Parker v Becton Group Holdings Pty Ltd

[2008] NSWDC 160

CITATION:	Parker v Becton Group Holdings Pty Ltd [2008] NSWDC 160
HEARING DATE(S):	25 July 2008
EX TEMPORE JUDGMENT DATE:	29 July 2008
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1 The plaintiff is to file and serve the amended statement of claim by not later than 4pm on 12 August 2008. 2 The plaintiff is to pay the defendant’s costs of the application. 3 The exhibits and the affidavit evidence are returned.
CATCHWORDS:	LIMITATIONS - Extension of time - delay pending assessment of whole person impairment - whether prima facie evidence of employment
LEGISLATION CITED:	Limitation Act 1969 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998
PARTIES:	Paul Parker (Plaintiff) Becton Group Holdings Pty Ltd (Defendant)
FILE NUMBER(S):	Newcastle 19/07
COUNSEL:	C A W Hart (Plaintiff) R Gambi (Defendant)
SOLICITORS:	Bale Boshev (Plaintiff) Moray Agnew (Defendant)

JUDGMENT

1 Paul Keith Parker was injured on a building site in Newcastle on 2 September 2002. He was employed by Becton Holdings Pty Limited, against whom he commenced proceedings on 24 January 2007 claiming work injury damages.

2 He now seeks the leave of the Court to amend the ordinary statement of claim in the proceedings to join QBE Insurance (Australia) Limited as a defendant to the proceedings. QBE was the insurer of Newcastle Scafflink Pty Limited, a subcontractor on the building site at the time of the plaintiff’s injury.

3 Since the plaintiff’s accident, Newcastle Scafflink has been placed into liquidation and the application is thereby brought pursuant to s 6 of the Law Reform (Miscellaneous Provisions) Act 1942. It has not been suggested that QBE is entitled to disclaim liability except to the extent that it is entitled to defeat the claim by relying upon the provisions of the Limitation Act 1969. The issue in this case therefore is whether it would be just and reasonable to extend the limitation period that expired on 2 September 2005 to allow the plaintiff to proceed against QBE.

4 The defendant conceded that it could produce no evidence of actual prejudice; it relied upon the general prejudice it would face, having regard to the almost six year period since the plaintiff’s injury occurred.

5 Established authority indicates that the onus is on the plaintiff to satisfy the Court that it would be just and reasonable to extend the limitation period. In deciding whether this onus has been discharged, the Court is required to have regard to the criteria listed in s 60E(1) of the Limitation Act.

6 Ss (a) of that section refers to the length of and reasons for the delay. There were essentially three issues that arose under this sub heading.

7 The first related to the instructions provided to the plaintiff’s solicitor; the second, the procedural steps to be taken before the proceedings could be instituted against the plaintiff’s employer Becton and the third, the steps taken by the plaintiff’s solicitor once he had been formally instructed.

8 The evidence was that he first instructed Mr Blissett of Bale Boshev Lawyers, in February 2003. He instructed Mr Blissett that his injury occurred when a scaffolding component described as a transom or a support beam, weighing about 3.5 kilograms, was dropped on his head and left shoulder. He did not tell his solicitor until July 2006 that the person who dropped the transom was employed by Newcastle Scafflink. Mr Blissett confirmed in his affidavit evidence, upon which he was not cross-examined, that he understood from his initial instructions that the person who dropped the transom was employed by Becton.

9 Both the plaintiff and Mr Blissett confirmed that the plaintiff was informed from the outset of the limitation period and of the procedural requirements of the Workplace Injury Management and Workers Compensation Act 1998 including the requirement that the plaintiff establish a whole person impairment exceeding 15 per cent before proceedings could be brought against Becton.

10 Before the degree of whole person impairment could be established it was necessary that the plaintiff’s injury be treated and his condition stabilised. The evidence indicated that this occurred in June 2006, when a lump sum agreement was registered with the Workers Compensation Commission pursuant to s 66A of the Workplace Injury Management and Workers Compensation Act. It was established at that time that the plaintiff suffered a greater than 15 per cent whole person impairment and that he was therefore entitled to commence his claim for work injury damages against Becton.

11 It was in the course of preparing to commence proceedings against Becton that Mr Blissett was first made aware of the allegation of involvement of an employee of Newcastle Scafflink.

12 The plaintiff was cross-examined about the reasons why he did not inform his solicitor of this fact before June 2006. His answer basically was that he was entirely unaware of its relevance and its significance. He confirmed in cross-examination that he was the only employee of Becton involved in scaffolding work on the site. He said all other scaffolding workers were employed by Newcastle Scafflink. He confirmed that the transom was dropped by a person named Richie, whom the plaintiff described as about six foot one inch tall with short, curly, dark hair and of Polynesian or Maori appearance. The plaintiff was firm in his evidence that Richie was a Newcastle Scafflink employee.

13 He said he knew that Richie and others were employees of Newcastle Scafflink because initially he was also employed by Newcastle Scafflink as a leading hand. He became dissatisfied with the conditions and practices of that company and he therefore accepted the offer of a position from Becton. In that position, he supervised and directed Richie when he worked on the site and he was aware that he was a casual employee of Newcastle Scafflink.

