McGowan v Hills Limited (Ruling No 2)
[2016] VSC 331
•16 June 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT WANGARATTA
COMMON LAW DIVISION
CIVIL CIRCUIT LIST
S CI 2014 05411
| STEPHEN McGOWAN | Plaintiff |
| v | |
| HILLS LIMITED | First Defendant |
| ACCESS TELEVISION SERVICES PTY LTD | Second Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 May 2016 |
DATE OF RULING: | 16 June 2016 |
CASE MAY BE CITED AS: | McGowan v Hills Limited and anor (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 331 |
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LIMITATION OF ACTIONS – Torts – Extension of time – Limitation of Actions Act 1974 (Qld) ss 30 and 31 – Choice of Law (Limitation Periods) Act 1993 s 6 – Negligent manufacture claim – Whether ladder being manufactured in Queensland a ‘material fact of a decisive character relating to the right of action’ – Extension refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Bailey | Slater and Gordon Lawyers |
| For the First Defendant | Mr J Simpson | Clayton Utz |
| For the Second Defendant | No appearance | Lander & Rogers Lawyers |
HER HONOUR:
Introduction
The plaintiff alleges that he was injured after falling from a ladder while he was at work. The first defendant is the manufacturer of the ladder. The second defendant is a company that engaged the plaintiff to perform the alleged work. The second defendant is a wholly owned subsidiary of the first defendant. This ruling concerns the claims against the first defendant.
At issue is whether or not the plaintiff can continue this proceeding against the first defendant given that it has been issued out of time. By summons filed 18 December 2015, the plaintiff seeks orders for the period of limitation to be extended pursuant to s 6 of the Choice of Law (Limitation Periods) Act 1993 and s 31 of the Limitation of Actions Act 1974 (Qld) to 7 October 2014 (‘the summons’). The issue for determination in this ruling is whether the Court should extend time to enable the plaintiff to continue the proceeding against the first defendant.
The second defendant did not appear at the hearing of the summons.
Summary
For the reasons below, the Court will make orders dismissing the plaintiff’s summons.
Background
On or about 3 March 2007, the first defendant manufactured or assembled the ladder.[1] The plaintiff alleges that on 17 January 2008 he fell from the ladder and was injured. On 20 February 2008, the plaintiff lodged a workers’ compensation claim.[2] On 7 October 2014, the plaintiff filed the writ in this proceeding. On 24 July 2015, the first defendant filed a defence and counterclaim. It asserted that the applicable substantive law, in relation to the claim for damages against it, is the common law of New South Wales or alternatively the common law of Queensland, and that the plaintiff’s cause of action was statute barred by force of the applicable limitation statutes in those States.[3]
[1]Exhibit ‘AT-9’ to the affidavit of Ashley Tsacalos, the plaintiff’s solicitor, sworn 8 March 2016, and paragraphs 16 and 18 of that affidavit.
[2]Affidavit of the plaintiff sworn 9 November 2015, paragraph 13.
[3]Paragraphs 17 and 18 of the first defendant’s defence and counterclaim filed 24 July 2015.
In a ruling given on 27 November 2015 (‘the first ruling’), T Forrest J held that ‘the nub of the plaintiff’s case is that Hills [the first defendant] manufactured a defective product, and that the plaintiff was injured as a consequence of those defects’.[4] During the course of the hearing, it was agreed between the parties that the manufacture and assembly of the ladder took place in Queensland.[5] His Honour had noted that the issue was a significant one because if ‘the substantive law governing the claim is the common law of Australia referrable to Queensland (including limitation statutes) then the plaintiff’s claim against Hills is prima facie statute barred. If, on the other hand, the common law of Australia referrable to Victoria is to be the substantive law governing the claim against Hills… then it is agreed by the parties that the plaintiff has issued within time and no limitations claim arises’.[6] His Honour considered ‘the common law of Australia referable to Queensland (including limitation statutes) to be the substantive law that governs the plaintiff’s claim against the first defendant’.[7] Following the ruling, the plaintiff issued the summons.
[4]McGowan v Hills Ltd [2015] VSC 674, [18].
[5]Ibid [3(13)].
[6]Ibid [2].
[7]Ibid [19].
