Ghiassi v Industrial People Pty Ltd
[2012] WADC 23
•16 FEBRUARY 2012
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: GHIASSI -v- INDUSTRIAL PEOPLE PTY LTD [2012] WADC 23
CORAM: O'NEAL DCJ
HEARD: 20 JANUARY 2012
DELIVERED : 16 FEBRUARY 2012
FILE NO/S: CIVO 2162 of 2011
BETWEEN: SEYED ALI GHIASSI
Applicant
AND
INDUSTRIAL PEOPLE PTY LTD
Respondent
Catchwords:
Personal injury - Limitation period - Extension when plaintiff not aware of person to whom injury is attributable - Construction of s 39(3) of the Limitation Act 2005 (WA) - When injury is attributable to a person
Legislation:
Limitation Act 2005 (WA)
Result:
For the applicant
Representation:
Counsel:
Applicant: Mr D I Connor
Respondent: Mr P J Wilson
Solicitors:
Applicant: Hoffmans
Respondent: WHL Legal Pty Ltd
Case(s) referred to in judgment(s):
Hollis v Vabu Pty Ltd (2001) 207 CLR 21; 181 ALR 203
O'NEAL DCJ: This is an application pursuant to s 39 of the Limitation Act 2005 (WA) (the Limitation Act) for leave to bring an action against the defendant (respondent to this application) Industrial People Pty Ltd (Industrial People) after the expiry of a limitation period.
Background
According to an affidavit sworn by him on 2 September 2011, in March 2008 the applicant started a trucking business. He incorporated a company called Pear International Pty Ltd (Pear) and Pear purchased a truck. Pear entered into an arrangement with a company called Country Carriers Consortium Pty Ltd (Country Carriers) to supply the truck and a driver. The applicant was employed by Pear to drive the truck.
As its name suggests Country Carriers provides cartage services. In 2008, according to the applicant, it had about four subcontract owner‑drivers. It had a depot and office in Kewdale. There were about 10 men who worked in the yard of the depot, loading and unloading trucks. For this purpose they used about eight forklifts of different sizes.
One of the men who worked in the yard was named Robert Stafford. On 3 March 2008, when the applicant started providing his services through Pear to Country Carriers, Robert Stafford was already working at the depot. According to the applicant, he observed that Mr Stafford worked there, full time, five days a week.
On 14 April 2008 the applicant returned to the depot with a load of rolls of carpet and small boxes. Mr Stafford had previously helped load the applicant's truck. The applicant called for Mr Stafford, who was driving a forklift, to bring a pallet so that the small boxes could be unloaded.
On this particular occasion Mr Stafford brought an empty pallet on the tines of the forklift and manoeuvred it to the side of the truck's tray. The purpose of this was obviously so that the boxes could be shifted from the tray to the pallet. According to the applicant Mr Stafford left a gap between the pallet and the tray of the truck. On previous occasions at the depot the applicant observed that forklift drivers would either leave no gap at all or position the pallet so that it overlapped onto the tray of the truck.
The applicant says that while he was shifting boxes from the tray of the truck his foot fell into the gap between the pallet and the side of the truck. He fell to the ground and says that as a result he suffered a significant back injury.
The applicant says that because he observed Mr Stafford working at Country Carriers' depot full‑time five days a week since 3 March 2008 he, the applicant, assumed that Mr Stafford was an employee of Country Carriers. For that reason he 'subsequently instructed my solicitors to issue court proceedings against Country Carriers for Robert's mistake in manoeuvring the pallet'.
An action was in fact commenced against Country Carriers on 15 March 2011: Civ 852 of 2011. The endorsement of claim sought damages 'for personal bodily injuries sustained on 14 April 2008 and as a result of the negligence and/or breach of statutory duty of the respondent, its employees, servants or agents'. A statement of claim was filed on 31 May 2011. The statement of claim alleged that Mr Stafford was the employee of Country Carriers. It also alleged that the applicant's accident occurred as a result of the negligence of Country Carriers, 'its servants and/or agents'.
