Gladstone v Public Transport Authority of Western Australia
[2018] WADC 155
•16 NOVEMBER 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GLADSTONE -v- PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA [2018] WADC 155
CORAM: DAVIS DCJ
HEARD: 10 SEPTEMBER 2018
DELIVERED : 16 NOVEMBER 2018
FILE NO/S: CIVO 66 of 2018
BETWEEN: JAMES WILLIAM GLADSTONE
Applicant
AND
PUBLIC TRANSPORT AUTHORITY OF WESTERN AUSTRALIA
Respondent
Catchwords:
Personal injury - Limitation period - Application for extension of time within which to commence proceedings - Whether reasonable enquiry to establish identity of person to whom injury is attributable - Section 39(3) of the Limitation Act 2005 (WA) - Turns on own facts
Legislation:
Limitation Act 2005 (WA)
Result:
Application granted
Representation:
Counsel:
| Applicant | : | Mr A A Nolan |
| Respondent | : | Ms E l Thuijs |
Solicitors:
| Applicant | : | Simon Walters |
| Respondent | : | Jackson McDonald |
Case(s) referred to in decision(s):
AME Hospitals Pty Ltd v Dixon [2015] WASCA 63
Cunningham v Moorevest Pty Ltd [2016] WADC 38
Ghiassi v Industrial People Pty Ltd [2012] WADC 23
DAVIS DCJ:
On 26 May 2014 the plaintiff, Mr Gladstone, suffered personal injury to his right ankle when he slipped on blue metal debris whilst walking through a temporary car park constructed as part of a Car Park Expansion Project at the Bassendean Train Station.
The limitation period for commencing a proceeding seeking damages for this injury was three years: s 14(1) of the Limitation Act2005 (WA) (the Act).
By writ issued on 13 February 2017 (within the three year limitation period) Mr Gladstone commenced District Court Action CIV 390 of 2017 seeking damages for his injury against Valmec Australia Pty Ltd (Valmec). The proceedings were issued on the basis that Valmec was the contractor responsible for constructing the temporary car park at the Bassendean Train Station.
On 13 July 2017 the solicitors for Valmec advised Mr Gladstone's lawyer that they were investigating whether the Public Transport Authority (PTA) ought to be the defendant in the action.
By letter dated 11 October 2017 the solicitors for Valmec advised Mr Gladstone's lawyer that the temporary car park did not form part of the works and was not constructed by Valmec, but by the PTA.
As the limitation period for action against the PTA expired on 25 May 2017, Mr Gladstone applied for an extension of time within which to commence proceedings against the PTA, pursuant to s 39(3) of the Act.
The PTA has opposed the application and submitted that Mr Gladstone knew from 26 May 2014 or knew or ought to have known from 21 July 2014, the identity of the occupier of the premises where he fell.
For the following reasons I grant Mr Gladstone's application and will allow him an extension of time within which to commence proceedings against the PTA.
The law which applies
By s 39(3) of the Act, the court may extend the time in which an 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.
For ease of reference, in these reasons I shall refer to 'the person to whom the cause of action accrues', as 'the applicant'. The person to whom the cause of action accrues is usually the applicant, but not in all cases. For example, the applicant seeking the extension of time may be the guardian or next friend of the person to whom the cause of action accrues (where, for example, that person is under a disability, such as in AME Hospitals Pty Ltd v Dixon [2015] WASCA 63 (AME Hospitals).
If satisfied of the matters contained in s 39(3) of the Act, s 39(4) provides that the court may extend the time in which an action can be commenced for up to three years from the date on which the applicant became aware, or ought reasonably have been aware, of:
(a)the physical cause of the injury;
(b)that the injury was attributable to the conduct of a person; and
(c)the identity of the person to whom the injury was attributable.
When exercising the discretion to extend the limitation period, the court must have regard to the matters in s 44 of the Act which provides that, when deciding on an extension application, whether to extend the time for the commencement of an action, a court is to have regard to:
(a)whether the delay in commencing the proposed action, whatever the merit of the reasons for that delay, would unacceptably diminish the prospects of a fair trial of the action; and
(b)whether extending the time would significantly prejudice the defendant (other than by reason only of the commencement of the proposed action).
The applicant has the burden of proving that the court should extend the limitation period: s 79(3) of the Act.
To enliven the power to extend time under s 39(3) the applicant has to prove at least one negative, being the lack of awareness at the time when the limitation period expired of the physical cause of the injury, or that the injury was attributable to the conduct of a person, or the identity of that person: AME Hospitals [18] (McLure P, with whom Newnes JA agreed).
