Iluka Corporation Ltd v Hill

[2002] TASSC 51

[2002] TASSC 51

CITATION:                 Iluka Corporation Ltd & Anor v Hill [2002] TASSC 51

PARTIES:  ILUKA CORPORATION LTD (ACN 000 048 464)

RENISON LTD (ACN 004 490 304)
v
HILL, Richard Grant Manners

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  868/2001
DELIVERED ON:  22 August 2002
DELIVERED AT:  Hobart
HEARING DATE:  30 July 2002
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Limitation of Actions - Postponement of the bar - Extension of period - Cause of action in respect of personal injuries - Principles upon which discretion exercised - Explanation for delay - Prima facie case - Prejudice.

Limitation Act 1974 (Tas), s5(3).
Aust Dig Limitation of Actions [55]

REPRESENTATION:

Counsel:
             First Named Appellant:                  C P Webster
             Second Named Appellant:              F V Moore
             Respondent:  D A Shelley
Solicitors:
             First Named Appellant:                  Wallace Wilkinson & Webster
             Second Named Appellant:              Archer Bushby
             Respondent:  Page Seager

Judgment  Number:  [2002] TASSC 51
Number of paragraphs:  15

Serial No 51/2002
File No 868/2001

ILUKA CORPORATION LTD (ACN 000 048 464) and RENISON LTD
(ACN 004 490 304) v RICHARD GRANT MANNERS HILL

REASONS FOR JUDGMENT  COX CJ

22 August 2002

1. This is an appeal from the Master, who made an order extending the time limited for bringing an action for personal injury until the date upon which the writ herein was, in fact, issued, namely 26 July 2001.  The appeal is de novo on the materials before the Master, which included the cross-examination of the respondent/applicant on an affidavit sworn by him for the purposes of the application.  In addition, the respondent has filed and had read on the hearing before me, a further affidavit of his solicitor in Western Australia deposing to having found the present whereabouts of, and having spoken to, one Tim Hunter, who is said to have been a witness to the original incident giving rise to the claim.

1. The respondent to the appeal suffered injury when he fell off a ladder inside the mine then operated by the second named appellant on or about 9 March 1998.  He was employed as a geologist by the first named appellant and had been so employed for a period of about one month.  After a two week course in New South Wales dealing with team building and management issues, he was sent to Zeehan, in Tasmania, to commence work at the second named appellant's tin mine under the supervision of a geologist, Mr Tim Hunter.  He had some below-ground safety training, but within about two weeks of commencing to work at the mine, he had the accident which is the subject of these proceedings.  His clothing issue had not arrived and he was wearing apparel principally used by visitors to the mine, including a pair of steel-capped Wellington boots, which he claims were too big for him, the right size not being available.  He had only been underground a few times and was not used to the environment.  He was required to climb up an underground ladder about three metres long with a small group of others and thereafter to descend it.  He was the last to descend the ladder and as he was part way down, he lost his footing and fell awkwardly onto some rocks about one metre below, injuring his back and right buttock.  In his affidavit in support, he said that the ladder was quite wet, greasy, dirty and rusting and the environment was quite damp.  There was no lighting at that spot and the party was reliant upon their helmet lamps to see where they were going.  He managed, with some difficulty, to get to the top of the ladder, but in descending, his foot slipped and became dislodged and he fell.  Although he lost no time off work at that time, since that time he has suffered from lower back pain with occasional periods of intense discomfort requiring complete rest.

1. Shortly after the accident, he filled in part of a document headed "Incident Investigation".  The document was in duplicate, the entries on the top copy being replicated on the second copy by means of a carbon sheet.  Relevantly the top copy had a section marked "Description" headed "Describe clearly how the accident occurred:  sketch on back of white copy (refer to part 1 overleaf)".  In this section, the respondent had written "Fell off ladder which accessed hand mined bench/stope.  Landed on right side and back".  It was signed by the respondent and in a section headed "Witness" the name "Tim Hunter" was printed.  A space for signature by the witness was left blank.  The section headed "Description of Injuries" was answered with the words "Muscle soreness ® side", and "treatment given" was answered "Nil  Report only".  The last line of the description section contained a space for the name of "Investigating Person", "Department" and "Authorised by".  The back of the top copy had space for a sketch of the incident or prevention and a review by resources control officer to general manager.  The second or yellow copy had further writing on it, the name of the investigating person in the description section being nominated as Tim Hunter; department, geology; and it was authorised by C R Mudzek.  The next section of the form was headed "Analysis" and printed on this section was the question, "What are the immediate acts, failures to act and/or conditions contributed most directly to this incident [sic].  Refer to Part 2 overleaf".  Overleaf there were multiple choices for unsafe actions and unsafe conditions.  Among the former was "(k) took unsafe position/posture".  Under "unsafe conditions", the choice for (k) was "atmospheric condition".  Someone other than the respondent had filled in this section, "(k) Still becoming familiar with working underground with restricted lighting".  The second part of the analysis section posed the question, "What are the basic reasons for the existence of these acts and/or conditions", but this was not answered.  The third section of the form was marked "Prevention" and reference was invited to Part 4 on the back of the form.  The preventive measures mentioned overleaf included "(q) Re-instruction of employees involved".  Someone other than the respondent had filled in this part "(q) Re-instruction of employee involved" and a column headed "Action by whom" filled in "T Hunter".  At the conclusion of the "Prevention" section of the form, the respondent signed his name under the printed words "Initiator's Agreement".  The last line of the form indicated that the matter had been investigated by Mr Hunter on 11 March 1998.  That was counter-signed by a superintendent and the general manager.