On 15 July 2011 Country Carriers filed a defence to the applicant's claim. At par 2.1 of the defence Country Carriers pleads,
In relation to sub‑paragraph 3.3 of the statement of claim the defendant denies that it employed forklift driver Robert Stafford at the material time and states further that Mr Stafford was a casual worker employed by labour hire company Industrial People Pty Ltd.
Nothing in the material before me suggests that any inquiry was made by the applicant or his legal representatives to confirm the applicant's assumption that Mr Stafford was an employee of Country Carriers, at least not prior to receipt of Country Carriers' defence and the expiry of the limitation period.
The law
As the law stood prior to the enactment of the Limitation Act an action for damages for personal injury allegedly caused by negligence could be brought at any time up to six years following the occurrence of the injury. When the Limitation Act was proclaimed that limitation period was reduced to three years. Accordingly, the time within which an action could have brought against Industrial People expired on 14 April 2011.
The Limitation Act also includes the following provisions:
39. Court may extend time to commence actions for personal injury or under Fatal Accidents Act 1959
(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.
(2)…
(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, a person to whom the cause of action accrues ‑
(a)was not aware of the physical cause of the death or injury;
(b)was aware of the physical cause of the death or injury but was not aware that the death or injury was attributable to the conduct of a person; or
(c)was aware of the physical cause of the death or injury and that the death or 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 3 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 death or injury;
(b)that the death or 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).
The statement of claim in Civ 852 of 2011 seeks damages against Country Carriers based on both the negligence of an alleged employee and an alleged want of care on the part of Country Carriers itself.
It appears to be common ground between the parties that the applicant's case against Industrial People is, at this stage, entirely based on vicarious liability. It is not alleged on behalf of the applicant that Industrial People is personally liable for the injury to the applicant because of any want of care on its part. Rather, if liability is to be established against Industrial People, on the facts now known, it is only by virtue of the fact that Industrial People was the employer of Robert Stafford.
The applicant says that this court's discretion to grant leave to commence an action against Industrial People is enlivened by either or both of s 39(3)(b) or s 39(3)(c) of the Limitation Act.
The submission on behalf of the respondent was that unless the 'person' referred to in the subsections had engaged in some conduct that gave rise to a 'direct, personal liability' the discretionary power of s 39 was not enlivened. Given that the applicant only sought to rely upon Industrial People's status as the employer of Robert Stafford, it could not be said that the applicant's 'injury was attributable to the conduct of …' Industrial People. The only person 'to whose conduct the plaintiff's [applicant's] injury was attributable' is said to be Robert Stafford.
Counsel for the respondent accepts that if that is the proper construction to be given to s 39 that it will never be possible to extend time where a plaintiff's claim against a party relies only on vicarious liability. That is, it will never be possible for court to extend the time to bring an action for damages for personal injuries following the expiry of a limitation period unless the nominated defendant has arguably incurred personal liability by some wrongful act.
The applicant accepts that he knew the physical cause of his injury. What counsel on his behalf says is that until the revelation of the Country Carriers' defence, he did not know that his 'injury was attributable to the conduct' of Industrial People. The relevant conduct it is submitted is Industrial People's operation of its labour hire business, its employment of Robert Stafford, and its provision of Robert Stafford to work in the depot of Country Carriers.
Counsel for the applicant also submits that for the purposes of s 39(3)(c) 'reasonable inquiry' may sometimes mean no inquiry at all. That I am told is the case here. The argument is, in effect, that it was reasonable for the applicant to make no inquiry as to Robert Stafford's employer given the facts of which the applicant was then aware.
