McLoughlin v John Holland Pty Ltd
[2018] WADC 75
•1 JUNE 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: MCLOUGHLIN -v- JOHN HOLLAND PTY LTD [2018] WADC 75
CORAM: JUDGE GOETZE
HEARD: 21 MAY 2018
DELIVERED : 1 JUNE 2018
FILE NO/S: CIV 838 of 2016
BETWEEN: JENNA MCLOUGHLIN
Plaintiff
AND
JOHN HOLLAND PTY LTD
First Defendant
JOONDALUP HOSPITAL PTY LTD
Second Defendant
CENTIGRADE MECHANICAL CONTRACTING PTY LTD
Third Defendant
FILE NO/S: CIVO 9 of 2018
BETWEEN: JENNA MCLOUGHLIN
Applicant
AND
PHOENIKS PTY LTD
Respondent
Catchwords:
Applications for extension of time within which to commence proceedings for personal injuries arising by accident - Extension where plaintiff/applicant not aware of person to whom injury is attributable - Enquiry not made under s 39(3) of the Limitation Act 2005 (WA)
Legislation:
Limitation Act 2005 (WA)
Result:
Applications dismissed
Representation:
CIV 838 of 2016
Counsel:
| Plaintiff | : | Mr G T Stubbs |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | Mr J R Fielding |
Solicitors:
| Plaintiff | : | WA Legal Pty Ltd |
| First Defendant | : | Not applicable |
| Second Defendant | : | Not applicable |
| Third Defendant | : | Greenland Legal Pty Ltd |
CIVO 9 of 2018
Counsel:
| Applicant | : | Mr G T Stubbs |
| Respondent | : | Ms K R Wood |
Solicitors:
| Applicant | : | WA Legal Pty Ltd |
| Respondent | : | Moray & Agnew Lawyers |
Case(s) referred to in decision(s):
AME Hospitals Pty Ltd v Dixon [2015] WASCA 63
Ghiassi v Industrial People Pty Ltd [2012] WADC 23
JUDGE GOETZE:
By these two applications, leave is sought to extend the time within which proceedings can be commenced against two alleged tortfeasors.
Background and facts
On 11 June 2013, Ms Jenna McLoughlin, the plaintiff in CIV 838 of 2016 and the applicant in CIVO 9 of 2018, was working at Joondalup Health Campus as a chef. As she entered a doorway between the kitchen and the race area, a metal cornice fell from the ceiling and struck her. As a result, she suffered injury.
Ms McLoughlin sought legal representation. On 27 March 2014, her lawyers first wrote to Joondalup Hospital Pty Ltd which operates the Health Campus. Her lawyers were informed that, at the relevant time, the Health Campus was being redeveloped. John Holland Pty Ltd was the project manager of that redevelopment. Accordingly, the Hospital and John Holland were each given notice of an intention to make a claim for compensation in respect of the injury suffered by Ms McLoughlin.
Correspondence subsequently passed between the parties, but progress in resolution of the claim was not only slow, it was also nearly non‑existent.
On 19 May 2015, Ms McLoughlin's lawyer wrote to the in‑house lawyer at John Holland in the following terms:
We are instructed that there were two workers attending to the cornice at around 10.50 am on 11 June 2013. Our client is unsure whether they were your clients, employees or contractors.
…
After the incident some unknown workers riveted the cornice back into place. One witness attests that the cornice was not riveted prior to the incident.
We hope this assists in your investigations. If you have any further questions, please feel free to get in touch.
John Holland never clarified whether the relevant two workers were its employees or contractors. They were never requested to do so.
On 20 October 2015, Ms McLoughlin provided a statement, a copy of which was sent to John Holland. The statement includes:
22.That morning, there were two builders working on the cornice before lunch. They had a ladder and it blocked off the door to the kitchen before service.
23.I presumed they worked for John Holland, as their signs were all over the place but I do not remember seeing any logo's [sic] on their clothing.
On 9 March 2016, Ms McLoughlin's lawyers issued a writ of summons seeking damages from John Holland and the Hospital.
On 10 June 2016, the limitation period in respect of any claim by Ms McLoughlin expired.
On 15 July 2016, John Holland advised Ms McLoughlin's lawyers that it had engaged Centrigrade Mechanical Contracting Pty Ltd to refurbish the kitchen and that any liability rested with Centigrade. For some time thereafter, John Holland proposed to join Centigrade as a third party in CIV 838 of 2016. However, this did not occur. Then, on 6 November 2017, Ms McLoughlin's lawyers applied to join Centigrade as a third defendant. During that hearing of that application, counsel for Centigrade observed that the limitation period had expired. Ms McLoughlin's lawyer indicated that it was not necessary to seek an extension of the limitation period. Centigrade was then made the third defendant in CIV 838 of 2016.