1. Both before me and before the Master, criticism was made of the respondent's description of the incident in this form.  Specifically it was suggested that the appellants had been misled by his failure to attribute lack of lighting, instructions and appropriate footwear, and the greasy and unstable condition of the ladder, as causes of the accident.  Indeed, it was submitted to the Master that the respondent should be disbelieved on the basis that his claims were recent invention.  The Master, who had the advantage of observing the respondent while under cross-examination (albeit by video transmission from Perth, Western Australia), was not prepared to disbelieve him and I see no reason for doing so, or for the criticism levelled against him.  He was not asked to nominate causes and his description of how the incident occurred, while brief, was nonetheless accurate.  On the face of it, the task of determining causes and preventive measures was left to the investigating officer, Mr Hunter, whose appointment was authorised by Mr Mudzek.  The selection of those causes and measures was not made by the respondent and his signature under the heading "Initiator's Agreement", without more, does not amount to an adoption of the investigator's conclusions or an assertion that there were no other matters relevant to how the accident occurred relevant to the occurrence of the accident.  In fact, during his cross-examination, while conceding that no reference had been made in the document to the fact that the boots he had been supplied with were too large, he maintained that he had made it clear to Mr Hunter that this was a factor.

1. Given the nature of the particulars of negligence upon which the respondent intends to rely, I am satisfied that he has an arguable case.

1. The respondent initially thought that the injuries were not very severe and he sought no treatment, although he was on light duties for a couple of days.  He claimed, however, to continue to suffer significant on-going symptoms.  His home was in Perth and while there on a visit in May 1998, he complained to his father, who is an orthopaedic surgeon.  The latter arranged for x-rays which indicated "L5 pars defects associated with low grade spondylolisthesis", a family history for which existed.  Later, his father arranged for a colleague in the same speciality to examine his son and Mr Peter Woodland did so in November 1998, arranging for an MRI Scan before reporting in December 1998 that the respondent's pre-existing condition of bilateral L5 pars defects with relatively minor spondylolisthesis was rendered symptomatic by the significant fall in March 1998.  Mr Woodland recommended conservative treatment for what he regarded as "on-going significant symptoms".

1. The respondent saw Mr Woodland again in January 2000 after he had experienced a further flare up of lumbar back symptoms.  Although they settled in subsequent weeks, they did not return to normal and he had been unable to return to any significant sporting activities.  Mr Woodland saw him again in June 2000 and found him much improved, although he had had a further flare up shortly prior to that time when unpacking after a return to Perth to take up a new appointment.  Again maintenance of conservative treatment was recommended. 

1. Subsequently, however, the respondent's symptoms worsened and he returned for a review by Mr Woodland in November 2000.  He suggested that the respondent might have to submit to facet joint injections at levels L4-5 and L5/S1, which would give transient relief, but would not be of curative value.  He also suggested as a last resort that the respondent undergo a postero-lateral fusion at level L5-S1, as well as a fusion at the level immediately above. 

1. From April 2000, the respondent was employed by Anaconda Nickel in Perth in an office and desk-bound job, which aggravated his symptoms.  Some time late in 2000, the respondent reported his condition as the result of the accident to his employer, the first named appellant, and its insurer was advised.  An assessor was sent to interview the respondent in February 2001.

1. On 9 February 2001, the respondent first consulted a solicitor, Mr Cruse.  He was a member of a Western Australian firm of solicitors and was not aware of the three year limitation applicable under the Limitation Act 1975 ("the Act"), the equivalent statute in Western Australia containing a limitation period of six years.  Mr Cruse made some enquiries, but left for a pre-arranged overseas holiday on 24 February 2001, returning on 15 March 2001.  On 3 April 2001, he engaged Tasmanian agents to prosecute the respondent's claim, but was promptly advised that the three year limitation period had expired on 9 March 2001 and that the present application would be necessary.  Due to understandable difficulties in determining the identity of the respondent's employer and the occupier of the mine, the present writ and application were not filed in the Court until 26 July 2001.

