 3 August 2023 the application was amended to add Golden Code Pty Ltd as an entity for which the plaintiff seeks such leave. It has been further amended to propose that upon leave being granted each of the entities be added to the action as defendants. The reamended application is not presented with a proposed amended writ or any proposed additional pleading.
Prior to the hearing the proposed defendants had been served, given the opportunity to file affidavits, provide written submissions and be heard.
Although it is inappropriate to apply by interlocutory application, at the hearing there was no submission that any of the proposed defendants had thereby been disadvantaged.
The only affidavits filed are of the plaintiff; of Anna Elizabeth Le Roux, the solicitor that currently has the conduct of his file; and of Christian John Foyle, her supervisor. Some business records of the defendant, copies of which it provided to the plaintiff and to Nicholas Lindsay, his former solicitor are attached to the affidavits of the plaintiff and of Le Roux.
Section 39 of the Limitation Act 2005 (WA) provides in part as follows:
(1)A plaintiff may apply to a court for leave to commence an action for damages relating to a personal injury to a person even though the limitation period provided for under this Act has expired.
…
(3)On an application a court may extend the time in which the action can be commenced if the court is satisfied that, when the limitation period expired, the person to whom the cause of action accrues ‑
(a)was not aware of the physical cause of the … injury;
(b)was aware of the physical cause of the … injury but was not aware that the … injury was attributable to the conduct of a person; or
(c)was aware of the physical cause of the … injury and that the … injury was attributable to the conduct of a person but after reasonable enquiry, had been unable to establish that person's identity.
(4)On an application a court may extend the time in which the action can be commenced up to three years from when a person to whom the cause of action accrues became aware, or ought reasonably to have become aware ‑
(a)of the physical cause of the … injury;
(b)that the … injury was attributable to the conduct of a person (whether a defendant or not); and
(c)of the identity of the person mentioned in paragraph (b).
Golden Code does not oppose the application.
The plaintiff submits that because he has always been aware that he was electrocuted when he came into contact with a Western Power pole, s 39(3)(a) does not apply, but that thereby he satisfies the first part of s 39(3)(b).
Each of Ventia Utility Services and Power on Cabling submitted that as by issue of the writ the plaintiff reveals that he had been aware that his injury was attributable to the conduct of a person, s 39(3)(b) would not apply. They submitted that the application would properly be considered under s 39(3)(c).
By his affidavit the plaintiff outlines some incidents of his engagement with the defendant both prior and subsequent to 5 August 2018. He deposes that in January 2019 he had requested from the defendant copies of maintenance and fault reports relating to the pole.
He states that he had not conducted any other investigation of the identity of any other person to whom his injury was attributable because it was obvious to him that the defendant was the person to whom his injury was attributable.
That statement appears in his affidavit following his reference to receipt of two documents from the defendant in response to his request and prior to his deposition that on 27 March 2019 he engaged solicitors.
The plaintiff deposes that from his reading of the documents provided by the defendant to Lindsay, he was unable to identify that his injury was attributable to the conduct of any person other than the defendant.
Although he does not depose to the date or the period during which he read the documents, the next paragraph of his affidavit is to the effect that on or about 27 April 2021 he was advised that any action for damages was subject to a limitation period and that he should commence proceedings against the defendant prior to 4 August 2021. It is open to consider that the plaintiff's reading of the documents had been undertaken prior to 27 April 2021.
The plaintiff's depositions are sufficient to establish that on 4 August 2021 he was not aware that his injury had been attributable to the conduct of any of the proposed defendants.
Le Roux deposes that in January 2022 she took over the conduct of the file from Lindsay and Foyle. She deposes that her review of the file reveals that on or about 28 April 2020, Lindsay had received the copies of the defendant's documents that are the subject of the plaintiff's deposition. She is unable to establish when Lindsay and/or Foyle had considered those documents.
Le Roux deposes that it had been Foyle that had informed the plaintiff that his claim for damages was subject to the limitation period and that based on the defendant's documents, an action should be commenced against the defendant prior to 4 August 2021.
That deposition suggests that by some means she is aware that Foyle had somehow considered the content of the documents. Foyle has provided an affidavit in which he has not deposed to either the communication with the plaintiff to which Le Roux refers or to any engagement with any of the documents.
It is safe to conclude that if either Lindsay or Foyle had read some or all the documents, there had neither been any record made of the date or the period of time over which that had occurred nor the result of the exercise.
