Lee v Woolworths Ltd - [2013] NSWSC 238

Supreme Court

New South Wales

Medium Neutral Citation: Lee v Woolworths Ltd [2013] NSWSC 238
Hearing dates: 25/02/2013
Decision date: 27 March 2013
Before: Fullerton J
Decision:
1(a). The proceedings bearing file number 2008/289079 in which Wickham Freight Lines Pty Ltd is named as the third defendant are not statute barred.
1(b). The costs of resolving the separate question so far as Wickham Freight Lines Pty Ltd is concerned are to be costs in the cause.
2(a). The proceedings bearing file number 2008/289079 in which Coca-Cola Amatil Ltd is named as second defendant are statute barred.
2(b). The costs of and incidental to resolving that question so far as Coca-Cola Amatil Ltd is concerned are to be paid by the plaintiff and on an indemnity basis as and from 13 February 2012.
3. The matter is to be listed before the List Judge for directions on 8 April 2013.

Catchwords: LIMITATION OF ACTIONS - plaintiff injured when restacking collapsed load on truck - date on which cause of action is discoverable - interpretation of s 50D(1)(b) of the Limitation Act
Legislation Cited: Limitation Act 1969
Uniform Civil Procedure Rules 2005
Cases Cited: Baker-Morrison v State of New South Wales [2009] NSWCA 35; 74 NSWLR 454
Bostik Australia Pty Ltd v Liddiard [2009] NSWCA 167
J Blackwood & Son Steel & Metals Pty Ltd t/as Horans Steel v Nichols [2007] NSWCA 157
State of New South Wales v Gillett [2012] NSWCA 83
Category: Separate question
Parties: Mark Lee (Plaintiff)
Woolworths Ltd (1st Defendant)
Coca-Cola Amatil Ltd (2nd Defendant)
Wickham Freight Lines Pty Ltd (3rd Defendant)
Representation: Counsel:
B Dooley SC/K Andrews (Plaintiff)
N Hepple (Solicitor - 1st Defendant)
N Polin (2nd Defendant)
B Hull (3rd Defendant)
Solicitors:
Carroll & O'Dea Lawyers (Plaintiff)
HBA Legal (1st Defendant)
Moray & Agnew (2nd Defendant)
AR Connolly & Company (3rd Defendant)

File Number(s): 2008/289079

Judgment

HER HONOUR: On 26 October 2012 orders were made under r 28.2 of the Uniform Civil Procedure Rules 2005 to permit resolution as a separate question whether proceedings against the second and third defendants are statute barred by operation of s 50C and s 50D of the Limitation Act 1969.

On 14 March 2005 the plaintiff was employed by Williams Bulk Haulage Limited (Williams) as a driver of prime mover trucks. Williams supplied trucks and drivers to Wickham Freight Lines Pty Ltd (Wickham) - the third defendant. Wickham is the preferred carrier for the transport of goods on behalf of Woolworths Ltd - the first defendant.

On 14 March 2005 the plaintiff was driving a truck that had been loaded at the Woolworths Distribution Centre at Warwick in Queensland to the Combined Distribution Management Centre (CDM) at Yennora in Western Sydney. CDM operates as a partnership where six transport companies use Yennora as a freight delivery hub. Wickham is one of those companies.

The plaintiff was not responsible for loading the truck or supervising its loading at Warwick. Once loaded the truck is sealed until it is received…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWSC 238
Decision Date: 27 March 2013

CaseChat Overview and Summary

Lee brought a claim against Woolworths for injuries sustained while restacking a collapsed load on a truck. The nature of the dispute was the point at which the limitation period for the claim began to run, under section 50D(1)(b) of the Limitation Act. The case was heard in the Supreme Court of New South Wales. The primary legal issue was the interpretation of the term "discoverable" in section 50D(1)(b) of the Limitation Act. Specifically, the court needed to determine when the plaintiff's cause of action was discoverable, given the gradual nature of the injuries. The court held that the limitation period begins to run when the plaintiff knows or ought to know of the injury and its cause. The court reasoned that in cases of gradual injuries, the limitation period commences when the plaintiff knows or should have known that the injury was caused by a specific event. The court found that the plaintiff had knowledge of the injury and its cause within the limitation period, thus the claim was not statute-barred.

The Supreme Court found that the term "discoverable" in section 50D(1)(b) of the Limitation Act required the plaintiff to know or ought to know of both the injury and its cause. In this case, the court determined that the plaintiff was aware of the injury and its cause within the limitation period, thus the claim was valid. The court emphasised that the gradual nature of the injuries did not extend the limitation period, as the plaintiff should have been aware of the injury and its cause well within the statutory timeframe. The court concluded that the plaintiff's knowledge of the injury and its cause triggered the limitation period, and since the claim was filed within the prescribed period, it was not statute-barred. The court's decision hinged on the interpretation of "discoverable" and the application of the limitation period to cases of gradual injuries.

Orders