Gormley v Intro Management (Adelaide) Pty Ltd
[2005] VSC 386
•12 October 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 6357 of 2002
| DAVID GORMLEY | Plaintiff |
| v | |
| INTRO MANAGEMENT (ADELAIDE) PTY LTD (ACN 071 338 764) | Firstnamed Defendant |
| - and - | |
| KONE ELEVATORS PTY LTD (ACN 000 142 423) | Secondnamed Defendant |
| - and - | |
| AES AUSTRALIA PTY LTD (ACN 051 235 002) | Third Party |
JUDGE: | Bell J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 and 22 March 2005 | |
DATE OF JUDGMENT: | 12 October 2005 | |
CASE MAY BE CITED AS: | David Gormley v Intro Management (Adelaide) Pty Ltd and ors | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 386 | |
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Common law – Judgment – Application for extension of time pursuant to s 48 Limitations of Actions Act 1936 (SA) – Time for instituting an action extended.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Tobin SC | Beck Legal Pty Ltd |
For the Firstnamed Defendant | Mr D. O’Callaghan | Monahan & Rowell |
For the Secondnamed Defendant | Mr C. Blanden | Cornwall Stodart |
| For the Third Party | Mr J. Mighell | Landers & Rogers |
HIS HONOUR:
INTRODUCTION
David Gormley was caught in a defective lift in the Myer Centre in Rundle Mall in Adelaide that fell at least 10 floors then bounced up and down. He was working as a builder fitting out a sports store. Mr Gormley says over time he developed back problems that are now so bad he cannot work as a builder again. His case is that the fall in the lift caused these problems. He wants to recover damages from two companies responsible for the operation and maintenance of the lift.
The two companies are Intro Management (Adelaide) Pty Ltd and Kone Elevators Pty Ltd. Mr Gormley alleges Intro Management occupied the building and operated the lift while Kone Elevators was responsible for maintaining it. He contends these companies, not Myer, are the correct defendants, but he did not find this out for some time.
Under the laws of South Australia, you have to commence an action for damages within three years of being injured by the negligence of another person[1]. However, this time can be extended if you later discover a fact material to your case, commence your action within 12 months of doing so and a court thinks it is just to grant the extension in all the circumstances[2].
[1]Section 36(1) of the Limitations of Actions Act 1936 (SA).
[2]Sections 48(1) and 48(3)(b) of the Act.
Because the lift fell on 22 April 1998, Mr Gormley had until 22 April 2001 to sue the two companies. He did not do this until 12 July 2002 in the case of Intro Management and 21 September 2004 in the case of Kone Elevators. Therefore he needs the Court to grant an extension of time before he can continue with his action. This one issue has been listed for the Court’s consideration.
Mr Gormley submits that the roles of the two companies in relation to the lift are facts material to his case and that he commenced his action within 12 months of finding out what their respective roles were.
The companies do not dispute that their roles are material facts, which they plainly are. If the companies were responsible for the operation and servicing of the lift, as Mr Gormley alleges, they should be defendants in his action. Few if any facts are more material to a plaintiff’s case than the identity of the correct person to sue.
Intro Management’s case is that Mr Gormley should not be believed when he says he only found out much later it was the operator of the lift. In respect of this company the issues are, first, when Mr Gormley obtained this information and, second, whether it is just in all the circumstances to grant the extension.
Kone Elevators does not dispute Mr Gormley did not find out it was responsible for maintaining the lift until June 2004. He issued an action against this company within 12 months of doing so (see above). Therefore, in respect of this company, the only issue is whether it is just in all the circumstances to grant the extension.
Counsel appeared on behalf of the third party in the action, AES Australia Pty Ltd. He adopted the submissions made on behalf of the other two companies.
WHEN DID MR GORMLEY FIND OUT ABOUT THE ROLE OF INTRO MANAGEMENT?
Intro Management submitted Mr Gormley knew about the role of this company when the lift fell because he admitted in cross-examination that he used to report to the company to sign in when he was working in the building. It also submitted Mr Gormley was not a witness of credit.
The attack on Mr Gormley’s credit will be dealt with below.
Mr Gormley deposed that he thought the building was managed by Myer and workers signed in with Intro Management at a security point to show they were present. He was not sure what the company’s business was. This evidence is accepted.