With respect, it seems to me that this submission tortures the language of the subsection in an attempt to force it to provide the answer sought. In my view, on its proper construction, s 39(3)(c) anticipates a situation where the person to whose conduct an injury or death may be attributed is truly anonymous. That is, it anticipates a situation where the plaintiff knows that someone is responsible for his injury, knows that he does not know that person's identity and would reasonably be expected to take steps to learn it. In those circumstances, a 'reasonable inquiry' to learn the identity of the person said to be liable for the injury is a threshold matter that must be established as a fact before the discretion to extend time is even enlivened. In my view s 39(3)(c) applies where the applicant has been left in the position where he is 'unable' to establish the person's identity and is conscious of that fact, despite the making of positive reasonable enquiries.
The circumstances here are rather different. The applicant genuinely though mistakenly believed that he knew the identity of the person he wished to sue. If this court has the power to grant leave it must be found in s 39(3)(b). The question of construction here is whether a death or injury is 'attributable to the conduct of a person' when the only basis alleged for that person's liability is vicarious liability as in the case of an employer.
Section 39(3)(a) to s 39(3)(c) each refer to an applicant's lack of awareness (39(3)(a)) or awareness (39(3)(b) and (c)) 'of the physical cause of the death or injury' as one of the factors relevant to whether the power to grant leave is enlivened. That language of causation, familiar as it is, is not used in respect of the additional factors relevant for the purposes of subsections (b) and (c).
The legislature has chosen in s 39(3)(b) to make the power exercisable when the plaintiff is 'aware of the physical cause' but not a person to whose 'conduct' a death or injury is 'attributable'. It is not premised on the lack of awareness that a person 'caused' or 'physically caused' the death or injury. Rather the power is enlivened if the plaintiff is not aware, that a death or injury is merely 'attributable to the conduct' of that person.
Neither counsel was able to refer to any authority dealing with the point of construction. I was told that the Minister's Second Reading speech offers no assistance.
No definition is provided within the Limitation Act for the words 'conduct' and 'attributable'. 'Conduct' is a well known ordinary English word of broad meaning. The adjective 'attributable' does not enjoy the same degree of common usage.
The Shorter Oxford English Dictionary defines 'attributable' as 'able to be attributed to, owing to'. The word 'attribute' has several meanings the second and fourth of which are as follows:
Ascribe as belonging or appropriate to …
Ascribe to as an effect or consequence …
In my view the language of s 39(3)(b) does not require the court to find that the would‑be respondent has 'caused' the relevant death or injury. All that is required is that the death or injury may be 'ascribed to as an effect or consequence' of the conduct of that person.
It is accepted on behalf of the respondent that, whatever the precise juridical basis for vicarious liability may be (as to which see Hollis v Vabu Pty Ltd(2001) 207 CLR 21; 181 ALR 203 [34] – [36]), vicarious liability remains a basis upon which employers with no personal liability may yet be responsible for the wrongful, injurious acts of their employees.
The respondent here conducts or conducted a labour hire business. In so doing it employed Mr Stafford and placed him at the depot where he was engaged in the course of his employment at the time of the applicant's accident. In my opinion that conduct on the part of the respondent makes it a person to whose conduct the applicant's injury is attributable.
The applicant here was aware of the physical cause of his injury. I am satisfied that, because of his mistake about Mr Stafford's employment, he was not aware when the limitation period expired that the respondent was a person to whose conduct the applicant's injury was attributable. In those circumstances I conclude that the power to grant leave pursuant to s 39(3)(b) is enlivened. The question remains of course whether in all the circumstances I should exercise that discretion in favour of the applicant.
The exercise of the discretion
The position of the respondent is that even if my discretion is enlivened here it should not be exercised in favour of the applicant. The factors that the respondent says I should take into account are as follows:
1.The applicant is the author of his own misfortune by failing to give any notice of his claim and by failing to investigate relevant circumstances, in particular the identity of Mr Stafford's employer, 'until the cusp of the expiry of the limitation period'.
2.The applicant may have lost nothing since he already has a 'perfectly good defendant' in the person of Country Carriers.
3.The application for an extension of time comes almost five months after the expiration of the limitation.
4.The respondent should not in the circumstances be deprived of a 'vested right' in the expiration of the limitation.