In practical terms, the focus under s 39 should be on when the applicant first became aware, or ought reasonably to have become aware, of all the matters in s 39(4), because the application has to be made within three years from that date. That exercise will inevitably provide the evidentiary basis for determining the matters necessary to enliven the power under s 39(3): AME Hospitals [19] ‑ [20].
A causal connection in fact (as distinct from causation at law) will satisfy the requirement that the injury be attributable to a person's conduct: AME Hospitals [31] ‑ [33].
The natural and ordinary meaning of the term 'aware' is cognisant or informed of. Awareness can result from information provided by a third party. What is required is actual awareness, not constructive awareness, that the injury was attributable to the conduct of an identified person: AME Hospitals [34].
On the issue of when the applicant ought reasonably have become aware of the matters in s 39(4), the test of reasonableness is an objective one and is assessed having regard to the characteristics, attributes and circumstances of the applicant: AME Hospitals [42].
Where s 39(3)(c) refers to the 'conduct of a person', the 'person' referred to is 'the person in whom there was a duty of care to ensure that accident of the kind suffered by him did not happen': Cunningham v MoorevestPty Ltd [2016] WADC 38 [44] (Cunningham).
Once the applicant becomes aware that his injuries were attributable to the conduct of a 'person', he is required to make reasonable inquiries to ascertain the identity of that person: Cunningham [45].
The discretion to extend the limitation period pursuant to s 39(3)(c) is only enlivened if the applicant, or his lawyers on his behalf, conduct reasonable inquiries to ascertain the identity of the 'person' and is unable to ascertain the person's identity prior to the expiry of the limitation period: Cunningham [46] and [59].
The evidence on this application
In support of the application there is an affidavit of Mr Gladstone's lawyer, Simon Meyer Walters, sworn 10 May 2018 and an affidavit of Mr Gladstone sworn 29 August 2018.
The PTA filed an affidavit of Erica Louise Thuijs sworn 21 June 2018. Ms Thuijs is a solicitor employed by the lawyers acting for the PTA.
The relevant facts
The following facts are taken from the affidavit evidence, as to which there is very little dispute.
After his injury on 26 May 2014, Mr Gladstone initially went home to treat his left foot with elevation and ice. At about 10.30 am he returned to the site and spoke with the Valmec site supervisor, the contractor for PTA. That site supervisor gave him the mobile phone number for the site manager 'John'.[1]
[1] Affidavit of Mr Gladstone sworn 29 August 2018 (Gladstone affidavit) Annexures A and B; Affidavit of Erica Louise Thuijs sworn on 22 June 2018 (Thuijs affidavit), Annexure ELT-1 pages 6 and 7 – email from Elizabeth Jones to Natasha Guerinoni sent 26 May 2014 at 12:57.
Mr Gladstone took a photograph of a sign erected near the car park where he slipped. The sign described the Project as 'a State Government Project', that the contractor was 'Valmec', and that information about the Project could be found on the Public Transport Authority website.[2]
[2] Affidavit of Simon Meyer Walters sworn 10 May 2018 (Walters affidavit) par 3 and Annexure A.
On the same day, 26 May 2014, Mr Gladstone attempted to contact the Valmec site manager by telephone but the battery on his mobile phone ran out of charge. At the time, the only record he had of the site manager's number was in his mobile phone. As a result of the mobile phone battery running out of charge, Mr Gladstone could not access the Valmec site manager's number.[3]
[3] Gladstone affidavit par 6 and annexures A and B.
Recalling that the PTA had been identified on the sign advising of the car park works at the Bassendean Train Station, Mr Gladstone then telephoned the PTA and spoke to Elizabeth Jones from the PTA's Corporate Communications team to report his injury.[4]
[4] Gladstone affidavit par 3 to 7; Thuijs affidavit, annexure ELT-1 pages 6 and 7 – email from Elizabeth Jones to Natasha Guerinoni sent 26 May 2014 at 12:57.
Mr Gladstone was informed by Ms Jones in the telephone discussion he had with her on 26 May 2014 that the accident was 'the contractor's' responsibility and that the PTA would discuss his accident with the contractor, and revert to him.[5]
[5] Gladstone affidavit par 5; Thuijs affidavit, annexure ELT-1 page 7. The email written by Ms Jones she reported to Ms Guerinoni that Mr Gladstone wanted to inform the PTA 'as it's our work through Valmec … I said that I'd look into what we do in this instance and someone would check back with him'.