Mr Gormley’s then solicitors were Beck Legal and Ms D’Wynn took over his file when she commenced employment with this firm in late March 2002. It may be inferred from the evidence of Mr Gormley and Ms D’Wynn that he found out Intro Management was the operator of the lift when his solicitors told him after late August 2001. He probably found out after late March 2002 when Ms D’Wynn commenced employment. It cannot be inferred from the fact that he used to sign in with the company that he knew of its role earlier.
The Court finds that after the expiration of the limitation period (22 April 2001) and after late August 2001 Mr Gormley ascertained a fact material to his case (that Intro Management operated the lift) and that within 12 months of ascertaining this fact (12 July 2002) he instituted his action against the company.
IS IT JUST TO GRANT AN EXTENSION OF TIME?
The relevant considerations
Under the South Australian legislation the Court has a general discretion to extend the limitation time. In Reid v AGGO Australia Ltd and ors[3] Ashley J, as he then was, listed a number considerations as being possibly relevant to the exercise of that discretion, which I paraphrase as follows:
[3][2000] VSC 363 (12 September 2000).
·The length of the delay.
·The plaintiff’s explanation for the delay.
·The hardship to the plaintiff if the action is dismissed and the cause of action left statute barred.
·The prejudice to the defendants if the action is allowed to proceed notwithstanding the expiration of the limitation period.
·The extent to which, having regard to the delay, the evidence is likely to be less cogent than if the action had been brought within the time allowed.
·The conduct of the plaintiff.
·The conduct of the defendants.
·The relative importance or unimportance of the facts material to the plaintiff’s case which have satisfied the statutory requirements.
·Whether the facts material to the plaintiff’s case were discovered by contrivance, or artificially, or should be regarded as genuine.
The companies agreed that these were the kinds of considerations that had to be taken into account in the instant case.
Both companies strongly pressed submissions that in all the circumstances it was not just to extend the time. They submitted Mr Gormley could and should have acted earlier, his evidence as to why he had not done so was not creditworthy and the companies would suffer prejudice if he were to be allowed to proceed.
Mr Gormley’s explanation for the delay, and his conduct
Mr Gormley initially based his case for an extension on the basis that his late appreciation of the nature of his back injury was a material fact. The contents of the affidavits filed in support of his application, including his own, reflected this approach. Ultimately he relied upon his discovery of the roles of the companies as material facts. The companies attempted to use this change of tack against Mr Gormley to show that his testimony lacked credit.
Counsel for the companies cross-examined Mr Gormley extensively on his evidence that it was not until about June 2002 that he realized his back problems were so bad that he would need to avoid physical work. They pointed to the contents of the reports of his consultant neurosurgeon, Dr Brazenor, from March 2000 and following, which informed Mr Gormley that his injury was serious and would significantly impair his capacity for work. He acknowledged signing a workers compensation claim form, which had been filled out by his business partner, on 27 April 2000.
Had he been thinking clearly, Mr Gormley would have realized from the information and advice given to him that his back condition was very serious. For example, in June 2000 Dr Brazenor told him to stop hands-on building work or have a spinal fusion. But Mr Gormley was not thinking clearly and he cannot be blamed for that. Prior to the incident in the lift he was a builder. This was what he had trained for and was all he was qualified to do. He had something of a bad back, hardly unusual for a builder, but this had not stopped him from working. Then he was in the lift when it fell some 10 floors. Afterwards he developed back problems that stopped him from doing his normal work. This created a personal crisis for Mr Gormley, and he was confronting other family issues as well. He sought medical advice but appreciated only some of what his doctors were saying to him about the severity of his condition. His doctors did not take his tools from him, as he put it, so he reduced but did not stop his manual work. He tried everything to hang on to the working life that he had known, but his condition worsened. He then attempted to work mainly in the supervision of the work of others, although of course he could not avoid doing manual work entirely. Time passed. Ultimately he was driven to acknowledge that he would not be able to work as a builder again and needed a spinal fusion that he could not afford.
Counsel for Intro Management, in submissions adopted by counsel for Kone Elevators, described Mr Gormley’s evidence of his knowledge of his medical condition as patently false, prevaricating, vague and evasive. Nothing could be further from the truth. Mr Gormley was an impressive witness who gave a compelling account of a man struggling to come to terms with the impact upon his life of an injury allegedly caused by the negligence of the companies.