There is in fact no evidence of any inquiry on behalf of the applicant for the purpose of determining whether Mr Stafford's employment arrangements were different from what appearances might suggest. As the respondent rightly points out traditional employment relationships, or at least the kind of employment relationships that existed for most of the 19th and 20th centuries in Australia, are less and less the norm. Quite apart from the existence of businesses like the respondent's (and the applicant's), a corporate entity carrying on a business may have services supplied to it by a related or associated corporate entity. In my view however it cannot be said just yet that it is unreasonable to assume that a person who works full‑time five days a week over an extended period, at a particular place of business, is employed by the entity that owns and operates that business and carries it on at that place.
It is of course possible that the applicant's better claim is against Country Carriers notwithstanding the legal relationship of employment between Mr Stafford and the respondent. If it were the case that a good cause of action could be made out against both Country Carriers and the respondent it would be a curious result if, by refusing leave, Country Carriers had somehow to bear the entire liability. It is unlikely I suspect that Country Carriers would be content with such a result and it might well be that the respondent would be drawn into this litigation even if I were to refuse leave to the applicant. While it might be a powerful factor in favour of the grant of leave if an applicant would otherwise be left with no remedy, the argument that the applicant already has one 'perfectly good defendant' seems to me to be of a lesser order of magnitude as a basis for refusing leave.
It is the case that application was only made some five months after the expiry of the limitation. The Limitation Act itself however allows the court to extend the time by as much as three years
… from when a person to whom the cause of action accrues became aware, or ought reasonably to have become aware –
…
(b)that the death or 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) (s 39(4).
In the context of this last subsection of the Limitation Act, five months is not an especially long time.
I also observe that having been alerted on 15 July 2011 as to his mistake by the defence of Country Carriers the applicant brought this application on 12 September 2011. Given the time that might be required to consider the new information and prepare an application the applicant appears to have acted with reasonable diligence once he discovered his mistake.
On 2 December 2011 the applicant's application was set down for hearing on 20 January 2012 before a judge of this court. When that order was made the respondent was given until 23 December 2011 to file and serve an affidavit in opposition to the application. No affidavit was filed. Despite that, and contrary to the Practice Direction, the respondent's outline of submissions and list of authorities was not filed until the afternoon of 19 January. Counsel for the applicant did not receive that material until the morning of the hearing. When asked how that came to be, counsel for the respondent offered the following explanation:
We've been conducting investigations into the circumstances giving rise to the claim in the background. … there is a question of whether we would be trying to mount a case of prejudice at today's hearing and – or whether we would seek an adjournment if we obtained the evidence from the investigators in time for the hearing today; and the first advice we got from the investigators in regards to those investigations was late yesterday afternoon. … in addition to what's raised in the submissions, we thought there was a chance that we were going to try to – that there may have been a prospect that we would have come along today and said, 'Look we're not … ready today because we've obtained some evidence of actual prejudice and that we would want to canvas that issue in the context of the application'. … we haven't got that evidence, it hasn't come and we don't know whether we'll ever get that evidence so … we're proceeding on the application as it's currently framed.
That explanation, such as it is with respect, illustrates how events may conspire to prevent timely compliance with procedural requirements. It also candidly acknowledges the absence of any suggestion of prejudice to the respondent if leave was to be granted.
No authority is cited in support of the proposition that the respondent would be deprived of a 'vested right' if leave for granted. I have referred to the absence of any suggestion of prejudice to the respondent if leave were granted.
It is not suggested on behalf of the respondent that it could not have been joined and properly joined as a defendant on the basis of vicarious liability if that had been done prior to 14 April 2011. In all of the circumstances I have referred to the applicant's mistaken assumption about the identity of Robert Stafford's employer should not bar him now from joining the correct employer. The relatively short period of time between the expiry of the limitation and the receipt by the respondent of notice of the claim, the desirability of having all proper parties joined and the absence of any prejudice to the respondent are matters to which I give particular weight.
I grant leave to the applicant and I will hear from the parties as to the precise terms of the order.
5