After her discussion with Mr Gladstone, Ms Jones had email correspondence with another PTA employee, the Project Communications Manager, Natasha Guerinoni, concerning Mr Gladstone's claim. Ms Jones said as follows:[6]
Hi Tash
I had a call from a man called Jim Gladstone who was getting out of his car this morning opposite Bassendean station and said there was blue metal on the road from the construction site (not confirmed) he said he has twisted his ankle quite badly on a piece of blue metal. Mr Gladstone approach someone from Valmec on-site and was given the site manager's number (Jon I assume) and subsequently left a message. He wante dot [sic] inform PTA as it is our work through Valmec. He seemed very reasonable and wasn't distressed. I said that I'd look into what we do in this instance and someone would check back with him.
My understand [sic] is (investigation pending) that Valmec/PTA offer to pay for CT scan/X-ray of the ankle – if the GP recommends it, because he seemed to think it was quite bad and probably soft tissue damage.
Do you want me to leave this with you to follow up with Malcolm/Valmec? I think the guys would have had my number from when I was on the project which is understandable.
Let me know if I can help at all.
[She then gave Mr Gladstone's mobile telephone number]
I've not contacted Malcolm or Jon from Valmec. EJ
[6] Thuijs affidavit annexure ELT-1 pages 6 and 7.
What Ms Jones has written in this email is, in my view, consistent with Mr Gladstone's evidence that she told him that PTA's contractor was responsible and that the PTA would discuss the matter with the contractor. There is no issue that PTA's 'contractor' was Valmec.
Later on the same day, 26 May 2014, at 3.12 pm, Ms Jones sent another email to Ms Guerinoni saying:[7]
Jim just followed up with me. I think he's expecting an offer!
[7] Thuijs affidavit annexure ELT-1 page 6.
On 27 May 2014, Ms Guerinoni forwarded Ms Jones' emails to the Senior Project Manager, Program and Projects, at the PTA, Mr Malcolm McLean, who in turn, on the same day, forwarded the email chain to Mike Williams, the PTA Project Manager.[8]
[8] Thuijs affidavit annexure ELT-1 page 6.
On 28 May 2014, Mr Gladstone contacted Mike Williams at the PTA and advised him of details of the incident.[9]
[9] Gladstone affidavit annexures A and B under the heading 'Wednesday, 28 May 2014'; Thuijs affidavit annexure ELT-1.
Also on 28 May 2014 there was a Valmec Projects Operation Weekly Meeting held between the project manager, Brett Huth, the project engineer John Cheesbrough and other representatives. On the agenda was the item 'Safety' and the following was recorded in the minutes:[10]
A guy has contacted PTA regarding falling on the temporary carpark PTA constructed. (PTA are following up.)
[10] Walter's affidavit pars 19 – 21 and annexures L and M.
On 29 May 2014, Chip McCallum, the Occupational Safety and Health Coordinator of the PTA, wrote an email to Jon Cheesbrough of Valmec on the subject of 'Slip Trip Bassendean'. The email read as follows:[11]
[11] Walters' affidavit annexure M.
Hi Jon
Below is what I sent to our staff. Please inform relevant personnel at Valmec issue think it is necessary.
Good Afternoon
I have been brought in late on this one but I have some information I would like to pass on.
After speaking with Mike and taking a suggestion from Peter I went to see Phil Rakich, Manager Corporate Issues and ended up speaking to Maria Devlin, Executive Assistant Legal.
Maria was very helpful and imparted some very reasonable and relevant information to me.
She has forwarded me a letter that will be sent to the claimant if necessary. This letter needs to be completed by the claimant and then sent back to the email address on the template and then that is sent to RiskCover who will determine any action that is to be taken.
Contact has already been made to the injured person and that is all we should do. Unless the injured person contacts us, and please put them in contact with me straightaway, there need be no further action to be taken.
This type of issue can be tricky to deal with so it was good to talk to someone in the know!
Kind Regards
Mr Gladstone telephoned the PTA again on 13 June 2014, because he had not received any response from either Valmec or the PTA. He telephoned the PTA again because that was who he had spoken with on 26 May 2014.[12]
[12] Gladstone affidavit par 8; also Thuijs affidavit annexure ELT-1 page 3, email from Mike Williams dated 16 July 2014 to Malcolm Mclean, Natasha Guerinoni and PTA Legal Services.
Mr Gladstone spoke to Mike Williams and asked why he had not been contacted by anyone in relation to his injury. Mr Williams advised Mr Gladstone that he had spoken to his safety department and they were going to handle it. He then advised Mr Gladstone that he would follow up with them and they would contact him.[13]
[13] Gladstone affidavit annexures A and B under the heading 'Friday, 13 June 2014'.
Mr Gladstone did not receive any further communication from the PTA and not speak with anyone from the PTA after 13 June 2014.[14]
[14] Gladstone affidavit par 11.