14 The plaintiff confirmed that he was aware from the outset that the transom was dropped by a Newcastle Scafflink employee, specifically Richie. He denied emphatically that Richie was a Becton employee. He denied that Richard Spazzal, shown in the documents as an occupational health and safety officer of Becton, was the person involved in dropping the transom. The plaintiff acknowledged that Richie was not referred to in the forms completed for the purposes of his workers compensation claim. He said he did not complete these forms, although he signed them and he made no comment about the absence of reference to the name of the person who dropped the transom because he did not think it was relevant. He denied that he had suppressed Richie’s name in order to protect Becton.

15 It was apparent from the evidence that the delay was effectively because attention was initially focused upon reaching the point where the injury had stabilised and it was possible to assess whole person impairment. Those steps took some time to allow the plaintiff’s condition to stabilise. Once fully instructed, it is apparent that the plaintiff’s solicitor proceeded to identify firstly the scaffolding company that was working on site at the time of the plaintiff’s injury and once he became aware that that company was in liquidation, he took steps to identify the insurance company involved. No criticism was directed at the delay from 1996 to the date of the hearing by reason of the nature of the enquiries that were required to be made.

16 S 60E(1)(b) relates to the issue of prejudice. As I have already noted no actual prejudice was claimed. There is a lengthy period since the time of the accident and there is therefore some basis for the complaint by the insurer concerning general prejudice. There was no evidence however that the insurer would not be in a position to meet the claim if called upon to do so, either as to liability or damages. There was no evidence that it was unlikely to be in a position to secure a fair hearing at the issues.

17 It was not suggested that Trent Austin, an employee of Newcastle Scafflink named as a witness to the proceedings, was unavailable. As to ss 1(c) and 1(d) it is apparent that the plaintiff was aware of his injury at the time of the accident. The material suggested that it significance became apparent some time after the accident but within a relatively short period thereafter.

18 Ss 1(e) deals with the question of the time at which the plaintiff became aware of the connection between the injury and the defendant’s act or omission. I accept the plaintiff’s evidence that he knew from the outset that the transom was dropped by a Newcastle Scafflink employee and that, in that sense, he became immediately aware of the connection. However, the plaintiff was a leading hand scaffolder with some prior experience of workers compensation claims where liability was not in issue. There was no evidence that he was aware that Newcastle Scafflink could be held liable for the act or omission of its employee. To the contrary, in his view, the identity of the person who dropped the transom and of the party employing that person was irrelevant. I have therefore reached the conclusion that the time at which the plaintiff became aware of the connection between the injury and the act or omission of Newcastle Scafflink, was in June 2006 when he was informed of the relevance of that factor.

19 Ss 1(f) relates to conduct of the defendant inducing the plaintiff to delay in bringing the action. Notwithstanding the evidence of confusion in respect of the identity of the scaffolding subcontractor involved and of its insurer, there was no evidence of conduct by QBE in inducing the plaintiff to delay.

20 Ss 1(g) is not of relevance.

21 Ss 1(h) relates to the extent of the plaintiff’s injury or loss. Medical evidence, if accepted, indicated that the plaintiff suffered a significant injury requiring spinal surgery with potentially significant losses.

22 Effectively QBE’s opposition to the application was that the plaintiff had not produced evidence sufficient to discharge the onus in the sense that he had not established that Newcastle Scafflink employed Richie. It pointed to the possibility that the plaintiff was referring to Richard Spazzal, Becton’s occupational health and safety representative, although this was specifically denied by the plaintiff.

23 I was referred to a copy of a facsimile on Becton letterhead dated 23 August 2003 from Richie Becton. It was suggested that a person named Richie Becton may have been working on the scaffolding on behalf of Becton. I have two reasons for rejecting that proposition. Firstly it was clear that the facsimile was sent by Richie on behalf of Becton and secondly, the handwriting appearing on that document is very similar to that appearing on documents issued by Richard Spazzal.

24 I was also referred to lists of Newcastle Scaffllink employees who attended induction or training sessions on 13 and 24 June 2002. No-one named Richie was referred to in those lists.

25 In deciding this matter, I have taken account of the fact that there was firm prima facie evidence from the plaintiff of his knowledge through his own employment with Newcastle Scafflink knew that Richie was a casual employee of that company. It was a matter for the defendant to provide material to rebut this prima facie evidence. It could have done so by calling upon the liquidator’s files or providing evidence from the witness Trent Austin. This was not done and therefore, for the purposes of the application, I proceed on the basis that an employee of Newcastle Scafflink was involved in the accident that caused the plaintiff’s injury.

26 I am therefore left with the result that:

1 The delay was explained. It suggested no absence of diligence on the plaintiff’s behalf, rather a misapprehension of legal obligations as between Becton and its subcontractors.

2 The delay was of significant length but it was not such as to cause actual prejudice or to raise concern that QBE could not secure a fair trial of the issues.

3 the plaintiff’s claimed injury, if proved at the hearing, appears to be serious and likely productive of loss, particularly in income earning capacity.

27 I therefore find it just and reasonable to extend the time within which the proceedings may be commenced against QBE Insurance Australia Limited and I grant leave to the plaintiff to file an amended ordinary statement of claim for that purpose.

28 The orders which I make are as follows:

1 The plaintiff is to file and serve the amended statement of claim by not later than 4pm on 12 August 2008.

2 The plaintiff is to pay the defendant’s costs of the application.

3 The exhibits and the affidavit evidence are returned.

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