1. The respondent is not from an under privileged background, nor is he an uneducated man.  His father is, as I have noted, an orthopaedic surgeon and in addition to his qualification as a geologist, the respondent is a fully qualified legal practitioner, having graduated in law at the University of Western Australia in 1991 at the age of 23.  After serving Articles of Clerkship, he was admitted as a practitioner, but left the legal profession in 1994.  He obtained a Bachelor of Science Degree in Geology in 1997 and subsequently a Bachelor of Science with Honours Degree before taking employment with the first named appellant in early 1998.  Although he had had no experience of personal injuries litigation, he was aware that actions for negligence were subject to a limitation period which, like Mr Cruse, he believed to be six years, at least in Western Australia.  He was advised by at least 28 December 1999 that his pre-existing asymptomatic condition had been made symptomatic by the accident.  In these circumstances it is difficult to understand why he should have omitted to take any steps to seek legal advice, let alone to initiate any action, for almost three years when he was continually suffering fluctuating but nonetheless painful symptoms.  Notwithstanding Mr Woodland's optimism that his condition would be ameliorated by conservative treatment, it must have been obvious to the respondent that the accident had caused him substantial damage, a remedy for which could well be available to him by way of an action against his employer and/or the occupier of the mine.  The only explanation offered was that he was hopeful of substantial improvement in his condition and reluctant to "make a fuss" having regard to the kind of industry in which he was engaged.  I am not persuaded that the delay has been satisfactorily explained.

1. As to prejudice, it is contended by the respondent that the appellants have suffered no specific prejudice.  Before the Master, there was an affidavit from an employee of the first named appellant, which is the holding company of the second named appellant, in which he deposed that the latter company had sold its interest in the mine in September 1998 and at that time had ceased to operate the mine and to employ all of its employees who had worked in the mine and had not since been in any way involved in the operation or management of the mine.  That company had retained no record in respect of the alleged injury to the respondent and the deponent, after enquiry of the current operations manager of the company running the mine, stated that Mr Tim Hunter was no longer employed by it.  However, before me, there was a further affidavit from Mr Cruse deposing that he had discovered the whereabouts of Mr Hunter, namely New South Wales, and had spoken to him by telephone, so it is clear that he is available as a witness, although what is his state of knowledge is not known.  A further affidavit from the operations manager of the current operator of the mine deposed that he had conducted a search of the records kept at the mine and the only record he had been able to find was the incident investigation report earlier adverted to.  He deposed that it was unlikely that any further record of the incident was made or kept.  He said that at all times, including March 1998, records were kept of the induction training of personnel at the commencement of their employment at the mine and that, the respondent being an employee of the first named appellant, it is likely that any records kept in respect of him and his induction training would have been sent out of Tasmania to the place at which he was next employed within that group of companies at or about the conclusion of his period of employment at the time.  He said further that in February and March 1998, store issue records were kept with respect to the issue of items such as safety boots to personnel.  He claimed that it was likely that a record would have been kept identifying the size of the boots issued to the respondent, but that it is likely that this record would have been kept for approximately one year only.

1. In my view, the evidence adduced by the appellants and the circumstances of the case make it likely that in answering the respondent's claims concerning the condition encountered by him at the site of his accident, of the equipment issued to him and of the instructions issued to him by way of warning against likely hazards he might encounter, the appellants will be at a disadvantage over and above that normally attendant upon a delay of nearly 3½ years from the accrual of the respondent's cause of action.  In the course of cross-examination, the respondent mentioned that in addition to Mr Hunter being present at the scene of his fall, there were two other men known only as Cheeseman and Warn.  He was not aware of their present whereabouts and said he believed they were no longer working at Renison.  They were not mentioned in the Incident Investigation Report.  The identity of the instructor who conducted the induction course attended by the respondent is not known and the records relevant to it are not in the possession of either appellant.  Mr Paul Benson, who signed the report under the title of general manager, left the second named appellant's employ at about the time the mine was sold in September 1998 and left the State.

1. Although there is considerable material available in the form of x-rays and scans in respect of the respondent's medical condition, the appellants contend that they will be prejudiced in investigating and defending the claim that his present condition is due to the accident at the mine.  It is clear that his problems arise from the aggravation of a pre-existing condition; but whether that aggravation is due only to his fall, or was caused or contributed to by his very active life-style or otherwise, may well be difficult to disentangle.  In the circumstances, the appellants could well be disadvantaged by the passage of time in discharging the evidentiary burden of disentangling the respondent's disabilities and tracing one or more of them to other causes (see Watts v Rake (1960) 108 CLR 158). Although the respondent is only out of time by a comparatively small period of time (approximately 4½ months), the question of prejudice must be considered in the context of the time which has elapsed since the cause of action accrued and is not confined to prejudice occasioned since the expiration of the primary period of limitation (Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 548 - 549 per Toohey and Gummow JJ and 555 per McHugh J).

1. In all the circumstances, I am not satisfied that it is just and reasonable to extend the time for commencing proceedings against the appellants.  The appeal is allowed and the respondent's application is dismissed.