In light of what Mr Gladstone perceived to be a lack of communication from Valmec and the PTA, Mr Gladstone instructed his lawyer, Mr Walters to act on his behalf.[15]
[15] Gladstone affidavit par 11.
Mr Gladstone provided a copy of the photograph he had taken of the sign to Mr Walters, following which Mr Walters caused investigations to be undertaken as to the corporate identity of the contractor known as 'Valmec'. The result of the investigations carried out by Mr Walters revealed Valmec to be Valmec Holdings Pty Ltd (ACN 162 343 062).[16]
[16] Walters affidavit par 4 and 5.
Mr Walters also wrote a letter dated 23 June 2014 addressed to 'Transperth Train Operations', giving notice that Mr Gladstone intended to make a claim for damages for personal injury sustained in the accident which occurred at the Bassendean Train Station car park on 26 May 2014. Mr Walters requested that Transperth Train Operations carry out investigations into the accident and advise whether liability would be admitted.[17]
[17] Walters affidavit par 26 and annexure O.
On 1 July 2014 Mike Williams of the PTA forwarded the email chain I have referred to in [30], [32] and [33] above to Maria Devlin, the Executive Assistant Legal of PTA Legal Services. Maria Devlin then sent an email to Malcolm McLean, Natasha Guerinoni and Elizabeth Jones, also on 1 July 2014, with the subject 'Call from injured man near Bassendean station – car park works', saying:[18]
Hi Malcolm/Natasha/Elizabeth
We have received a letter from Mr Gladstone's lawyer advising he wishes to make a claim for damages from this incident.
Could you please let us know if you spoke or had any correspondence with him following the incident other than the below email chain.
Thanks
[18] Thuijs affidavit annexure ELT-1 page 5.
On 16 July 2014, Maria Devlin wrote again to Malcolm McLean, Natasha Guerinoni and Elizabeth Jones, asking for a response to the email she sent on 1 July 2014. Natasha Guerinoni responded on the same day as follows:[19]
Hi Maria
I have had no direct contact with the gentleman. He had initially called Elizabeth and explain to her what had happened.
I then notified Malcolm who was following up with the contract as to whether the hazard was as a result of our work. I believe we have had no confirmation yet.
Malcolm – would you like me to follow-up on this one?
Kind regards
Natasha
[19] Thuijs affidavit annexure ELT-1 page 4.
On the same day, 16 July 2014, Malcolm McLean responded, apologising and saying that he had been on annual leave, but that Mike Williams had been 'doing Bassendean' so he would pass a note on to him to see if he has any further information.[20]
[20] Thuijs affidavit annexure ELT-1 page 3.
Mr Williams then sent the following email on 16 July 2014 to Malcolm MacLean, Natasha Guerinoni and PTA Legal Services:[21]
Hi Maria
I originally referred the matter to Chip McCallum in Safety and Strategy who told me that S&S would handle the matter and to refer all future correspondence with the complainant to them.
According to Mr Gladstone, the incident took place on Prospector Loop Bassendean adjacent to a temporary hard stand parking area on the street verge (not PTA land) which was installed by PTA Facilities and Infrastructure Contractors.
The surface of the road was littered with blue metal chips that had been dislodged from the parking area creating a trip/slide hazard. I visited the site the next day and took the attached photos.
The trip hazard was not caused by works within the construction site of a new car park nor from the activities of the car park Contractor, Valmec.
Please don't hesitate to call me if you have any further queries.
Kind Regards
[21] Thuijs affidavit annexure ELT-1 page 3.
I pause to observe here that none of the documents I have set out in [30] to [46] above were provided to either Mr Gladstone or his lawyer, Mr Walters, at the time. The Projects Operation Weekly Meeting minutes dated 28 May 2014 and the email from Mr Chip McCallum dated 29 May 2014 was obtained by Mr Walters in July 2017 (see [67] below), and the other emails were annexed to the affidavit sworn by Ms Thuijs in opposition to this application.
On 18 July 2014, RiskCover wrote to Mr Walters in response to his letter to Transperth Train Operations. RiskCover advised that as the liability fund managers for the PTA, RiskCover had been forwarded Mr Walters' correspondence addressed to Transperth dated 23 June 2014. The letter requested that Mr Walters provide a map and photographs of the area indicating exactly where Mr Gladstone's accident was said to have occurred.[22]
[22] Walters affidavit annexure P.
The information requested in the letter from RiskCover to Mr Walters dated 18 July 2014 was, I find, not required. It is clear from the Projects Operation Weekly Meeting minutes dated 28 May 2014 (see [35 above]) and the email from Mr Williams dated 16 July 2014 (see [46] above) that the PTA knew exactly where Mr Gladstone's accident had occurred (and Mr Williams had taken photographs) and knew that the PTA, and not Valmec, was responsible for the temporary carpark.