Further, on 20 October 2017, Ms McLoughlin's lawyers were informed of the existence of Phoeniks Pty Ltd as also having some involvement in the matter. As the lawyers have now learned, Phoeniks supplied a GIF Active Cassette Ceiling, part of which includes the metal cornice which fell onto Ms McLoughlin. Phoeniks however, arranged for ACT Stainless Steel and Catering Equipment Pty Ltd to undertake the installation work in respect of the ceiling.
These applications
In CIV 838 of 2016, Ms McLoughlin now seeks leave to extend the time to commence proceedings against Centigrade.
By CIVO 9 of 2018, Ms McLoughlin seeks leave to extend the time to commence proceedings against Phoeniks. There is no such application with respect to ACT Stainless Steel.
The Limitation Act 2005 (WA)
Relevantly, the Limitation Act provides as follows:
39. Court may extend time to commence actions for personal injury or under Fatal Accidents Act 1959
(1)A plaintiff may apply to a court for leave to commence an action for damages relating to a personal injury to a person even though the limitation period provided for under this Act has expired.
(2)…
(3)On an application a court may extend the time in which the action can be commenced if the court is satisfied that, when the limitation period expired, a person to whom the cause of action accrues —
(a)was not aware of the physical cause of the death or injury;
(b)was aware of the physical cause of the death or injury but was not aware that the death or injury was attributable to the conduct of a person; or
(c)was aware of the physical cause of the death or injury and that the death or injury was attributable to the conduct of a person but after reasonable enquiry, had been unable to establish that person’s identity.
(4)On an application a court may extend the time in which the action can be commenced up to 3 years from when a person to whom the cause of action accrues became aware, or ought reasonably to have become aware —
(a)of the physical cause of the death or injury;
(b)that the death or injury was attributable to the conduct of a person (whether a defendant or not); and
(c)of the identity of the person mentioned in paragraph (b).
(5)…
In AME Hospitals Pty Ltd v Dixon [2015] WASCA 63, McLure P said:
18First, 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 of the person to whom the cause of action accrues, 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.
19The applicant for an extension must also establish when the person to whom the cause of action accrued first became aware, or ought reasonably to have become aware, of all the matters in s 39(4) (being the physical cause of the injury, that the injury was attributable to the conduct of a person and the identity of that person).
20In practical terms, the focus of attention in an application under s 39 should be on when the person to whom the cause of action accrues (and guardian if under 18) 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).
In the circumstances of this case, Ms McLoughlin must establish when she first became aware, or ought reasonably to have become aware, that her injury was attributable to the conduct of Centigrade and Phoeniks. Attribution requires only that there be some connection between the injury and the conduct giving rise to Ms McLoughlin's injury, as distinct from causation in the sense usually understood in the law of tort: AME Hospitals [208] – [210] (Buss JA).
Although Ms McLoughlin's written submissions were only directed to s 39(3)(c), the oral submissions extended to s 39(3)(b).
It is clear that, within s 39(3)(b), Ms McLoughlin was aware of her injury on 11 June 2013, which she attributed to John Holland and the Hospital, but she did not become aware that her injury was attributable to the conduct of
(a)Centigrade, until 15 July 2016; and
(b)Phoeniks, until 20 October 2017.
By s 39(3)(c), Ms McLoughlin was aware of her injury once it occurred, which she attributed to John Holland and the Hospital. However, as to Centigrade and Phoeniks, she must show that after reasonable enquiry, she was unable to establish their respective identities before the expiration of the limitation period on 10 June 2016.
It is only after reasonable enquiry has failed to establish the relevant person's identity under s 39(3)(c) that the jurisdiction of the court is enlivened to exercise the discretion to extend time: Ghiassi v Industrial People Pty Ltd [2012] WADC 23 [21].
The issues
The ultimate question in each application is whether leave should be granted to Ms McLoughlin to extend the time to commence proceedings against Centigrade and Phoeniks. However, the real issues are:
(1)whether, as at 10 June 2016, Ms McLoughlin should be excused for not being aware that her injury was attributable to the conduct of Centigrade and Phoeniks; and
(2)whether and when she made reasonable enquiry by 10 June 2016 to ascertain the respective identities of Centigrade and Phoeniks as being persons to whom she says her injury is attributable.
Ms McLoughlin's submissions
The written submissions filed by Ms McLoughlin include the following:
1.Ms McLoughlin was not aware of the identity of the workers who were performing work on the cornice on 11 June 2013. She 'presumed' they were working for John Holland. Signs bearing its logo were clearly visible in the area where those workers were working.
2.Prior to the issue of the writ, the Hospital provided Ms McLoughlin's lawyers with a copy of the project management agreement made by it with John Holland.