Submissions
The plaintiff and first defendant both made written and oral submissions. They are in agreement as to the following:
(a) the limitation period for the relevant cause of action against the first defendant expired on 17 January 2011;
(b) the relevant extension provision is s 31 of the Limitation of Actions Act 1974 (Qld) (‘the QLAA’);
(c) the threshold issues in s 31(1) and s 31(2)(b) are satisfied. That is, the cause of action against the first defendant falls within the gamut of s 31(1) of the QLAA. Further, there is evidence to establish the right of action in question (limitation questions aside), which is required by s 31(2)(b); and
(d) applying State of Queensland v Stephenson (‘Stephenson’),[8] the ‘relevant date’ can be no later than 7 October 2013 and the expiry date no later than 7 October 2014.
[8](2006) 226 CLR 197.
The plaintiff made the following submissions:
(a) the relevant cause of action is the subject negligence cause of action within the laws of Queensland;
(b) the material fact of a decisive character relating to the right of action in this proceeding is that the plaintiff knew that the ladder was designed, made and/or constructed in Queensland, such that he had a cause of action in the State of Queensland. During oral argument, this was refined further as being that the plaintiff knew the ladder was manufactured in Queensland;
(c) the question then is when did the plaintiff learn that the ladder was manufactured in Queensland (and not in Victoria)? The plaintiff says not until July 2015. This is a date after the expiry date of 7 October 2014;
(d) in relation to prejudice that the first defendant may suffer if the limitation period is extended, the plaintiff says the ladder is still in existence as it was at the date of its collapse and the first defendant could inspect it and obtain its own evidence about the manufacture of the ladder. Further, even though the first defendant has now sold the business, the first defendant could always subpoena documents and if they do not exist, the plaintiff will not be able to rely upon them. The case against the defendant would then be limited to defective manufacture rather than defective design and manufacture. The plaintiff must prove the defendant manufactured a defective product, and this will be proven by experts considering the ladder and nothing else;
(e) the plaintiff believed the tortfeasor was Hills Victoria before the limitation period expired. He did not know that the tortfeasor was Hills Queensland until July 2015; and
(f) the plaintiff does not recall precisely when he found out that the ladder was made in Queensland and not Victoria. He believes it was around July 2015 by way of his solicitors telling him about what was contained in the first defendant’s defence dated 22 July 2015.
The defendant made the following submissions:
(a) a Victorian court exercising a discretion conferred by a limitation law of another State must exercise that discretion, as far as practicable, in the manner in which it is exercised by the courts of that State: Choice of Law (Limitation Periods) Act 1993 s 6;
(b) the ‘material facts’ came into the plaintiff’s knowledge either prior to 7 October 2013 or after the date the proceedings were instituted;
(c) the plaintiff does not identify any factual circumstance which satisfies the requirements of s 31 of the QLAA. His affidavits do not provide sufficient detail to make a finding of fact or refer to events after proceedings were issued, which is contrary to the principles in Stephenson;
(d) there is no presumptive right to an order once the conditions in s 31(2)(a) and (b) have been satisfied. The Court ‘may’ make the order. It is vested with a discretion as to whether it makes the order. The discretion should not be exercised in the plaintiff’s favour given the fact or real possibility of significant prejudice to the first defendant;
(e) there is prejudice to the first defendant by the effluxion of time: the proceedings were issued some six years and nine months after the accident. It will be difficult for the first defendant to determine what damage occurred, or defect existed, as at the date of the accident in January 2008;
(f) there is prejudice to the first defendant because it has not been provided with reasonable access to the ladder in order for it to carry out its own forensic inquiries, which may well be critical to the outcome of the case; and
(g) there is prejudice to the first defendant because the business changed hands in June 2013 and it is likely to encounter significant difficulties in defending the action given the effluxion of time and lack of immediate access to records, manufacturing plant and witnesses. It is extremely unlikely it will be in a position, in the circumstances, to mount an adequate defence and obtain a fair trial.
The legislation and authorities referred to in the submissions made by each party are discussed below.
Applicable principles
Victorian law provides that the limitation laws of another jurisdiction apply to a claim if the substantive law of that jurisdiction is to govern that claim. Section 5 of the Choice of Law (Limitation Periods) Act 1993 (‘the Choice of Law Act’) is as follows:
5 Characterisation of limitation laws
If the substantive law of another place being another State, a Territory or New Zealand, is to govern a claim before a court of this State, a limitation law of that place is to be regarded as part of that substantive law and applied accordingly by the court.
