France v Skilled Engineering Ltd
[2004] TASSC 134
•17 November 2004
[2004] TASSC 134
CITATION: France v Skilled Engineering Ltd & Anor [2004] TASSC 134
PARTIES: FRANCE, Terrence Vincent
v
SKILLED ENGINEERING LTD ACN 005 585 811
HANSEN AND YUNCKEN PTY LTD ACN 063 384 056
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 631/2003
DELIVERED ON: 17 November 2004
DELIVERED AT: Hobart
HEARING DATES: 3 and 17 November 2004
DECISION OF: Master S J Holt
CATCHWORDS:
Limitation of actions – Extension of time – Considerations – Arguable case – Explanation for delay – Prejudice – Exercise of discretion.
Limitation Act 1974 (Tas), s5 and Workers Rehabilitation and Compensation Act 1988 (Tas), s135.
Aust Dig Limitation of Actions [55]
REPRESENTATION:
Counsel:
Plaintiff: L Howroyd
First and second defendants: C W Law
Solicitors:
Plaintiff: Hilliard and Associates
First defendant: C N Dockray
Second defendant: Page Seager
Judgment Number: [2004] TASSC 134
Number of Paragraphs: 18
Serial No 134/2004
File No 631/2003
TERRENCE VINCENT FRANCE v
SKILLED ENGINEERING LTD and HANSEN AND YUNCKEN PTY LTD
REASONS FOR DECISION MASTER S J HOLT
17 NOVEMBER 2004
The plaintiff’s writ claiming damages for personal injury sustained on 28 April 1999 issued on 28 November 2003. The plaintiff had two or three days away from work as a result of the injury and was paid compensation by his employer, the first defendant, under the Workers Rehabilitation and Compensation Act 1988 for this time. In such circumstances that Act, s135, provides that the time limited for commencement of an action for damages against the employer is three years from the date of the injury with the court having a discretion to extend time for up to a further three years. So far as the second defendant is concerned the relevant limitation period for the commencement of an action is as prescribed in the Limitation Act 1974, s5. Under that Act the same three year primary limitation period is imposed with the court having a discretion to extend time for up to a further three years. The discretion under each Act is the same, namely, a discretion to be exercised in accordance with the justice of the case: Woolley v Australian Newsprint Mills Ltd Tas U/R 85/1997 and Butt v Comalco Aluminium (Bell Bay) Ltd Tas U/R B9/1996.
The writ, having issued four years and seven months after the injury the plaintiff, by his amended application, has applied for an extension of time under both Acts. The relevant considerations and approach are as set out in Hill v Iluka Corporation Ltd [2002] TASSC 113. There the Full Court said at par23:
“The Limitation Act, s5(3), requires that consideration be given to all the circumstances of the case. In most cases this means that regard must be paid to whether there is an arguable case, the length of the delay, the explanation for it and the degree of prejudice the delay has caused and/or will cause the defendant. All of these matters require weighing to determine whether it is just in the circumstances of the case, to extend the time within which proceedings may be commenced. See Knight v Smith [1975] Tas R 83; Klein v Domus (1963) 109 CLR 467; Parsons v Doukas (2001) 52 NSWLR 163; Marr v Green (1994) Aust Torts Reports ¶81-277.”
The plaintiff’s statement of claim includes the following allegations. The plaintiff was employed by the first defendant, a labour hire company, and assigned to work for the second defendant, a demolition contractor, at a multi-storey building site in Hobart. The plaintiff was allocated work as a jackhammer operator and subject to a direction that the drill bit attached to the end of the jackhammer was not to pierce the concrete floor. On or about 28 April 1999 the drill bit attached to the plaintiff’s jackhammer commenced to pierce the concrete floor and he immediately pulled it back up thereby suffering a back injury.
In his affidavit at par19 the plaintiff said:
“On this day as I jerked the jack hammer up after it pierced the floor I felt a crack in the lower spine. I had instant pain down the buttock and the back of the thigh of my left leg. I had to support myself against the wall of the shower and was dangling my leg from the pain. I had been working in the shower cubicle alone. I couldn’t move for about 20 minutes because of the pain and I couldn’t call out to anyone because I couldn’t be heard for the jack hammer noise of the other people working.”
Neurosurgeon, Mr John Liddell, said in his affidavit that the plaintiff is suffering from a recurrent disc herniation on the left at L5/S1 and in his opinion the plaintiff “quite likely sustained an injury to his lumbosacral spine out of and during the course of his activities at work – specifically the incident in which a 90 lb jack hammer allegedly went through a roof suddenly on or about 28th April 1999”. Mr Liddell was asked in cross-examination about the history given to him by the plaintiff. He said that the history was supplied at about the time he performed a lumbar micro-discectomy in December 2002 and that his understanding was that the jackhammer had gone through the floor or roof on which the plaintiff was working pulling the plaintiff forward and that it was this forward motion which resulted in the injury.