It is apparent that Mr Walters did not respond to the letter from RiskCover dated 18 July 2014, because RiskCover wrote again to Mr Walters by letter dated 6 October 2015 stating 'we note you have failed to provide details of your client's claim and liability has not been admitted'.[23]
[23] Walters affidavit annexure Q.
The affidavits sworn in support of Mr Gladstone's application do not enlighten me as to what happened between Mr Walters' receipt of the letter from RiskCover in October 2015 and the next thing which, according to the affidavits, occurred on 2 February 2017.
I have, however, been provided with one further item of correspondence written by Mr Walters to RiskCover dated 13 May 2016, referring to previous correspondence about Mr Gladstone and enclosing a medical report from Dr Ross Goodhart dated 2 May 2016. It appears that RiskCover did not respond to this correspondence.[24]
[24] Thuijs affidavit annexure ELT-2.
On 2 February 2017, Mr Gladstone provided Mr Walters with instructions to commence proceedings seeking damages for the injury Mr Gladstone sustained on 26 May 2014. Mr Walters caused a writ of summons and statement of claim to be filed on 13 February 2017, in District Court Action CIV 390 of 2017, against Valmec Holdings Pty Ltd.[25]
[25] Walters affidavit par 6 and annexure C.
By letter dated 13 February 2017, Mr Walters wrote to Valmec enclosing a copy of the writ of summons and suggesting that it refer Mr Gladstone's claim to its public liability and occupiers' liability insurer.[26]
[26] Walters affidavit par 7 and annexure D.
Mr Walters also sent RiskCover a copy of the writ by letter dated 13 February 2017, advising it would be served on the defendant. There was no response by RiskCover.[27]
[27] Walters affidavit annexure R.
The writ of summons was served on Valmec on 15 February 2017.[28]
[28] Walters affidavit par 8.
The indorsement on the writ reads[29]:
The Plaintiff's claim against the Defendant is for damages for personal injuries arising from an accident at the Defendant's premises which occurred on 26 May 2014 which accident was caused by the negligence of the Defendant in breach of section 5 of the Occupier's Liability Act (WA) 1985.
[29] Walters affidavit annexure C.
In the accompanying statement of claim of claim it was pleaded that:
(a)at all material times Valmec was the body responsible for the management and maintenance of the Car Park Expansion Project at Bassendean Train Station, located on Railway Parade in Bassendean ('the premises') and was thereby an occupier of the premises pursuant to the Occupier's Liability Act 1985;[30]
(b)Mr Gladstone had been walking through the temporary car park towards the train station when he slipped on blue metal debris. It was pleaded that the accident and resulting injuries been caused by the negligence and/or breach of statutory duty of care owed by Valmec by reason of the provisions of s 5 of the Occupiers Liability Act.[31]
[30] Walters affidavit, annexure C, page 18, statement of claim par 3.
[31] Walters affidavit annexure C page 19, statement of claim par 4 and 5.
By facsimile dated 24 February 2017, solicitors for Valmec, HBA Legal, advised Mr Walters that they were acting, that the corporate entity trading as 'Valmec' at the time of Mr Gladstone's accident was Marcon Pty Ltd, which in turn had changed its corporate name to Valmec Australia Pty Ltd. Accordingly, Valmec Australia Pty Ltd was the correct entity to be named as the defendant in the action.[32]
[32] Walters affidavit par 9 and 10 and annexure E.
In light of the information provided by HBA Legal, Mr Walters arranged to amend the writ of summons to name Valmec Australia Pty Ltd as the defendant in action.[33]
[33] Walters affidavit par 11.
Valmec entered an appearance in the action and served a copy of the memorandum of appearance on Mr Walters' office on 24 March 2017.[34]
[34] Walters affidavit par 12 and annexure F.
On 21 April 2017, Valmec filed and served a defence in the action, admitting that it was engaged by the PTA pursuant to a contract to manage the construction of a new hardstand car park at the Bassendean Train Station, but otherwise not admitting or denying the allegations in the statement of claim.[35]
[35] Walters affidavit annexure G.
The defence contained no pleading (or indeed any reference at all) to Valmec not having constructed or not being responsible for the temporary car park.
The limitation period for Mr Gladstone's claim expired at midnight on 25 May 2017.
On 16 June 2017, Valmec served on Mr Walters' office an informal list of discoverable documents.[36]
[36] Walters affidavit par 15 and 16.