‘Limitation law’ is defined in s 3 of the Choice of Law Act:
3 Definitions
In this Act –
court includes arbitrator;
limitation law means a law that provides for the limitation of any liability or the barring of a right of action in respect of a claim by reference to the time when a proceeding on, or the arbitration of, the claim is commenced.
The Choice of Law Act provides in s 6 that a Victorian court exercising a discretion conferred by the limitation law of another jurisdiction should exercise that discretion in the manner in which it is exercised in comparable cases by the courts of that other jurisdiction:
6 Exercise of discretion under limitation law
If a court of the State exercises a discretion conferred under a limitation law of a place being another State, a Territory or New Zealand that discretion, as far as practicable, is to be exercised in the manner in which it is exercised in comparable cases by the courts of that place.
The QLAA provides that actions for damages for negligence which include damages in respect of personal injury shall not be brought after the expiration of three years from the date on which the cause of action arose.[9]
[9]Section 11(1) of the QLAA.
Section 31 of the QLAA permits a court to order that the period of limitation for particular actions be extended in certain circumstances:
31 Ordinary actions
(1)This section applies to actions for damages for negligence, trespass, nuisance or breach of duty (whether the duty exists by virtue of a contract or a provision made by or under a statute or independently of a contract or such provision) where the damages claimed by the plaintiff for the negligence, trespass, nuisance or breach of duty consist of or include damages in respect of personal injury to any person or damages in respect of injury resulting from the death of any person.
(2)Where on application to a court by a person claiming to have a right of action to which this section applies, it appears to the court –
(a)that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
(b)that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;
the court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date and thereupon, for the purposes of the action brought by the applicant in that court, the period of limitation is extended accordingly.
(3)This section applies to an action whether or not the period of limitation for the action has expired –
(a)before the commencement of this Act; or
(b)before an application is made under this section in respect of the right of action.
Section 30 of the QLAA stipulates how various terms in s 31 are to be interpreted:
30 Interpretation
(1) For the purposes of this section and sections 31, 32, 33 and 34 –
(a)the material facts relating to a right of action include the following-
(i)the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
(ii)the identity of the person against whom the right of action lies;
(iii)the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
(iv)the nature and extent of the personal injury so caused;
(v)the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;
(b)material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing –
(i)that an action on the right of action would (apart from the effect of the expiration of a period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and
(ii)that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action;
(c)a fact is not within the means of knowledge of a person at a particular time if, but only if –
(i)the person does not know the fact at that time; and
(ii)as far as the fact is able to be found out by the person – the person has taken all reasonable steps to find out the fact before that time.
(2)In this section –
appropriate advice, in relation to facts, means the advice of competent persons qualified in their respective fields to advise on the medical, legal and other aspects of the facts.
The leading authority on s 31 is the High Court decision of Stephenson. The majority held that in construing s 31(2), reference should be made to ‘the two temporal points fixed in s 31(2) as the ‘expiry date’ and the ‘relevant date’.[10] In this proceeding, as discussed above, the parties are, sensibly, agreed as to these dates.
[10](2006) 226 CLR 197, 204 [17].
Stephenson is also authority for the following principles which are relevant to this application.
(a) The question is ‘when all material facts of a decisive character relating to the right of action came within [the applicant’s] means of knowledge’ rather than when all material facts came within the applicant’s means of knowledge.[11]
[11]Ibid 205 [19] citing Davies JA in Stephenson v State of Queensland [2004] QCA 483, [12]-[13] [emphasis added].
(b) Not all material facts are ‘of a decisive character’. The material fact:
…must answer the description in para (a) of s 31(2) “a material fact of a decisive character relating to the right of action”. It is a fact of this particular quality which, until the relevant date, must not have been within the means of knowledge of the applicant. What must not have been within the means of knowledge of the applicant until the relevant date is not merely a material fact relating to the right of action in question. The material fact must be “of a decisive character”. The provision is so drawn as to assume that there may be material facts which are not of a decisive character.[12]
[12](2006) 226 CLR 197, 206 [21].
(c) The question for the court is whether the test in s 30(1)(b) is satisfied at a particular point in time:
Whether the decisive character is achieved by the applicant becoming aware of some new material fact, or whether the circumstances develop such that facts already known acquire a decisive character, is immaterial… in a sense none of the material facts relating to the applicant’s right of action is of a decisive character until a reasonable person “knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing” the features described in sub-pars (i) and (ii) of s 30(1)(b). Whether that test has been satisfied at a particular point in time is a question for the court.[13]
[13]Ibid 208 [29].