Counsel for the defendants submitted that the plaintiff had not made out an arguable case against either defendant. He said that the evidence adduced from the plaintiff in cross-examination was also to the effect that any injury which was suffered occurred when the jackhammer pierced the concrete floor rather than when the plaintiff retracted it and that such an incident is not indicative of negligence.
Counsel for the defendants referred to the following exchanges in cross-examination of the plaintiff:
Mr Law: And you reported you strained yourself when the jackhammer dropped through not when it was pulled out?
Mr France: Yeah.
Mr Law: And that is what happened. You strained your back. You were using a jackhammer when the point of the jackhammer went through the floor instantly causing Terry to strain his back whilst holding the equipment. That’s what you reported?
Mr France: I never used those exact words.
Mr Law: You signed it didn’t you?
Mr France: They wrote it I signed it. I had a quick read.
…
Mr Law: And you described it immediately at the time that it happened not as a jerking up injury at all – did you?
Mr France: No, I can remember saying the words going through the floor, but I told my lawyer jerking it up and all that because to me whether it is going through up or down it didn’t matter it is the initial movement of it that is what I did. Because your talking …
Mr Law: No I haven’t asked you any questions Mr France.”
I do not think that it follows that in light of the cross-examination and the history apparently given by the plaintiff to Mr Liddell that a tribunal of fact would, regardless of whatever other evidence might be received at the trial necessarily reject the assertion that the injury occurred as the plaintiff “jerked the jackhammer up after it pierced the floor”. The plaintiff under cross-examination. and in his description to Mr Liddell, may well have regarded the piercing of the concrete floor as part and parcel of the event which caused his injury. In the sense that the injury would not have occurred had the jackhammer not pierced the concrete floor the plaintiff’s evidence under cross-examination is consistent with the contents of his affidavit. The plaintiff , despite being asked was not given an opportunity to explain what he believed to be encompassed in his description of the incident occurring when the jackhammer went through the floor. As can be seen from the extract of the exchange which I have set out the plaintiff was cut off mid-sentence in the course of giving his last answer by cross-examining counsel. I am not persuaded on the limited materials before me that the plaintiff’s assertion has been dishonestly made or is otherwise untenable.
Counsel for the defendants submitted that there was no evidence that the direction not to let the jackhammer pierce the concrete floor, if such a direction was given, came from either of the defendants. I reject the submission. Although the plaintiff has not said who issued the direction or even that the person issuing the direction was a servant or agent of either of the defendants, he did say in his affidavit that there was a supervisor who “came through 2 – 3 times per day for about the first 4 – 5 weeks, then they had another supervisor called Adrian Dare who worked with us”. The plaintiff went on to say in a supplementary affidavit that Adrian Dare wore a hard hat which contained the logo of the second defendant. He said also that from time-to-time he received directions from Julian Proud and Bruce Adams who also wore hard hats bearing the logo of the second defendant. In my view, the evidence is sufficient for it to be open to a tribunal of fact to infer that the claimed direction was given by somebody that the plaintiff believed was authorised to direct him and, accordingly, to infer that the likelihood was that the direction was given with the apparent authority of the second defendant.
There is evidence capable of supporting findings that the plaintiff was subject to a direction not to allow the jackhammer to pierce the concrete floor and that whilst acting in accordance with this direction and because of it the plaintiff suffered injury. The evidence is capable of supporting findings that at the time of the injury the plaintiff was employed by the first defendant and that the second defendant was responsible for the system of work. It is arguably foreseeable that compliance with a direction effectively requiring the jackhammer to be jerked up if it commenced to pierce the concrete floor might cause injury. The evidence indicates that the jackhammer was particularly heavy, the plaintiff having said that generally it was manoeuvered by dragging it across the floor rather than lifting it. There is enough in it to sustain against the second defendant an arguable case of duty, breach and resultant injury. If the second defendant is liable it follows that the first defendant, the employer, is accordingly also liable because of its duty of care owed to its employees which is non-delegable: Kondis v State Transport Authority (1984) 154 CLR 672 at 687 and 688; Stevens v Brodribb Sawmilling Co Pty Ltd (1985-1986) 160 CLR 16 at 32 and McDermid v Nash Dredging and Reclamation Co Ltd (1987) 2 All ER 878 at 887. I am persuaded that the plaintiff has an arguable case against both defendants.
I now turn to the explanation for the delay. Essentially the plaintiff’s evidence is as follows. At the time of the injury he thought he had merely strained or torn a muscle. That is what he was told by the doctor he first saw the day following the incident. He returned to work after a few days and worked on the same job apparently at the same intensity for several weeks until his assignment had been completed. The symptoms he initially suffered were not sufficiently severe to cause him to see a doctor again about them until April 2000. At about the same time neck and shoulder symptoms caused by pre-existing Scheuermanns disease were worsening and in June 2000 he was granted a disability pension because of the Scheuermanns symptoms. He has remained on the pension ever since. He has seen his doctor fairly regularly about his lower back symptoms since April 2000, but his expenses have been paid through the Medicare system. Accordingly, the plaintiff has not been materially out-of-pocket because of the injury at any time.