3.By email dated 3 November 2015, Ms McLoughlin's solicitors provided information to John Holland regarding:
(a)a detailed description of her accident;
(b)a marked floor plan with the location of the accident;
(c)photographs of the cornice taken shortly after it was replaced; and
(d)her witness statement.
4.It was only on 15 July 2016, after the limitation period had expired, that Ms McLoughlin's lawyers were advised by John Holland that Centigrade was subcontracted by John Holland to perform and complete the kitchen refurbishment.
5.Likewise, on 20 October 2017, after the limitation period had expired, John Holland advised Ms McLoughlin's lawyer of the involvement of Phoeniks.
6.Ms McLoughlin's lack of awareness prior to the expiration of the limitation period was reasonable given that neither John Holland, nor the Hospital, advised of the identity of Centigrade or Phoeniks prior to the expiration of the limitation period.
Resolution of the issues
At first, Ms McLoughlin's lawyers pursued the Hospital in respect of her claim for compensation. The Hospital then provided a copy of the project management agreement with John Holland, by which cl 6.2 provides as follows:
The Project Manager shall engage the Subcontractors identified in the Project Manager's offer …
It is not unusual for project managers to engage subcontractors. This can be reasonably expected.
In her statement recited at [7] above, Ms McLoughlin only 'presumed' that the two builders working on the cornice before her injury
worked for John Holland, as their signs were all over the place … .
Her lawyers were aware of the dubious quality of this presumption as they wrote on 19 May 2015 to John Holland (see [5] above) that their client was
unsure whether [the two workers] were your client's employees or contractors.
Apart from the email dated 19 May 2015, Ms McLoughlin's lawyers made no other enquiry at all of John Holland, or anyone, to establish the identity and status of the two workers when clearly, given the wording of this email, their identity and status was then a live issue and no doubt, had so been earlier than that date, as it had only ever been 'presumed' by Ms McLoughlin that the two workers worked for John Holland.
Ms McLoughlin was, at all times, aware of the physical cause of her injury. Once she presumed or ascertained that her injury was attributable to the conduct of John Holland and the Hospital, then she could proceed to issue a writ of summons against both of those companies, which her lawyers did. However, as her lawyers were unsure of the vicarious liability of John Holland for the two workers, or their identity and status, then her lawyers were duty bound to make further enquiry in that regard. Such enquiries should be a usual procedure for lawyers in these circumstances, with or without the compulsion of s 39(3).
Further, the email dated 19 May 2015 to John Holland's in-house lawyer merely observed that Ms McLoughlin was unsure as to the employment or the contractual status of the two workers. It was not expressed as a question demanding an answer. There was no obligation on John Holland to provide information even if it had been specifically asked to do so, which it was not.
This email certainly cannot be regarded as the fulfilment of a requirement to make reasonable enquiry under s 39(3)(c) to ascertain the identity of any relevant person.
Further, given the email on 19 May 2015 and the fact that the limitation period did not expire until 10 June 2016, it must be said that, in the absence of any further enquiry or action to seek information from John Holland, or any other person, as to both the existence, if any, of a subcontractor and the subcontractor's identity or the identity and status of the two workers, reasonable enquiry was not made during that lengthy period of over one year. Had reasonable enquiry been made and had John Holland unreasonably refused to provide information, then Ms McLoughlin and her lawyers could perhaps have resorted to pre‑trial discovery or some other process by which the existence of a subcontractor and that subcontractor's identity or the two workers' identity and status could have been established within the limitation period. Even if the existence of subcontractors and the identity and status of the two workers were not still ascertained, then whatever steps were taken would now be able to be considered in order to determine whether Ms McLoughlin and her lawyers made reasonable enquiry to establish identity of a relevant person.
The reality here is that Ms McLoughlin has now, only after the expiration of the limitation period, ascertained that Centigrade and Phoeniks may be other persons to whom her injury may be attributable and she now seeks leave to commence proceedings against them. Following McLure P in AME Hospitals:
(a)as at 10 June 2016, when the limitation period expired, Ms McLoughlin did not know that her injury was attributable to the conduct of Centigrade and/or Phoeniks, or their identity; and
(b)she has not established that, by 10 June 2016, she had made reasonable enquiry to establish that her injury was attributable to anyone, including Centigrade and Phoeniks respectively.
In the circumstances, there is no need to consider s 44 of the Limitation Act. However, s 44 would not appear to provide any impediment to leave being granted to commence proceedings because both Centigrade and Phoeniks were apparently aware of Ms McLoughlin's injury on the day she suffered that injury. Further, John Holland and the Hospital have been defending this action and have been provided with relevant information from Ms McLoughlin's lawyers. In this way, they have no doubt acted in their own best interests, which would be likely to coincide with those of Centigrade and Phoeniks.
The application in each of CIV 838 of 2016 and CIVO 9 of 2018 should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JB
ASSOCIATE TO JUDGE GOETZE
1 JUNE 2018
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