(d) Section 30(1) has objectively ascertainable criteria which look to the response of an actor, a reasonable person, to the existence of those criteria:
The objectively ascertainable criteria include those facts and circumstances included by para (a) of s 30(1) in the expression “the material facts relating to a right of action”. Paragraph (a) states that the material facts relating to the right of action “include” certain matters…
The ascription to material facts of the character of “decisive” looks to the response of an actor. It is here that the exegesis supplied by par (b) of s 30(1) comes into play. The court is to consider the response of a “reasonable person” in the manner explained in that paragraph. The particular claimant is to enjoy the advantage conferred by the provision in s 30(1) for the making of an extension order only by satisfaction of criteria which look to the response of a reasonable person. In this way, s 30(1) assists and controls an understanding of the compound conception in s 31(2).[14]
[14]Ibid 207 [24]–[25].
Authorities from the Supreme Court of Queensland provide assistance with the interpretation of ss 30 and 31:
In determining whether a newly learned fact has the necessary quality of decisiveness an applicant “must show that without the newly learned fact or facts he would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interests pursue it”.[15]
[15]Dent v Langs Building Supplies Pty Ltd (‘Dent’) [2015] QSC 368 [46] citing Moriarty v Sunbeam Corporation Ltd [1988] 2 Qd R 325, 333 (Macrossan J).
(a) A relevant question is whether there was a ‘critical mass of information’ within the applicant’s knowledge prior to the relevant date which justified bringing the action.[16]
[16]Dent [2015] QSC 368 [50] citing Castillon v P & O Ports Limited [2008] 2 Qd R 219, [34], [41] (Keane JA).
(b) Material facts which merely go to the enlargement of what is already a worthwhile cause of action are not of a decisive character within the meaning of s 30(1)(b) of the QLAA.[17]
[17]Dent [2015] QSC 368 [50].
Whether an action for damages is worthwhile is an assessment which must be made having regard to the expense and risks of litigation.[18]
…
The body of evidence which a plaintiff collects, or …. his assemblage of “material facts”, will only constitute a “decisive” collection when an appropriately advised reasonable man in his position is possessed or would, if he had enquired in appropriate fashion, be possessed of what he would regard as reasonable and worthwhile litigation prospects. The policy detectable in this legislation does not suggest that a potential plaintiff with the limitation period running against him must necessarily always commence his proceedings when he has no more than a hint of the existence of a necessary link in his chain of proof but, of course, if being at that point he delays he will do so at his peril because he will only subsequently save himself if he can persuade a judge that he did not know enough or would not, even if he had undertaken appropriate enquiries, have known enough to justify commencing proceedings at an earlier time.[19]
…
There is no requirement to take “appropriate advice” or to ask appropriate questions if in all the circumstances it would not be reasonable to expect the plaintiff to do so.[20]
[18]Greenhalgh v Bacas Training Limited [2007] QCA 327, [22] (Keane JA, with whom Cullinane and Lyons JJ agreed).
[19]Wood v Glaxo Australia Pty Ltd [1994] 2 Qd R 431, 437 (Macrossan CJ), cited in Greenhalgh v Bacas Training Limited [2007] QCA 327 [21] and Green v Taylor [2010] QDC 298 [94].
[20]Healy v Femdale Pty Ltd [1993] QCA 210 [5], cited in Greenv Taylor [2010] QDC 298 [117].
There is no presumptive right to an order under s 31 of the QLAA once the plaintiff satisfies the two conditions in s 31(2) of that Act:
An applicant for an extension of time who satisfied those conditions is entitled to ask the court to exercise its discretion in his or her favour. But the applicant still bears the onus of showing that the justice of the case requires the exercise in his or her favour.
The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates”. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists…The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.[21]
…
In determining what the justice of the case requires, the judge is entitled to look at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period.[22]
[21]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 551 (McHugh J). (Citation omitted.)
[22]Ibid 554 (McHugh J).
The prejudice to a defendant is a relevant factor in the exercise of the Court’s discretion as to whether or not to extend time under s 31 of the QLAA:
When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice. The defendant has then proved what the legislature merely presumed would be the case. Even on the hypothesis of presumptive prejudice, the legislature perceives that society is best served by barring the plaintiff’s action. When actual prejudice of a significant kind is shown, it is hard to conclude that the legislature intended that the extension provision should trump the limitation period. The general rule that actions must be commenced within the limitation period should therefore prevail once the defendant has proved the fact or real possibility of significant prejudice. In such a situation, actual injustice to one party must occur. It seems more in accord with the legislative policy underlying limitation periods that the plaintiff’s lost right should not be revived than that the defendant should have a spent liability reimposed upon it. This is so irrespective of whether the limitation period extinguishes or merely bars the cause of action.[23]
[23]Ibid 555 (McHugh J).