His lower back symptoms had considerably worsened by about the middle of 2002. In late 2002 Mr Liddell told him that he may have a workers compensation claim for his ongoing back problems attributable to the alleged incident in April 1999. The plaintiff was unaware of time limits and decided to leave the matter be pending the outcome of surgery. Mr Liddell performed a lumbar micro-discectomy at the Royal Hobart Hospital in December of 2002 which resulted in the plaintiff enjoying considerable pain relief for the next few months. Commencing a few months after the surgery the plaintiff had several conversations with a friend about his back injury and during the course of one of these conversations his friend told him that there was a three year time limit. The plaintiff thinks that this conversation occurred only a few weeks before he first consulted his solicitors on 22 October 2003, but conceded in cross-examination that the conversation may have occurred several months earlier, perhaps as early as March or April of 2003. The writ issued a little over a month after the plaintiff first consulted solicitors.
Counsel for the defendants did not suggest that I should reject the plaintiff’s explanation for delay. The plaintiff had not been materially out-of-pocket because of his injury. It was not until mid to late 2002 that the symptoms became so severe as to warrant surgery. The plaintiff was unaware of the three year time limit and it is understandable that he decided to wait and see whether the surgery which he had in December 2002 was successful before seriously contemplating legal action. Surgery resulted in a few months of significant pain relief. Regardless of whether or not the plaintiff was first told of the three year time period several weeks or several months before he first consulted a solicitor I regard the delay as having been satisfactorily explained.
Counsel for the defendants did not assert that the belated commencement of the action will cause specific prejudice to the defendants. There was no evidence that witnesses had become unavailable or that documents had been lost. Although it was asserted by counsel that medical practitioners engaged on behalf of the defendants, because of the delay, may no longer be able to satisfactorily ascertain the cause, nature and extent of injury there was no evidence to that effect. Counsel asked me to have regard to the general disadvantages which come with delay. I attach weight to the well known observation of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551 that with delay the quality of justice which can be administered deteriorates and that sometimes the deterioration is not recognisable even by the parties. It should not be forgotten, however, that in Taylor’s case the court was considering the appropriateness of extending time where the incident complained of had occurred 15 years prior to the filing of the application for an extension of time. By comparison, the delay here is about 4½ years and so the generalities do not loom as large in this case as they did in Taylor.
In Taylor, Toohey and Gummow JJ said at 550:
“The real question is whether the delay has made the chances of a fair trial unlikely.”
Counsel for the defendants has not identified any particular circumstances or features applying to this case which would cause a real concern that it may not now be possible to achieve a fair trial. There being no evidence of specific prejudice I infer, and accordingly find, that allowing the action to proceed will not materially prejudice the defendants.
It was submitted on behalf of the defendants that the likelihood is that the plaintiff’s back injury is unrelated to the claimed work incident. Mr Liddell under cross-examination said that he had not been told that the plaintiff had returned to work two or three days after the claimed incident and continued to work operating a jackhammer for the next several weeks until the job assignment had been completed. Mr Liddell said that he had not been made aware that the plaintiff had not consulted a doctor about his lower back between a day or day following the work incident in April 1999 and April 2000, a period of 12 months. Mr Liddell, also agreed that the plaintiff’s disc herniation could have occurred as a result of the progression of a pre-existing degenerative condition without a precipitating traumatic event. Based on the history of the plaintiff returning to work within a few days of the incident and thereafter being able to continue work as a jackhammer operator for the next several weeks with the plaintiff not regarding the symptoms as being sufficiently severe to see a doctor for about 12 months the likelihood was that the original injury was a muscle strain rather than a herniated disc. However, Mr Liddell was not prepared to exclude as a possibility, notwithstanding the above history, that the plaintiff’s disc prolapse occurred because of the work incident. The evidence on the hearing of an application such as this is skeletal and as Cox J (as he then was) said in Soul v Soul TAS U/R 23/1982 at p6:
“It may be that at a subsequent trial additional evidence might alter its complexion to such an extent that the conclusion no longer remains open.”
It may be that if the evidence does not substantially change from that which was presented to me at trial it will be found that on the balance of probabilities the only injury the plaintiff suffered was a muscle strain and that accordingly his damages award will be minimal. However, I am not prepared to exclude the possibility that with other and more detailed evidence a finding might be made that the plaintiff’s significant ongoing back problems are attributable to the work incident. This is an application for an extension of time to enable the plaintiff to take his case to trial. It is not a summary trial of the action. If an extension of time is otherwise appropriate I would not consider it right to withhold a favourable exercise of the discretion simply because, on the evidence before me, the claim for ongoing serious injury appears to be weak.
The plaintiff has an arguable case; the delay has been satisfactorily explained; and a fair trial can still occur. Having regard to these matters and notwithstanding the policy considerations which lie behind limitation legislation as explained in Taylor’s case at pp551 - 553, I am persuaded that the justice of the case is that the plaintiff ought have a favourable exercise of the discretion.
I order that the time within which the plaintiff’s action may be commenced is extended to the date of the issue of the writ, namely, 28 November 2003.
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