Farley v Websters Ltd - [2000] TASSC 91

[2000] TASSC 91

CITATION: Farley v Websters Ltd [2000] TASSC 91

PARTIES: FARLEY, David John

v
WEBSTERS LIMITED

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  M18/1999
DELIVERED ON:  14 July 2000
DELIVERED AT:  Hobart
HEARING DATE:  25 May, 23, 30 June 2000
JUDGMENT OF:  Master Holt

CATCHWORDS:

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

Workers Rehabilitation and Compensation Act 1988 (Tas), s135(2).

Glover v Southern Cross Homes (Tasmania) Inc 111/1997; Bluett v Wedd Cannon Pty Ltd [1999] TASSC 23; Edwards v State of Tasmania [2000] TASSC 76; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, referred to.
Aust Dig Limitation of Actions [55]

REPRESENTATION:

Counsel:
             Applicant:  M J Brett
             Respondent:  L K Wall
Solicitors:
             Applicant:  Zeeman Kable & Page
             Respondent:  Wallace Wilkinson & Webster

Judgment Number: [2000] TASSC 91
Number of paragraphs: 23

Serial No 91/2000
File No M18/1999

DAVID JOHN FARLEY v WEBSTERS LIMITED

REASONS FOR JUDGMENT MASTER HOLT
14 July 2000

By writ filed 25 March 1999 the plaintiff has claimed damages for personal injuries suffered in an accident whilst working for the defendant on 21 February 1995. An application for an extension of time pursuant to the Workers Rehabilitation and Compensation Act 1988, s135(2) was filed on the same day.

In support of the application, photocopy medical records from the Launceston General Hospital were tendered and the following affidavits read into evidence:

·    Affidavit of the plaintiff sworn 25 March 1999;
·    Affidavit of legal practitioner Harry Derkley sworn 25 March 1999; and
·    Affidavit of consultant physician John Martin Sands sworn 24 February 2000.

The plaintiff deposed that he was employed as a sales person at the defendant's store. In the course of his work, he cut open a pack of steel fence posts which had been tied in a bundle with tin straps. Upon cutting one of the tin straps, the pack collapsed and a number of the posts fell on to the plaintiff's left lower leg and foot. The plaintiff was taken to the Launceston General Hospital where it was noted that he had lacerations to the lower third of his left leg and a painful swollen foot. The wounds were dressed and the leg placed in a plaster cast. The plaintiff was off work for about 2½ weeks during which time he received workers compensation payments. There is no dispute about these matters and there is no need for me to say any more about the circumstances of the accident as the respondent concedes that the applicant has an arguable case against the defendant in negligence.

Following the injury, the plaintiff suffered blood circulation problems in his left leg. His leg was often painful and he had several hospital admissions because of these problems culminating with a below-the-knee amputation of the left leg in July 1998. The plaintiff has not worked since. Although workers compensation payments were made in respect of the initial…

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: [2000] TASSC 91
Decision Date: 14 July 2000

CaseChat Overview and Summary

Farley commenced proceedings against Websters Limited seeking damages for personal injuries suffered in an accident whilst working for the defendant on 21 February 1995. An application for an extension of time was filed on the same day. The plaintiff deposed that he was employed as a salesperson at the defendant's store. In the course of his work, he cut open a pack of steel fence posts which had been tied in a bundle with tin straps. Upon cutting one of the tin straps, the pack collapsed and a number of the posts fell on to the plaintiff's left lower leg and foot. The plaintiff was taken to the Launceston General Hospital where it was noted that he had lacerations to the lower third of his left leg and a painful swollen foot. The wounds were dressed and the leg placed in a plaster cast. The plaintiff was off work for about 2½ weeks during which time he received workers compensation payments. The plaintiff suffered blood circulation problems in his left leg. His leg was often painful and he had several hospital admissions because of these problems culminating with a below-the-knee amputation of the left leg in July 1998. The plaintiff has not worked since. The plaintiff was unaware of any right to make a claim for common law damages until after the amputation. The delay between the accident and the amputation was understandable and satisfactorily explained. The delay between the plaintiff seeing a solicitor and the commencement of proceedings was not dilatory. The court was satisfied that an extension of time be granted. The time within which the plaintiff may commence an action against the defendant for damages for personal injuries suffered in the incident on 21 February 1995 will be extended to the date of the issue of the writ, namely 25 March 1999.

Orders