Subsequently by facsimile dated 13 July 2017, HBA Legal advised it was investigating Valmec's position concerning liability, including whether the PTA ought to be the defendant to the action.[37]
[37] Walters affidavit par 17 and annexure J.
By letter dated 20 July 2017, HBA Legal provided Mr Walters with copies of the documents he had requested from Valmec's discovery. Included in those discoverable documents were copies of the Projects Operations Weekly Meeting minutes dated 28 May 2014, (the contents of which I have set out in [35] above) and a copy of the email from Chip McCallum of the PTA to Jon Cheesbrough dated 29 May 2014 (the contents of which I have set out in [36] above).[38]
[38] Walters affidavit par 19 ‑ 21 and annexures L and M.
On 8 August 2017, Valmec served interrogatories for answer by Mr Gladstone and Mr Gladstone swore an affidavit answering the interrogatories on 28 September 2017.[39]
[39] Walters affidavit par 22 and annexure J.
This was followed by the letter dated 11 October 2017 from the solicitors for Valmec. The letter set out a figure (photograph) depicting Valmec's worksite in green and the temporary car park in red. The letter advised that the temporary car park did not form part of Valmec's contract works, Valmec did not build the temporary car park and had nothing at all to do with the temporary car park or the road adjacent to it. All material times the site of Mr Gladstone's accident, including the temporary car park, was occupied by the PTA.
Findings and conclusion
I find that prior to the expiration of the limitation period on 25 May 2017, Mr Gladstone had made enquiries as to the identity of the contractor undertaking works at the place where he slipped and injured his ankle.
I find that the information provided by Elizabeth Jones of the PTA to Mr Gladstone was that it was the PTA's contractor, Valmec, who was responsible for his claim. That information was consistent with the sign which stated that Valmec was the contractor for the Car Park Expansion Project.
Notwithstanding the email from Mr Chip McCallum to Valmec dated 29 May 2014, which indicated that the PTA would deal with Mr Gladstone's claim, I find that the PTA did not deal with Mr Gladstone's claim, even after he contacted them again on 13 June 2014.
I find that so far as Mr Gladstone was aware, both from the sign at the site and from what he had been told by Ms Jones, Valmec was the responsible entity and neither Mr Gladstone nor his lawyer, Mr Walters, was told otherwise, even after Mr Walters' letter of 23 June 2014.
I find that Mr Gladstone issued proceedings in District Court Action CIVO 390 of 2017 against Valmec on the understanding that Valmec was responsible for the construction of the Car Park Expansion Project and that the temporary car park formed part of that Project. The statement of claim filed on Mr Gladstone's behalf identified the place where the incident took place, namely the temporary car park, as being part of the 'premises' occupied by Valmec.
The defence filed and served by Valmec did not raise any suggestion that it was not responsible for or was not the occupier of that temporary car park.
Mr Walters has deposed, and I have no reason to doubt this, that prior to the expiration of the limitation date, he did not receive any communication from either Valmec or its solicitors which identified or suggested that the PTA had constructed the temporary car park, or that the temporary car park fell outside the works that Valmec was contracted by the PTA to undertake.[40]
[40] Walters affidavit par 25.
Mr Walters has also deposed that both at the time of commencing proceedings in District Court Action CIVO 390 of 2017, and at the time of the expiry of the limitation period, he was not in possession of, or aware of, any evidence that the PTA had constructed the temporary car park, or that the temporary car park did not form part of the Car Park Expansion Project at the Bassendean Train Station. Until he received the letter from HBA Legal dated 11 October 2017, he was unaware that Valmec would be arguing that it did not construct the temporary car park and that did not form part of its contractual works.[41]
[41] Walters affidavit par 31 to 33.
The parties have proceeded on the basis that Mr Gladstone's application falls to be considered under s 39(3)(c). However, this may well be a situation which falls within s 39(3(b). As discussed by O'Neal DCJ in Ghiassi v Industrial People Pty Ltd [2012] WADC 23 [21] and [22]:
… 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) …
In this case, Mr Gladstone believed that Valmec occupied the temporary car park where he slipped and suffered his injury. He and his lawyer mistakenly believed that the temporary car park formed part of the works for which Valmec was responsible. It was only after the limitation period had expired that Mr Gladstone became aware that those works did not include the temporary car park.
Accordingly, this is a case where, because of a mistake about who was responsible for the temporary car park, Mr Gladstone and his lawyer were not aware when the limitation period expired that the PTA was a person to whose conduct Mr Gladstone's injury was attributable.
In either case, whether the application falls to be considered pursuant to s 39(3)(b) or s39(3)(c), the same tests apply.