The length of the delay is to be reckoned from the time when the lift fell. Mr Gormley should have sued the companies within three years. In fact it took him some four years and three months to sue Intro Management and some six years and five months to sue Kone Elevators. Mr Gormley has provided a reasonable and adequate explanation for this delay. There was nothing in his evidence about discovering the role of Intro Management that raised doubts about his credit.
Hardship to Mr Gormley if time is not extended
Intro Management submitted Mr Gormley would not suffer undue hardship if time was not extended because he had a “modest” claim at best. Kone Elevators submitted the seriousness of the aggravation of Mr Gormley’s back injury had “not convincingly been demonstrated”.
Before the lift fell, Mr Gormley was a builder with a back complaint that had never prevented him from working. After the lift fell, despite all his efforts, his back was so bad he could not return to his work. His medical advice is that, although he is only 44, he can never do physical work again, ie be a builder. A spinal fusion has been recommended. Mr Gormley contends that, because they operated and maintained the lift, the companies are responsible for his loss of earnings and pain and suffering. Even admitting that this loss has not yet been quantified, the descriptions “modest” and “not convincingly demonstrated” are hardly apt for the nature of Mr Gormley’s case.
Both companies pointed to the lack of evidence of Mr Gormley’s loss of earnings. It is not reasonable to expect him to present such evidence at this stage. It is enough to know that, if the negligence of the companies caused or aggravated Mr Gormley’s back complaint, the damages will reflect the degree of the injury or aggravation, which may be substantial, depending upon the medical and other evidence.
Mr Gormley would suffer substantial hardship if the limitation time were not to be extended because he would not be able to continue with his action against the companies.
The prejudice to Intro Management and Kone Elevators if time is extended and whether the evidence will be less cogent
The companies relied upon the general prejudice that participation in the litigation would necessarily involve. They submitted their conduct did not cause the delay or warrant criticism. They submitted that, with the passing of time, lines of inquiry may be more difficult to explore and the cogency of the evidence may have declined. These submissions were put as generalisations and may be accepted as far as they go. However the submissions do not go far enough of themselves to require Mr Gormley’s application for an extension of time to be refused and there is nothing in the specific circumstances of this case to take them further.
Intro Management understandably expressed exasperation that it contracted Kone Elevators to maintain the lift yet was caught up in this litigation. The liability of one or other or both of the companies is an issue in the litigation and gives rise to no prejudice requiring Mr Gormley’s application to be refused.
The significance of the material fact relied upon and whether the fact was contrived
Intro Management submitted Mr Gormley ought to have known the company operated the lift or should have taken steps to find out, and it was unreal or artificial for him now to say he only found this fact out later.
The issues concerning Mr Gormley’s state of mind about the role of Intro Management have already been dealt with. Mr Gormley did not contrive his lack of knowledge of the company’s role to get an extension of time. If he had intended to do so, he would have relied upon this basis from the start.
Kone Elevators submitted Mr Gormley should have sued Myer because it was an obvious target. This would probably have led to the role of the companies being discovered earlier. There is force in this submission but the answer to it lies in Mr Gormley’s explanation for the delay generally (see above) and the need to work out exactly who was the occupier of, and responsible for maintaining the lifts in, the building.
CONCLUSION
Mr Gormley was caught in a defective lift that fell 10 floors then bounced up and down. Gradually he came to appreciate that the fall hurt his back so badly that he could not work again as a builder. He took time to find the companies responsible for the operation and maintenance of the lift then issued a legal action against them. However he did this out of time and needs an extension before he can continue.
The companies opposed Mr Gormley’s application and attacked his credit in doing so. But he has established that he sued the companies within 12 months of ascertaining a fact material to his case and has satisfactorily explained the delay. Far from lacking credit, Mr Gormley was an impressive witness whose testimony is accepted. In all of the circumstances it is just to grant the extension of time that he seeks.
Pursuant to s. 48(1)(a) of the Limitations of Actions Act 1936 (SA) the time for instituting an action against Intro Management is extended until 12 July 2002 and against Kone Elevators until 21 September 2004.
I will hear counsel in relation to the question of costs.
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