Although due to the failure of either Lindsay or Foyle to depose, there is reason to be circumspect; there is no reason to bring some predisposition to the task of considering whether the court could be satisfied that on 4 August 2021 either of them had been aware that the plaintiff's injury had been attributable to conduct of any of the proposed defendants.
The writ issued on 19 July 2021 some two weeks prior to the expiration of the limitation period. According to its terms, there is no reason to consider that on the date that it issued, either the plaintiff or his solicitors had been aware that the plaintiff's injury had been attributable to anyone other than the defendant.
A straightforward conclusion open on the application is that if by 4 August 2021, had either of Lindsay or Foyle been otherwise aware, they would have either immediately sought instructions and issued an amended writ or perhaps, depending upon the time of day, simply taken the second step. There is no reason to consider otherwise.
By the terms of the writ the defendant is identified as a person against whom the plaintiff maintains causes of action. The plaintiff deposes that the first time that he became aware that his injury had been attributed by anyone to someone other than the defendant had been upon being informed by Le Roux of content of the defence. He deposes that he was not aware that the defendant used subcontractors.
On the basis of the information provided to the plaintiff by the terms of the defence, the conduct of the relevant employee of Power on Cabling is identifiable. As by both that conduct and the defendant's assessment of it, the competence of that employee and of Power on Cabling is opened for consideration, so too is the determination of Ventia Utility Services that it would engage Power on Cabling. The allegations made by the defendant in its defence are sufficient to countenance that the plaintiff has causes of action against each of Ventia Utility Services and Power on Cabling.
The legislature has provided limited scope to extend time for commencement of an action. There is no reason to conclude that because the plaintiff has either issued a writ or obtains leave to commence an action against a contended tortfeasor he is precluded from applying for leave in relation to others. On a plain reading, serial reliance upon s 39(3)(b) provides scope for the plaintiff to obtain leave to commence an action against each of the proposed defendants.
Engagement with s 39(3)(c) depends upon the plaintiff being aware on 4 August 2021 that his injury was attributable to someone other than the defendant. As neither he nor his solicitors had been so aware, s 39(3)(c) does not apply.
The plaintiff satisfies the terms of s 39(3)(b) in relation to each of Ventia Utility Services and Power on Cabling. But for the concession made by Golden Code, he would satisfy the terms of s 39(3)(b) as the application relates to Golden Code.
Section 39(4) imposes an objective test to be applied in determining the commencement date of a period of time for bringing an action against any of the proposed defendants.
Although there is no evidence, it is evident that Le Roux signed the pleading that was filed on 31 May 2022. It renders cases that accord with the plaintiff's depositions.
The cases pleaded are under the Occupiers' Liability Act 1985 (WA) and in breach of duty of care that are expressed without reference to the condition of any component of the pole. The only attribution of the reason for the plaintiff's injury made in the pleading is to the network: specifically, to an unspecified underground cable fault to which the defendant had referred in its communication of 6 May 2018 to the plaintiff's wife in response to a report. The pleading does not draw upon information contained in a report of a person described by the plaintiff as the defendant's second investigating officer, Marc Mcpherson. It was one of the documents provided by the defendant to Lindsay. By the report Mcpherson attributes the reason for the plaintiff's electrocution to 'open circuit neutral'. Mcpherson describes himself in the report as an employee of the defendant and Network Officer.
Le Roux does not depose to whether, in the course of drafting the statement of claim, she had either read or considered the content of the documents provided by the defendant to Lindsay. She deposes that when she read the defence, it was the first that she became aware that the plaintiff's injury may be attributable to the conduct of someone other than the defendant.
Le Roux deposes that subsequent to providing advice to the plaintiff regarding the need to apply under s 39, she noted that Ventia is mentioned in one of the documents provided by the defendant to Lindsay. It is an email that had been sent by the defendant on 5 April 2019 in response to a request issued by an inspector of the Department of Mines, Industry Regulation and Safety.
The tenor of the request suggests that it had been issued in standard form attuned to the proposition that at the time that an incident within the purview of the Department had occurred, a task that would account for the incident was then being undertaken. That conclusion is suggested by the specification of the incident by the inspector as the electrocution of the plaintiff and by the following parts of the request:
Names and position of Senior Manager responsible for the employees and tasks undertaken at the time of the incident.