Applying the test of actual awareness, not constructive awareness, I am satisfied that Mr Gladstone, either personally or through his lawyer, was not aware before the expiry of the limitation period on 25 May 2017 that his injury was attributable to the conduct of the PTA.
I am therefore satisfied, pursuant to either or both of s 39(3)(b) or s 39(3)(c) that the power to grant leave is enlivened. The real issue is whether Mr Gladstone or his lawyer ought to have become aware, earlier than they did, that Mr Gladstone's injury was attributable to the conduct of the PTA, and not Valmec.
At the hearing of this application, the PTA submitted that Mr Gladstone failed to make reasonable inquiries to ascertain the identity of the occupier of the premises (as defined in the statement of claim, as I have set out in [58](a) above) before the expiry of the limitation period and his application must fail. It was submitted that:
(a)Mr Gladstone was aware from the photograph of the sign that there were several potential occupiers of the premises. (There was a further oral submission that Mr Gladstone would have seen from the sign that the PTA was the occupier for the Car Park Expansion Project'.[42]) There is no evidence that Mr Gladstone, (by himself or by his lawyer) conducted any inquiries to ascertain the identity of the occupier of the premises aside from conducting an ASIC search of the name 'Valmec'.
(b)It can be inferred from Mr Walters' correspondence with RiskCover, both in 2014 and 2016, that Mr Walters, and thus his client, Mr Gladstone, either knew or ought to have known that PTA was the occupier of the premises.
(c)Mr Walters, as a lawyer for Mr Gladstone, should have done more to ascertain the identity of the PTA as the occupier of the premises.
[42] Counsel for the PTA's oral submission ts 17.
As I have already observed, the difficulty for Mr Gladstone arises because he did not know that Valmec's contract did not include the temporary car park. The temporary car park is near or adjacent to those works but, as it is now known, does not form part of those works.
I will therefore proceed on the basis that when the submissions made by the PTA refer to 'premises' this relates to the temporary car park.
I consider the submissions made by the PTA that Mr Gladstone and his lawyer, Mr Walters, either knew or ought to have known that the PTA was the occupier of the temporary car park to be disingenuous, for the following reasons.
First, when Mr Gladstone contacted the PTA and spoke to Elizabeth Jones, he was informed that the person responsible was PTA's contractor. Neither Mr Gladstone nor his lawyer was ever told anything different.
Secondly, I find that at all relevant times from 27 May 2014, the PTA knew that Mr Gladstone had slipped and suffered his injury when walking through the temporary car park. The email from Mr Williams of 16 July 2014 confirmed that he had carried out investigations 'the next day' ie the day after the incident, knew exactly where Mr Gladstone's incident had occurred – 'on Prospector Loop Bassendean adjacent to a temporary hard stand parking area on the street verge … which was installed by PTA Facilities and Infrastructure Contractors' – had seen blue metal chips dislodged from the parking area creating a trip/slide hazard and took photographs. The PTA also knew that it and not Valmec, was responsible for that temporary car park, as evidenced by both Mr Williams' email and the minutes of the Project Operations Weekly Meeting held 28 May 2014.
In fact, not just the PTA but also Valmec knew from 28 May 2014 that Mr Gladstone's injury was attributable to the conduct of the PTA. Neither advised Mr Gladstone or his lawyer.
Thirdly, the PTA could have informed Mr Gladstone that the PTA was the person responsible when Mike Williams spoke to Mr Gladstone on 13 June 2014, and again in response to Mr Walters' letter of 23 June 2014, but did not do so.
The PTA has submitted that, acting reasonably, Mr Walters on behalf of Mr Gladstone should have responded to RiskCover's letter of 18 July 2014. The PTA has submitted that had this been done, Mr Gladstone ought to have become aware of the identity of the PTA within six months of receiving RiskCover's letter.
Again I have a real difficulty with this submission from the PTA, particularly in light of the fact that the details which RiskCover requested in its letter of 18 July 2014 were already in the possession of its insured, the PTA, as I have set out in [49] above.
This submission also assumes that Mr Walters needed to respond to RiskCover's letter of 18 July 2014. I am not satisfied that Mr Walters did need to respond, when he knew that his client Mr Gladstone had told the PTA where his accident occurred - the location of the accident (ie the temporary car park) is pleaded in the statement of claim - and had been told that it was Valmec's responsibility. Based on the information in possession of his client, Mr Walters made the decision to issue proceedings against Valmec.
In addition, I have no evidence that if Mr Walters had responded to RiskCover's letter of 18 July 2014 and provided the requested details, RiskCover's response would have been to admit that PTA occupied the temporary car park or that Mr Gladstone's injuries might be attributable to the conduct of the PTA.