The first defendant referred to another High Court decision, John Pfeiffer Pty Limited v Rogerson (‘Pfeiffer v Rogerson’), in support of its proposition that a ‘material fact’ does not include the place where a negligent act occurs because the applicable law is the common law of Australia.[24] This proposition is not accepted. Pfeiffer v Rogerson is authority for the proposition that the law applicable to questions of substance in Australian torts with an interstate element is the lex loci delicti, that is, the place of the wrongful act.[25] Further, it is authority for the proposition that the application of any limitation period is also governed by the lex loci delicti.[26]
[24](2000) 203 CLR 503, 514–515 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[25]Ibid 540 [87] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[26]Ibid 544 [100] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
Consideration
Material Fact
The place in which the ladder was manufactured is a ‘material fact’ relating to the right of action. It is the place where the alleged wrongful act of defective manufacture occurred. In the circumstances of this case, in the first ruling it was held that, as a consequence, the applicable law is the common law of Australia referrable to Queensland.[27] The first defendant’s submission that because the applicable law is the common law of Australia, the place of manufacture is irrelevant, is therefore not accepted. Had the ladder been manufactured outside Australia, for instance, the plaintiff may not have had a claim for defective manufacture under the common law of Australia.
[27][2015] VSC 674 [18].
For completeness, it is observed that location or jurisdiction is not a factor listed in the definition of ‘material facts’ in s 30(1)(a) of the QLAA. However, it is not an exclusive provision.
Of a decisive character
In paragraphs 18-20 of his affidavit sworn on 9 November 2015, the plaintiff deposed:
I first received legal advice in relation to my WorkCover statutory no-fault benefits. This was after I received a letter from the WorkCover claims agent terminating my weekly payments after 130 weeks in about mid-2010. At that time I was essentially worried about my weekly payments. The solicitor dealt with the dispute regarding weekly payments by issuing WorkCover proceedings.
In about May 2011 my dispute regarding weekly payments was settled on the basis that I received payment of my arrears for the period 3rd July 2010 to 9th May 2011.
Over the course of my dispute regarding weekly payments I advised the solicitor regarding the fault which had been detected in the ladder. I was advised by the solicitor that he would look in to where the ladder was manufactured as the maker of the ladder may be able to be sued for damages. Sometime after that I was informed by the solicitor that the ladder had been made in Dandenong, Victoria. Eventually the solicitor wrote to me and advised the ladder had been manufactured in Queensland and that I may be able to sue for damages in that State.[28]
[28]Emphasis added.
Accordingly during the period mid-2010 to mid-2011 (the period of the dispute regarding weekly payments), the plaintiff informed his solicitor of the fault in the ladder, and his solicitor informed him he would look into where the ladder was manufactured as he may be able to sue for damages. The plaintiff deposed that the solicitor then advised him that the ladder was made in Dandenong. This is surprising as the first defendant never manufactured ladders in Dandenong.[29] The plaintiff also deposed that the solicitor subsequently wrote to him and advised that the ladder was manufactured in Queensland and that he may be able to sue for damages. The lack of temporal specificity is also surprising given there was a letter, presumably dated, from the solicitor. The plaintiff’s counsel submitted that this was clarified by a later affidavit. That is, in paragraph 4 of his affidavit sworn on 9 March 2016, the plaintiff deposed:
I don’t now recall precisely when I found out that the ladder was actually made in Queensland and not in Victoria but I believe it to have been around July 2015 by way of my solicitors telling me about what was contained in the First Defendant’s defence dated 22 July 2015.[30]
[29]Affidavit of Mr David Fox, the first defendant’s general counsel, affirmed on 20 April 2016, [5]-[6].
[30]Emphasis added.
Again, there is a lack of temporal specificity that is surprising if indeed this second affidavit is an attempt to clarify the first affidavit. There is no specific date; only ‘around July 2015’. There is also no reference at all to the date of the letter of advice. It does not appear that the second affidavit was a clarification of the first affidavit, but rather prepared in support of the application made under the QLAA.