Copies of work procedures, JRA's drawings specifications for the tasks being undertaken at the time of the incident.
The response of the defendant to the first of those requests provides the name of a person that it designates as 'Ventia Operations Manager'. It is the only part of the document that mentions Ventia.
The response to the second is as follows:
There was no work procedure nor drawing specifications issued specifically for the tasks being undertaken.
It is only the response to the second request that expressly engages the proposition that a task was being undertaken at the relevant time. No such task is specified elsewhere in the response or revealed in the content of either the balance of the documents provided by the defendant to Lindsay or those it provided to the plaintiff.
The plaintiff's solicitor deposes that she could not find any other reference to Ventia or any reference to Power on Cabling in the documents that had been provided by the defendant to Lindsay.
That assessment overlooks the fact that other documents mention the word 'Ventia'. They are a series of photographs that display a tag. The purpose of the tag is revealed by printed text at the top of the tag 'Out of service' and 'Not to be Operated'. Below the printed word 'Defects', by handwriting the words 'Cable fault testing in progress' have been inserted in space that would be taken to provide for recording such information. Above the printed words 'Company name', again by hand, in such a space, 'POC Ventia' has been recorded and above the printed provision for a date/time, in a similar space and by hand, '29/4/18'.
From the photographs it is apparent that upon viewing the tag an observer would be informed of what it records and that the information relates to the object to which it is attached. Further, that whoever had written on the tag had specified that the reason for doing so had been that on 29 April 2018 the object to which it had been attached was out of service due to cable fault testing being in progress.
Reference is made to what would be taken to be the same tag in another of the documents. It is an email of Andy Sullivan who identifies himself as Project Network Officer Operational Maintenance Western Power, that was sent on 7 August 2018. It is in part as follows:
Earlier today my crew and I attended the above incident and found the following: ‑
The neutral had been disconnected at the Ballajura shopping centre LVDF by unknown as not tagged out.
There is also an Active disconnected with an Out of Service Tag attached by [redacted] dated 29/04/2018 due to cable fault testing in progress.
After re‑terminating the neutral the circuit was re‑energised with 0 volts found Steel Streetlight Pole to independent Earth and 1 volt neutral to independent earth.
As the Streetlight circuit supply and cable routes are incorrect on our system we have also created INCD ‑ 619334 ‑ k to locate cable routes and provided Data corrections.
The Cut‑out and TPS were also replaced to bring them up to current standards.
…
There is no doubt that Sullivan had attended the facility at which the tag was located as a consequence of the electrocution of the plaintiff. Sullivan describes the landscape as he found it. No part of the email expresses that any feature of the landscape had accounted for electrification of the pole with which the plaintiff came into contact.
Be that as it may, the report records tasks that Sullivan undertook, the first to re‑terminate the untagged neutral and test, the second to correct the defendant's records of cable routes, and the third to replace out of standard equipment. Implicitly the result of testing the reconnected negative had been satisfactory.
Sullivan reveals nothing of the condition of the disconnected active cable that was tagged, either as he found it or as he left it. Implicitly whatever he had found its condition to be, had been of no consequence. Implicitly he had either left it as he had found it or what he did with it was not worth the pencil.
Returning to the responses made by the defendant to the requests for information put to it by the inspector; whilst there is scope to consider that 'POC Ventia' recorded on the tag may somehow be connected to the Ventia Operations Manager, objectively the information recorded on the tag whether or not it is considered in light of the content of Sullivan's email, provides no reason to consider that unspecified tasks being undertaken at the time that the plaintiff was electrocuted, had somehow been accounted for by a task performed some three months earlier.
For a reader to conclude that the defendant's nomination of Ventia Operations Manager as the senior manager responsible for the employees and tasks undertaken at the time of the incident, had been accounted for by a task that had been undertaken some three months prior to the time of the incident the subject of the inspector's interest, speaks for the proposition that the defendant had been aware that during the course of the inspector's inquiry, it would have the opportunity to justify having done so. There is no reason to consider that a reader would so infer.
The fact that Le Roux refers to the email from the defendant in response to the inspector and no more than notes that Ventia is mentioned is unremarkable. Objectively there is no reason to consider that prior to service of the defence, the reference to Ventia had called for consideration.