I note that, still within the limitation period, Mr Walters wrote again to RiskCover by letters dated 13 May 2016 and 13 February 2017 (enclosing a copy of the writ against Valmec in District Court Action CIV 390 of 2017) and RiskCover did not respond. I do not suggest that RiskCover had to respond to this correspondence, however, by electing not to respond RiskCover perpetuated the belief held by Mr Gladstone and his lawyer that the responsibility for the temporary car park was Valmec's.
Counsel for the PTA submitted that there were other ways of discovering the identity of the occupier of the temporary car park, in particular that an application for pre‑trial or third party discovery from the PTA ought to have been made. This submission proceeds on the basis that the sign disclosed that someone other than Valmec occupied the temporary car park and that Mr Gladstone should have seen from that sign that the PTA was the occupier and, therefore, brought an application for discovery from the PTA.
I am not satisfied that the sign did disclose this. The sign said that the Car Park Expansion Project was 'another State Government Project' and that further information could be obtained from the PTA website. There was only one contractor named, which was Valmec, and this was in a position of prominence at the bottom of the sign. Looking at the sign objectively, I am not satisfied that the sign disclosed the PTA as the occupier or joint occupier.
The PTA's submission also does not take into account that:
(a)The PTA had told Mr Gladstone that its contractor was responsible for his claim.
(b)The writ in District Court Action CIV 390 of 2017 was issued in February 2017 (some months before the expiry of the limitation period) and there was no indication from Valmec, particularly given the defence filed, that it was not the occupier of the temporary car park.
In addition, as correctly pointed out by counsel for Mr Gladstone, pre‑action discovery may not have returned the emails, including the email dated 16 July 2014 from Mr Williams, as these were written in the context of a claim and a request from PTA's legal advisor, Ms Devlin, and were subject to legal professional privilege. (That privilege has, since this application, been waived).
In the particular circumstances of this case, I find that the inquiries undertaken by both Mr Gladstone personally and by his lawyer, Mr Walters, were reasonable inquiries. From the result of those inquiries, including information provided by the PTA, they had ascertained the person's identity as Valmec. In my view, it was not unreasonable to assume that the temporary car park fell within the Car Park Expansion Project work being carried out by Valmec: Ghiassi v Industrial People Pty Ltd [33].
Pursuant to s 39(4) of the Act, I am satisfied that the time from when Mr Gladstone became aware or ought reasonably to have become aware of the identity of the PTA as the person to whom the injury was attributable was after his lawyer, Mr Walters, received the discoverable documents from Valmec, in particular the Projects Operations Weekly Meeting minutes of 28 May 2014. Those discovered documents were sent by Valmec's solicitors by letter dated 20 July 2017.
I am not satisfied that any further inquiry by Mr Gladstone or his lawyer would have led to them becoming aware, earlier than they did, that Mr Gladstone's injury was attributable to the conduct of the PTA, rather than Valmec.
The PTA has submitted that the delay has led to prejudice, on the basis that while it was notified of Mr Gladstone's intention to claim shortly after the accident, he did not provide particulars of the claim as requested and the PTA has not had the circumstances of the claim investigated. The car park is no longer there and the PTA will 'therefore be arguably prejudiced' if the orders sought are made.
I am unable to accept these submissions from the PTA. As evidenced by the email from Mr Williams dated 16 July 2014, Mr Gladstone did provide particulars and Mr Williams investigated the next day, which included the taking of photographs.
Accordingly, I am satisfied, pursuant to s 44 of the Act, that:
(a)Given the inquiries made by the PTA at the relevant time, the delay in commencing the proposed action would not unacceptably diminish the prospects of a fair trial of the action; and
(b)The PTA would not be significantly prejudiced by an extension of time other than by reason of the commencement of the proposed action.
This is also, in my view, a situation where the PTA cannot approbate and reprobate. After Mr Walters' letter of 23 June 2014, either the PTA or its insurer elected to call for further information concerning the location of Mr Gladstone's accident when that information was not needed, and then elected not to communicate the true position – that the PTA occupied and controlled the temporary car park – to either Mr Gladstone or his lawyer. The PTA cannot now use Mr Gladstone's lack of awareness of the identity of the occupier of the temporary car park to deny him the benefit of an extension of time under the Act.
In the circumstances, I am satisfied that it is appropriate to exercise my discretion to extend the time within which Mr Gladstone may commence an action against the PTA, and I will grant Mr Gladstone leave to do so. I will hear from the parties as to the exact terms of the orders I should make.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
DC
ASSOCIATE TO JUDGE DAVIS15 NOVEMBER 2018
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