The plaintiff’s evidence in his first affidavit regarding the date on which he was informed that the ladder was manufactured in Queensland and that he may be able to sue for damages does not establish that it was not until after 7 October 2013 that he became aware of that fact. It was ‘sometime after’ his solicitor informed him during the mid-2010 to mid-2011 period. It is a long bow to draw to accept that means four years later, in July 2015. The failure to refer to the date of correspondence is unhelpful.
The fact that the ladder was manufactured in Queensland was not of a decisive character in terms of whether or not to sue for damages. Ignorance of that fact did not preclude the plaintiff from bringing proceedings. Indeed, the amended statement of claim does not refer to the place of manufacture. However, even if it was of a decisive character, then a simple enquiry would have determined that the ladder was manufactured in Queensland. The first defendant did not manufacture ladders anywhere else in Australia except Queensland.[31] Given the plaintiff’s evidence as to his solicitor’s advice, referred to above, in mid-2010 to mid-2011, the plaintiff’s submission that he had no reason to make enquiries because he had purchased the ladder in Victoria is rejected. There is no explanation as to why the proceedings were commenced without knowledge of the place of manufacture of the ladder. It is reasonable to infer that the plaintiff commenced the proceedings because he appreciated that he had a worthwhile action to pursue. He believed the ladder was manufactured defectively, and believed that his injury was caused or caused in part by it, and believed his injury to be serious. These facts are enough to lead a reasonable man, appropriately advised to bring an action in negligence. The plaintiff did not submit that a reasonable man, appropriately advised, would wait until he knew the exact location of the ladder’s manufacture before bringing proceedings.
[31]Affidavit of David Fox affirmed 12 November 2015, [7].
By mid-2010 to mid-2011 the plaintiff had been advised by his solicitor that the ladder was faulty and that he could sue for damages. That constituted appropriate advice. The fact that the ladder was manufactured in Queensland is a material fact but it is not a material fact of a decisive character. This finding in itself is fatal to the plaintiff’s application to extend time. In the event this finding is incorrect, for the reasons below, the Court would not exercise its discretion to extend time.
Prejudice
It is significant that the proceedings were issued more than 6 years after the plaintiff allegedly fell from the ladder and more than 7 years after its manufacture.
There is a significant risk that the first defendant will not be able to fairly defend itself at trial. It sold the business which manufactured the ladder in June 2013.[32] It does not know whether records regarding the manufacture of the ladder are still in existence.[33] They were transferred to the new owner after completion of the sale, and the first defendant retains very few pieces of archived material in relation to its previous ladder business.[34] There was no evidence that the first defendant had made enquiries regarding those records, or whether the sale of business agreement provided that they be kept for a specified period. The first defendant’s corporate counsel has deposed that it would cost significant time, resources and money to attempt to obtain any information from the new owner of the ladder business.[35] Even if they are in existence, there is still the potential issue of witnesses. The effluxion of time in circumstances where there has been a sale of business will make it difficult to locate witnesses. The employees of the first defendant who worked in the ladder business ceased to be the first defendant’s employees after the sale of business.[36]
[32]Affidavit of David Fox affirmed 7 March 2016, [5]-[6].
[33]Ibid [10].
[34]Ibid [8].
[35]Ibid [10].
[36]Ibid [7].
Given the above, there will be significant risk of prejudice to the first defendant if the application were to be granted.
The plaintiff’s suggestion that it could limit its claim to defective manufacture and exclude the allegation of defective design, if the first defendant cannot obtain drawings or manufacture records, does not overcome the risk of prejudice to the defendant. Nor does the plaintiff’s suggestion that the ladder is still in existence and evidence of defective manufacture will be proven ‘by experts considering the actual ladder and nothing else’.[37] This seems to the Court to be overly simplistic. One question which would arise is whether, if there are any defects in the ladder, they were part of the manufacturing process, or occurred subsequently. The current condition of the ladder, now more than 9 years old, is unknown.[38] The plaintiff says the ladder is available for inspection. Whilst not determinative of this application, there is a history of the plaintiff failing to provide inspection of the ladder despite the first defendant’s repeated requests.[39]
[37]Plaintiff’s written submissions, [28].
[38]Affidavit of Ashley Tsacalos sworn 8 March 2016, [23].
[39]Ibid [7]–[16].
Conclusion
The Court will make orders dismissing the plaintiff’s summons. It will hear the parties on the form of order and costs.
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