Returning to the report of Mcpherson and his attribution of the cause of the incident to 'open circuit neutral', it is open to consider that it is consistent with the content of Sullivan's email that relates to the untagged neutral.
Objectively, there is no reason for a reader of all the documents provided by the defendant to Lindsay to connect any task undertaken by Ventia Utility Services with the time that the plaintiff was injured.
Accordingly, regardless whether at any time, either the plaintiff or his solicitors had given the level of attention to the content of the relevant documents that it may be considered that they ought, they would not thereby have become aware that the plaintiff's injury was attributable to the conduct of any of the proposed defendants. It was only upon reading the terms of the defence that the plaintiff and his solicitors became aware of information that his injury was attributable to the conduct of the proposed defendants.

And it is worth noting that it is only upon a superficial reading of the defence that the connection would be established.
There is no reason to consider that at some earlier time either the plaintiff or his solicitors ought to have become aware of information that his injury was attributable to conduct of the proposed defendants.
If it is considered that an assessment of the material provided in support of the application had allowed for a different conclusion, then it would be appropriate to reflect upon action that had been open to the plaintiff to take in order to ascertain whether Ventia Utility Services was a person to whom the physical cause of the plaintiff's injury was attributable.
Before dealing with that prospect, counsel for each of Ventia Utility Services and Power on Cabling produced submissions along the lines that it is open to consider that there was little material provided in support of the application that would indicate that the plaintiff and his solicitors had proceeded to issue the writ and to engage in the litigation in a timely way. There is nothing that would turn upon a finding to that effect in relation to the period prior to issue of the writ other than the proposition that as time passed, there had been increasingly less time in which to engage in any course other than to issue the writ. As for the period of time that elapsed prior to issue of the statement of claim and that generated by the failure of the plaintiff to require the defendant to file a defence, the effluxion of time would impact on the plaintiff. There is no evidence that would support the conclusion that any of the proposed defendants have been disadvantaged. Whilst it would be open to the court to draw an inference, the failure of each of the proposed defendants to depose may also be the subject of inference.
It was submitted that it had been open to the plaintiff to bring an action for pre‑action discovery. The submission is compromised by what is revealed upon analysis of the content of the documents provided by the defendant. It reveals that the defendant's nomination of an officer of Ventia Utility Services in a context that would not suggest any more than his engagement in some management structure of the defendant and that it had engaged in a task some three months prior to the plaintiff's injury that had no consequence. There had been nothing presented to the plaintiff in the context that existed prior to service of the defence that would detract from his belief that the defendant was responsible for his injury.
In that context, had his solicitors given consideration to bringing such an action, the dominant consideration would be whether the costs of the exercise and the likely order for costs of the action, could be justified. Objectively the cost considerations would tell against the proposition that undertaking the exercise would be reasonable.
Alternatively, the plaintiff may have chosen to engage with the defendant in relation to the prospect that Ventia Utility Services had been a person to whom the physical cause of his injury was attributable. The history of the plaintiff's solicitors' attempts to draw responses from the defendant illustrate that there is no obligation on the defendant to respond to any enquiry. That the defence was served considerably later than the time specified in the rules is at least consistent with its earlier failures to respond.
Obtaining documents from the defendant under the Freedom of Information Act 1992 (WA), had been a different matter.
Alternatively, the plaintiff could have appointed his own investigator or potential expert witness. Based upon the terms by which the cases that he puts against the defendant are expressed, objectively there is no reason to consider that for the purposes of pleading, it had been necessary for the plaintiff to undertake any investigation at all.
The significance of that observation is that recovery of the cost of services rendered or generated by an action under the usual order for costs depends upon satisfaction of a test so expressed. It is only the test of the quantum of the fee for a service found to have been necessarily provided that engages reasonableness. For the plaintiff to engage someone to conduct an investigation would put recovery of the cost of the exercise at risk in circumstances where there is reason to consider that the cost would be significant.
In the case brought in the application against Golden Code the information relating to its involvement having been received by the plaintiff's solicitor on 24 July 2023, it is appropriate that it is the date from which an extension of time will be granted. As for Ventia Utility Services and Power on Cabling, it is appropriate to consider that the date for commencement of the limitation period generated upon the plaintiff's success in the application is 23 November 2022: the date of service of the defence.
As there is neither any proposed amended writ nor additional pleading, the balance of the application will stand adjourned sine die.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
TA
Court Officer
31 JULY 2024